Collocation License Agreement - Telecommunications of Nevada LLC and Telco Billing Inc.
COLLOCATION LICENSE AGREEMENT
This Collocation License Agreement (the "Agreement"), is made as of the 10
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day of June 2003 (the "Effective Date"), by and between Telecommunications of
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Nevada, LLC, a Delaware limited liability company, doing business as XO
Communications a Limited Liability Company, on behalf of itself and its
operating subsidiaries and affiliates, with an office at 2240 Corporate Circle,
Suite 100, Henderson, Nevada S9014 ("XO") and Telco Billing, Inc., a Nevada
corporation, with an office at 806 Buchannon Blvd., Suite 250-115, Boulder City,
Nevada 89005 ("Customer")- Customer and Service Provider being collectively
referred to herein as the "Parties."
WHEREAS, XO and/or its affiliates currently own or lease certain premises
(the "Premises") as described in the applicable Collocation Schedule(s) and
amendments thereto, which are executed herewith and may be executed from time to
time, and all of which are made a part hereof;
WHEREAS, Customer desires access to a portion of the Premises to locate
therein certain communications interconnection equipment (as defined below) and
cabling (the "Equipment") for the purpose of interconnecting the Equipment with
the XO telecommunications network (the "XO Network"); and
WHEREAS, XO is willing to grant Customer a license to occupy a portion of
the Premises upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Customer and XO hereby agree as follows:
AGREEMENT
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1. LICENSE TO OCCUPY AND PERMISSIBLE USE,
A. Subject to the terms provided herein, and subject to The corresponding
execution by Customer of an XO service order agreement to purchase
telecommunications services from XO to be used in conjunction with this license,
except as otherwise permitted pursuant to subsection I.D. below, XO hereby
grants to Customer a license (the "License") to install, operate, maintain, and
repair a communications system, associated equipment, lines and cables connected
thereto, and/or hardware server(s) and its associated cables (collectively, the
"Equipment," as further described below) in a portion of the Premises depicted
in the Collocation Schedule attached hereto and made a part hereof (the
"Equipment Space"). The Equipment co-located by Customer in the Premises with
the XO communications facilities and associated equipment (the "Facilities")
hereunder shall include only transmission equipment, such as optical terminating
equipment and multiplexes, and servers; provided that the Equipment shall not
include voice-switching equipment unless expressly approved in writing in
advance by XO Such approval, if granted, will become an exhibit to the
applicable Collocation Schedule. Customer agrees that XO has the right at any
time to audit Customer's traffic and business records in order to ensure
compliance with the foregoing, and Customer will cooperate with any such audit,
B. Each Collocation Schedule shall have attached thereto Exhibit A, the
Floor Plan for the Equipment Space (including Equipment layout or diagram), and
Exhibit B, Technical Services. Each Collocation Schedule shall only be effective
upon its fall execution by the Parties and together with the terms hereof and
the related exhibits shall constitute the entire agreement between the parties
with respect to the Equipment Space (collectively the "Agreement"),
C. Customer shall use the Equipment Space and the Equipment installed
within the Premises solely to provide communications services to or for the
benefit of its customers or end users. Customer shall not prohibit or interfere
with the use of the Premises or any portion thereof, by XO or other tenants,
customers or occupants of the Premises. Customer shall not sublicense, lease,
rent, share, resell or allow the use of the Equipment or Equipment Space, in
whole or in part, by any third party, including but not limited to other
providers of computer or communications services,
D. Customer may use the Equipment Space only for purposes of installing,
maintaining and operating Equipment necessary to support interconnection to the
XO Network. XO shall provide all
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services to the Customer in each location in which the Customer has collocated
Equipment in the XO facility when and where XO can provide and agree to provide
the requested services (hereinafter referred to as the "XO Right of First
Refusal"). In cases where XO has determined in its sole discretion that XO is
unable to provide certain requested services to Customer, XO will provide
written notice to Customer declining its Right of First Refusal, and the
Customer may then be permitted to cross-connect to a third party carrier in a
neutral location specified by XO where XO has created "meet-me" rooms. XO will
install and manage all cross-connections (whether to a third party carrier or to
XO), and will charge Customer accordingly. Cross-connections from one
collocating customer to another may only occur in the applicable meet-me room.
Where such a meet-me room is not available, XO will designate an alternate
location for facilitating these cross-connects. These cross-connects will also
incur a charge in addition to the charges set out in the applicable Collocation
Schedule; such additional charge will be determined by XO depending on the
specific circumstances,
E, Customer will not be permitted to utilize the Equipment Space as a work
site. Customer may not operate its business out of the Equipment Space or house
personnel in the Equipment Space. This includes, but is not limited to, the
prohibition against Customer's receipt of mail at XO Facilities. Customer must
be present to receive all deliveries at each collocation site, must schedule the
receipt of any deliveries with the site's local contact at least twenty-four
(24) hours in advance of each delivery, and must ensure that all deliveries
occur as scheduled. XO will not be held responsible in any way for the care of
any deliveries made. Deliveries of any kind must be moved away from the loading
dock or other receiving area at the collocation site within five (5) hours of
the delivery. If the delivery has not been moved by a representative of the
Customer, XO may move the delivery to another site, and will not be responsible
for the condition of the delivery, including Equipment delivered to the XO
Facilities. Equipment may not be stored at any collocation site unless it is
housed within the Customer's contracted caged area or cabinet. Mail deliveries
to the Customer may not be sent to the Collocation Site. Any mail addressed to
the Customer at the Collocation Site will be refused.
F. Customer may obtain XO Technical Services at XO Facilities in accordance
with Exhibit B, Technical Services, attached to and made a part of the
applicable Collocation Schedule.
2. CONDITION OF EQUIPMENT SPACE AND PREMISES. XO makes no warranty or
representation regarding the Premises, including, without limitation, that the
Equipment Space, the Facilities or the Premises are suitable for the License or
its intended use thereof. Customer acknowledges that it has inspected the
Equipment Space and the Premises, accepts the same "AS IS" and agrees that XO is
under no obligation to perform any work or provide any materials to prepare the
Equipment Space or me Premises for Customer,
3. LICENSE FEE AND PAYMENT.
A. Customer shall pay XO, at its office, or at such other place as XO may
designate from time to time, a license fee(s) comprised of monthly recurring
service fees set forth in the applicable Collocation Schedule for Customer's use
of the Equipment Space under the terms and conditions set forth herein,
including any applicable taxes, fees and other charges, and any non-recurring
charges (the "License Fee"), Invoices for the license Fee and other applicable
charges will be for the specified period, e.g., monthly, and are due within
thirty (30) days from the date of the invoice. License Fees and other applicable
recurring and nonrecurring charges for collocation will appear on the invoice
one (1) month in advance, with the first month's charges pro-rated to the number
of days in service for the first month, and usage based or other related charges
that vary will be billed in arrears and included on the invoices, all of which
Customer agrees to pay,
B, Invoices not paid within thirty (30) days from the date of the invoice,
unless otherwise specified on the invoice, will be past due. Customer shall pay
XO interest at the rate of 1.5% per month on all sums not paid when due
hereunder or the maximum rate allowable by law, whichever is less. Customer
agrees to reimburse XO for any costs incurred as a result of any collection
activity, including lout not limited to reasonable attorney's fees, unless
otherwise prohibited by law. Customer authorizes XO to request information from
a reporting agency to enable XO to assess Customer's credit history, that such
action is not an extension of "credit" to Customer, and that XO may, upon notice
to Customer, alter any fee, service or billing arrangements as a result of such
report or upon determination of a change in
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Customer's financial circumstances. In addition, Customer acknowledges that XO
may require Customer to submit a deposit, bond or other financial assurances to
XO if so requested by XQ.
4. TERM. The term of the License to occupy each Equipment Space shall begin on
the ''Requested Service Date," set forth in Paragraph 3 of each individual
Collocation Schedule or, on the date that XO delivers notice to the Customer
that the Equipment Space is available for use or it has completed the build- out
of tile Equipment Space, if any build-out is required and agreed to by XO,
whichever is later. The date upon which XO provides notice to the Customer that
the space is available and ready for use shall be referred to as the "Service
Commencement Date". XO will begin billing Customer for the License Fee and other
applicable charges on the Service Commencement Date. The minimum term of
Customer's License to occupy the Equipment Space shall be the period set forth
in each Collocation Schedule, but in any case not less than one (1) year (the
"Term"). The Term shall begin on the Service Commencement Date. In the event
that XO is delayed in making the Equipment Space available for use by the
Customer for any reason other than the acts or omissions of Customer, Customer
shall not be obligated to pay the License Fee as set forth in the applicable
Collocation Schedule until such time as XO makes the Equipment Space available
to Customer. XO SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM
DELAYS IN MEETING THE REQUESTED SERVICE DATE FOR THE EQUIPMENT SPACE SPECIFIED
BY CUSTOMER, OR INABILITY TO PROVIDE SERVICES TO SUCH EQUIPMENT SPACE, CUSTOMER
MAY NOT CANCEL THIS AGREEMENT IF THERE IS A DELAY IN DELIVERY OF THE EQUIPMENT
SPACE OR ANY RELATED SERVICES UNLESS SUCH DELAY IS SOLELY DUE TO XO AND SUCH
DELAY EXTENDS NINETY (90) DAYS BEYOND THE REQUESTED SERVICE DATE; PROVIDED,
HOWEVER, IN NO EVENT MAY CUSTOMER CANCEL IF XO HAS AGREED TO CONSTRUCT OR IS
CONSTRUCTING FACILITIES IN THE EQUIPMENT SPACE.
5. RENEWAL, XO will notify Customer, in writing, at least forty-five (45) days
prior to the expiration of the Agreement, regarding the pending expiration of
this Agreement and the automatic renewal of the Agreement, If neither the
Customer nor XO cancel the Agreement before the end of the Term, this Agreement
will automatically renew for a similar term and at the rates specified in the
applicable Collocation Schedule. Any renewal or continuation of the License for
each Equipment Space shall be contingent on the election by XO to continue to
own or lease the Premises in which the Equipment Space is located for the
duration of the Renewal Period(s), such election to be exercised at the sole
discretion of XO.
6. RESERVATION OF RIGHTS/NON-EXCLUSIVITY. XO reserves the right to grant,
renew or extend similar licenses to others for locating equipment and facilities
in the Premises. Customer acknowledges that it has been granted only a license
to use and occupy the Equipment Space and that it has not been granted, nor does
it possess, any real property interests in the Equipment Space. No use of the
Equipment Space or XO Premises by Customer or payment of any charges required
under this Agreement shall create or vest in Customer any easements or other
ownership or real property interest of any kind or nature. If this Agreement
shall be construed by the landlord or the sub-landlord of the XO Premises (if
applicable) to be a violation of the lease or sublease under which XO occupies
the XO Premises, then upon the request of XO, Customer shall either enter into
an agreement approved by such landlord or sub-landlord, or immediately remove
Customer's Equipment from the XO Premises. XO agrees to use commercially
reasonable efforts to cooperate with Customer in obtaining the approvals
Customer may need to obtain from the landlord or sub-landlord.
7. ACCESS TO XO PREMISES. Subject to the terms and limitations described
herein, including XO reasonable security measures, XO shall provide Customer
reasonable access to the Premises in order to access the Equipment Space, in
accordance to the specifications set forth in the Collocation Schedule, so that
Customer may perform installation, operation, maintenance, replacement and
repair functions. All such access and other activities shall be subject to
Customer providing XO with reasonable advance notice, and shall be at Customer's
expense. During such access, unless unrestricted access is identified and
permitted pursuant to the applicable Collocation Schedule, Customer must be
accompanied at all times by an XO designated representative and Customer will
incur the Escort Charges as follows:
Normal XO Business Hours (Monday-Friday, 8:00 am
to 5:00 pro local time (except XO holidays)): $75 per hour
XO Non Business Hours (all other times, Holidays and Sundays):$100 per hour
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8. INSTALLATION AND OTHER WORK.
A. Prior to the commencement of any work at or around the Premises,
Customer shall, at its cost and expense, prepare and deliver to XO working
drawings, plans and specifications (the "Plans"), detailing the technical
characteristics, location and size of the Equipment and/or die Equipment Space,
specifically describing the proposed installation and related work, and
detailing the schedule for all installation activities related thereto. No work
shall commence until XO, in its sole discretion, has approved the Plans in
writing and Customer has received such written approval. The Equipment shall be
designed and constructed so as to prevent electromagnetic and radio frequency
signal leakage. XO shall allow Customer to connect the Equipment to the XO
Facilities in accordance with industry-accepted practices and procedures.
B. Customer shall:
I. perform such installation and other work in a safe manner
consistent with the Equipment manufacturers' specifications, industry
standards and practices and other requirements provided by XO;
II. perform such construction and other work so as to minimize
interference with the operation of the Premises and the occupants'
activities and businesses;
III. perform heavy construction or installation activities, which
would reasonably be considered as disruptive or noisy, before 8:00
a.m. and after 5:00 p.m. local time or as otherwise reasonably
requested by XO;
IV. obtain necessary federal, state and municipal permits, licenses
and approvals, prior to the commencement of any installation and other
work;
V. conduct its installation or work activities with
manufacturer-certified technicians;
VI. be responsible for safety conditions in the areas of work
performance at all times;
VII. keep the installation or work areas safe and orderly at all
times; and
VIII upon completion of installation or other work, leave the Premises
clean and free from all of its materials, tools, and equipment not
required after installation and from all rubbish and debris which
result from such installation activities.
C. XO shall have the light to order Customer to stop its installation or
other work activities, without liability to XO, if XO determines such activities
are interfering with the operation of the Premises or the occupants7 activities
and quiet enjoyment thereof,
9. UTILITIES AND INTERRUPTIONS.
A. During the Term, XO shall use commercially reasonable efforts to furnish
to Customer electrical power necessary to meet the reasonable requirements of
Customer at the Premises. If the power provided by XO causes interference with
the proper operation of Customer's Equipment, Customer will be responsible for
providing at Customer's sole expense any filtering or regulation devices within
the Equipment Space, to correct the interference.
B. To the extent Customer chooses to install a separate electrical panel
and meter for the Equipment, Customer shall pay all costs associated with
installation of such separate electrical panel and meter in the Equipment Space.
Customer shall pay, and otherwise be responsible for and indemnify XO against
all electrical, HVAC and other utility costs attributable to such separate panel
and meter installed for the Equipment and all of Customer's activities in the
Premises. Such payment will be made by Customer directly to the applicable
utilities and vendors if so billed, or Customer shall pay Customer's pro
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rata share of such costs to XO, including a management fee, if XO is billed by
the utilities. Customer acknowledges that such pro rata utility costs paid to XO
may vary by region and arc subject to change with thirty (30) days notice to
Customer.
C. XO shall use commercially reasonable efforts to notify Customer in
advance of any planned utility or other interruptions or outages which may
interfere with Customer's use of the Equipment Space. Further, the Parties shall
use reasonable commercial efforts to avoid any unnecessary interruptions and,
where required, to work with each other to plan and coordinate necessary service
and utility interruptions so as to minimize disruptions to Customer's Equipment
and XO Facilities. However, XO shall not be liable, including without limitation
to Customer or any of its customers or end users, for any damages, liabilities
or expenses resulting from or caused by such interruptions or outages, whether
01 not due to XO negligence or otherwise,
10. EQUIPMENT OWNERSHIP AND MAINTENANCE,
A. The Equipment shall belong to Customer and shall be located in the
Premises at the sole risk of Customer, and XO shall not be liable for damage
thereto or theft, misappropriation or loss thereof, except in the event of XO
gross negligence or willful misconduct. All Equipment supplied by Customer shall
be conspicuously labeled by the Customer as such.
B. Customer shall at its sole expense maintain and repair its Equipment,
including without limitation to avoid hazard or damage to the Facilities or
injury to XO employees, agents and suppliers or to the public. In case where
additional protection facilities are required, the same shall be provided by
Customer, at Customer's sole expense. XO shall have no responsibility for the
maintenance and repair of the Equipment.
C. At the expiration or termination of this Agreement or any individual
Collocation Schedule, Customer will remove the Equipment and Customer's personal
property from the Premises in a neat and orderly manner, and repair all damage
caused by such removal, at Customer's sole cost and expense. Any property not so
removed within sixty (60) days after the expiration or termination of this
Agreement or any individual Collocation Schedule shall be deemed the property of
XO and Customer shall be liable for all costs incurred by XO from the removal
and storage, if applicable, of the Equipment which Customer failed or refused to
remove as well as any costs incurred by XO for the repair of the Premises as a
result thereof.
11. LIMITATIONS ON USE AND RELOCATION.
A. XO may limit the use of the Equipment Space or any portion thereof by
Customer hereunder when necessary because of conditions beyond its control as
set forth in Section 21.M. herein and damages are limited pursuant to Article 20
set forth below. In addition, XO reserves the right at all times during the Term
to suspend any and all services and/or Facilities to be provided hereunder,
including, without limitation to furnishing of electrical power, and remove,
change or otherwise terminate the operation of Customer-supplied Equipment
installed in the Equipment Space without notice, if XO deems, in its sole
discretion, that such actions are necessary to protect the public or XO
personnel, agents, and XO Facilities or services from damages or injury of any
kind. Where possible, XO will notify Customer promptly of such action and work
in cooperation with Customer to effect such remedies so as to permit the
Equipment to be returned to operation in an acceptable manner,
B. XO shall have the right to relocate or require the relocation of the
Equipment if such relocation is necessary or desirable, in XO reasonable
judgment, including without limitation due to damage to the Premises. In such
event, XO shall provide Customer with reasonable advance notice of the need to
relocate such Equipment, and the Parties shall meet to agree upon the activities
required for such relocation. Customer shall be responsible for all costs
resulting from such relocation of the Equipment. If Customer and XO are unable
to agree upon the terms of such relocation, Customer may terminate the
applicable Collocation Schedule, subject to Customer's performing its
obligations resulting from termination and paying all sums due prior to actual
termination.
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12. ENVIRONMENTAL RESPONSIBILITY,
A. XO and Customer agree to comply with applicable federal, state and local
environmental, health and safety laws and regulations, including U.S.
Environmental Protection Agency ("EPA") regulations issued under the Clean Air
Act, Clean Water Act, Resource Conservation and Recovery Act, Comprehensive
Environmental Response, Compensation and Liability Act, Superfund Amendments and
Reauthorization Act and the Toxic Substances Control Act and OSHA regulations
issued under the Occupational Safety and Health Act of 1970 and all similar or
related state laws. Each Party has the responsibility to notify the other if
compliance inspections occur and/or citations are issued that impact any aspect
of this Agreement or involve any exposure to hazardous materials at an XO
facility.
B. To the extent required by federal, state or local laws, XO and Customer
are each responsible for preparing and distributing or posting any and all
notices of known, recognized or suspected physical hazards or chemical hazards,
including but not limited to providing and posting Material Safety Data Sheets
("MSDSs") for materials present on the Collocation Site or brought on site to
the Collocation Site.
C. Customer owns any materials brought to or used at the Collocation Site
by Customer or remaining at the Collocation Site as a result of Customer's
activities. Customer shall indemnify XO for any claims or liabilities arising
from the effects of these materials or the presence of the materials themselves.
Customer shall not take any action that creates substantial new safety or
environmental hazards nor shall Customer use or store hazardous materials other
than those already present as a result of XO's activities at the Collocation
Site. Customer shall have plans in place to address any release or exposure
resulting from the presence of hazardous materials present at the Collocation
Site and if requested by XO, Customer shall demonstrate to XO that its plans are
adequate and will result in the appropriate level of emergency response for
materials present at the Collocation Site.
D. Customer shall, at its sole cost and expense, obtain, maintain and
comply with environmental permits, approvals, or identification numbers, to the
extent such permits, approvals, or identification numbers are required under
applicable federal, state or local laws. If the relevant regulatory authority
refuses to issue a separate permit, approval, or identification number to
Customer, Customer may seek permission from XO to apply for coverage under or to
use an existing XO permit, approval, or identification number, but only if
allowed by applicable federal, state or local laws. If XO approves Customer's
use of XO's permit, approval or identification number, Customer shall, at its
sole cost and expense, take all necessary steps to obtain the regulatory
approvals required for Customer's use of XO's permit, approval or identification
number. Customer shall comply with all of XO's environmental
practices/procedures relating to the activity in question, including use of
environmental "best management practices" ("BMP") and/or selection of
disposition vendors and disposal sites in accordance with XO selection criteria.
Notwithstanding Customer's compliance with this provision, Customer shall
indemnify, defend and hold XO harmless for any claims or liabilities arising out
of Customer's use of XO's permit, approval or identification number. Customer
shall also provide XO with copies of all documents, reports, data or other
information associated in any way with Customer's use of XO's permit, approval
or identification number and shall cooperate with XO if XO is required to
complete any reports or respond to other inquiries associated with Customer's
use of XO's permit, approval or identification number.
E. Customer shall be solely responsible for compliance with all XO
security, fire, safety, environmental and building practices/codes by its
visitors, employees and contractors. Customer shall provide any necessary
training to its visitors, employees and contractors who work in XO facilities.
F, Customer shall, at its sole cost and expense, prepare and/or submit
emergency response plans and community right-to-know reporting required by law
for Customer's facilities at the Collocation Site. Customer shall provide XO
with a copy of all such plans and reports. If XO is required to prepare and/or
submit emergency response plans and community right-to-know reporting, Customer
shall provide XO with information in Customer's possession necessary to complete
such plans or reports and shall cooperate with XO in the implementation of any
such plans. Customer shall be solely responsible for payment of any fees
associated with its plans or reports. If XO is required to pay fees for plans or
reports
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associated with the facility as a whole, Customer and XO shall develop a cost
sharing procedure and Customer shall reimburse XO for its share of such costs.
G. Notwithstanding Article 14 below, with respect 10 environmental
responsibility under this Article 12, XO and Customer shall indemnify, defend,
and hold each other harmless from and against any claims (including without
limitation, third party claims for personal injury or real or personal property
damages), judgments, damages (including direct, indirect and punitive damages),
penalties, fines, forfeitures, cost, liabilities, interest and losses that are
either (i) proximately caused by the indemnifying Party's gross negligence or
willful misconduct regardless of form, or (ii) in connection with the violation
or alleged violation of any applicable requirement with respect to the presence
or alleged presence of contamination arising out of the indemnifying Party's
acts or omissions concerning its operations and/or activities at the Facilities.
H. Any activities impacting safety, health or the environment must also be
harmonized with the specific agreement and the relationship between XO and the
private landowner or lessor, if any. Customer's activities may be limited by
such agreements, including but not limited to limitations on Equipment access.
13. CUSTOMER'S COVENANTS AND WARRANTIES.
A. Customer hereby covenants and warrants:
I. To keep the Equipment Space and the Equipment in good order,
repair and condition throughout the Term, to provide XO with full and
free access to the Equipment at all times, and to promptly and
completely repair all damage to the Premises caused by Customer;
II. To comply with federal, state and municipal laws, orders, rules
and regulations applicable to its activities and the Equipment;
III. Not to disrupt, adversely affect or interfere with XO or other
providers of services in the Premises or with any occupant's use and
enjoyment of its equipment, its leased/occupied premises or the common
areas of the Premises;
IV. To pay its monthly license fee when due and to provide written
notice to XO if such payment is disputed; and
V. To comply with the limitations on permissible Equipment and use
of the Premises as set out in Article 1 of this Agreement.
B. Customer represents and warrants to XO that it has obtained or will
obtain, at Customer's sole cost and expense and prior to the installation of any
of Customer's Equipment, from all applicable public and/or private authorities,
all leases, licenses, authorizations, permits, rights of way, building access
agreements and easements necessary to operate, maintain and repair Customer's
Equipment within the Premises. Customer further represents and warrants that it
will maintain all such authorizations throughout the term of this Agreement.
14. INDEMNIFICATION. Customer shall defend, indemnify, and hold XO, its
principals, officers, directors, agents, and employees harmless from and against
any loss, cost, damage, liability, claims and expenses of any kind arising
directly or indirectly from the installation, operation, maintenance and repair
of Customer's Equipment, or from Customer's or any of Customer's subcontractors'
or agents' acts or omissions including, but not limited to, reasonable
attorneys' fees and court costs, except to the extent such loss, damage, cost or
expense is due to the gross negligence or willful misconduct of XO or its
employees or agents. The provisions of this Article 14 shall survive termination
of this Agreement.
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15. INSURANCE.
A. Customer shall maintain such insurance, including through a blanket
policy, as will fully protect both Customer and XO from any and all claims by
employees of Customer under the Workers' Compensation Act or employer's
liability laws, including any employers' disability insurance laws, and from any
and all other claims of whatever kind or nature for any and all damage to
property or for personal injury, including death to anyone whomsoever, that may
arise from Customer's acts or omissions, including without limitation
installation, operations, maintenance or repair services, in or around the
Premises by Customer or by anyone directly or indirectly engaged or employed by
Customer. Customer shall provide XO with certificates evidencing the required
coverage before XO begins any installation work or services in or around the
Premises and indicating that XO shall be notified not less than thirty (30) days
prior to any cancellation or material change in any coverage. Such insurance
shall also name XO as an additional insured party under the coverage.
B. Customer's General Liability Insurance shall have a combined single
limit of $5,000,000 (including any applicable primary and umbrella or excess
coverage).
C. Insurance described in Paragraphs (A) and (B) of this Article 15 shall
be maintained by Customer throughout the term of this Agreement and any period
during which any claims arising from this Agreement are or may be outstanding.
Upon Customer's default in obtaining or delivering any such policy or
certificate of insurance or Customer's failure to pay the premiums therefore, XO
may (but shall not be obligated to) secure or pay the premium for any such
policy and charge Customer the cost of such premium, which Customer agrees to
pay, or XO may terminate this Agreement, in whole or in part, without liability
to Customer.
16. LIENS. Customer shall not permit any mechanic's, material men's or other
liens to be filed against all or any part of the Premises, Equipment Space or
Facilities, by reason of or in connection with any repairs, alterations,
improvements or other work contracted for or undertaken by Customer. Customer
shall, at XO request, provide XO with enforceable, conditional and final lien
releases (or other reasonable evidence demonstrating protection from liens) from
its contractors or other parties performing such work. XO shall have the right
at all reasonable times to post on the Premises and record any notices of non-
responsibility which it deems necessary for protection from such Hens. If any
such liens arc filed, Customer shall, at its sole cost, within thirty (30) days
after filing thereof, cause such lien to be released of record or bonded so that
it no longer affects title to the Premises, Equipment Space or Facilities. If
Customer fails to cause such lien to be so released or bonded within such thirty
(30) day period, XO may, without waiving its rights and remedies based on such
breach, and without releasing Customer from any of its obligations, cause such
lien to be released or bonded. Customer shall reimburse XO, within ten (10)
business days after receipt of invoice from XO, any sum paid by XO to obtain
such bond or release.
17. SUBCONTRACTORS. Customer may subcontract any portion of work within the
Premises contemplated by this Agreement to any entity competent to perform such
work. However, Customer must obtain XO written approval before utilizing any
subcontractor to perform any activities within the Premises under this Agreement
and provide evidence that subcontractor maintains the same or additional
insurance coverage as required by Customer under this Agreement. In no event
shall such subcontract relieve Customer of any of its obligations or liabilities
under this Agreement.
18. CONFIDENTIALITY. The Parties agree that all documentation and information
provided by the other shall be used solely in connection with the installation,
operation, maintenance, and repair of the Equipment, that all such documentation
and information shall be deemed proprietary to the disclosing party and shall be
received and maintained in confidence. Customer acknowledges that all
information about XO Customers and their operations is confidential and may not
be disclosed and that Customer agrees it will not use any such information to
solicit any business from XO Customers. Each Party shall preserve the other
Party's confidential information provided to it hereunder with the same degree
of care in protecting its own confidential or proprietary information, but in no
event less than a reasonable standard of care shall be used, and where
requested, Customer shall execute and comply with the terms of an XO standard
General Non-Disclosure Agreement
XO CONFIDENTIAL
8
<PAGE>
19. TERMINATION.
A. TERMINATION FOR BREACH. XO may terminate the Agreement, in whole or in
part, if the Customer materially breaches any warranty, representation,
agreement, or obligation contained or referred to in the Agreement, or any other
agreement with XO, provided XO has given Customer notice of such breach and
Customer has failed to cure such breach within a thirty (30) day period
following notification, unless another cure period is noted in Paragraph B below
or such other applicable agreement; provided further, however, in the event of a
material breach by Customer, XO may terminate the Agreement, in whole or in
part, immediately and Customer shall be subject to liability for early
termination as set forth in Paragraph D below.
B. EVENTS OF MATERIAL BREACH. Events of material breach by Customer of a
warranty, agreement, representation, or obligation include, but are not limited
to:
I. Interference or damage caused to Facilities or other equipment or
facilities at the Premises by the installation, operation,
maintenance, replacement or repair of the Equipment, which breach must
be cured within twenty-four (24) hours.
II. Failure by Customer to pay the License Fee or any charges under
an XO service order, and interest as and when due, which breach must
be cured within a ten (10) calendar day period.
III. Breach by Customer of any material non-monetary provision of the
Agreement or an XO service order.
IV. If Customer abandons or deserts the Equipment during the Term
hereof or Customer removes from the Premises (and does not replace or
substitute equipment for) all of the Equipment.
V. Customer's failure to complete all installation activities within
one (1) month of the Effective Date of an individual Collocation
Schedule.
VI. Failure to observe the use provisions and limitations on
permissible Equipment as set forth in the Agreement, including Article
1 above, which breach must be cured immediately upon notice.
VII. Cancellation/abandonment of a site pursuant to a Collocation
Schedule either prior to or after Customer has taken possession of the
Equipment Space and/or XO has begun the build-out of the requested
space.
VIII. Violation of the confidentiality/press release provisions
contained herein, which violation must be cured immediately upon
notice.
C. COMMUNICATION FACILITIES. Notwithstanding anything contained herein to
the contrary, in the event XO is required to construct and/or acquire special
facilities or equipment in connection with providing the Equipment Space to
Customer, Customer acknowledges and agrees that XO may therefore incur
significant costs and expenses in preparing such Equipment Space to Customer,
including but not limited to costs associated with constructing and/or acquiring
special facilities or equipment necessary for delivery of the Equipment Space to
Customer. In addition to any other rights and remedies XO may have at law, in
equity or as provided herein, Customer agrees that if Customer cancels this
Agreement or any individual Collocation Schedule after signature but prior to
the Service Commencement Date, Customer shall reimburse XO for all costs and
expenses XO incurred in constructing and/or acquiring such special facilities or
equipment.
D. EARLY TERMINATION CHARGE/BREACH.
1. PRIOR TO SERVICE COMMENCEMENT. In addition to any other rights and
remedies XO may have at law or in equity, including those set forth in Section
19.C above, Customer agrees that if Customer
XO CONFIDENTIAL
9
<PAGE>
cancels, terminates or breaches any applicable Collocation Schedule after
execution of the Collocation Schedule but prior to the Service Commencement
Date, Customer shall pay XO an early termination charge in an amount equal to
two (2) months of the License Fee set forth on the applicable Collocation
Schedule(s).
2. On or After Service Commencement. Except as otherwise required by law,
if, after the Service Commencement Date, Customer: (a) commits and fails to cure
(to the extern cure is permitted herein) a material breach of the Agreement,
including any Collocation Schedule; or (b) Customer cancels or terminates this
Agreement or any Collocation Schedule at any time before completion of the Term
or any renewal Term, then XO may elect to pursue one or more of the following
courses of action, as applicable: (i) terminate this Agreement or any
Collocation Schedule, whereupon all License Fees, including all non-recurring
charges, for the remaining Term are immediately due and payable, and terminate
any related service order agreements, whereupon all early termination charges
set forth therein are also due; (ii) take immediate appropriate action to
enforce payment, including suspension or discontinuance of the use of or access
to the Premises, Equipment Space or Facilities or any part thereof, including
discontinuing all services to such Equipment Space or Customer equipment; and/or
(iii) pursue any other remedies as may be available at law or in equity. Any
termination of this Agreement, any Collocation Schedule or any related services
by XO shall not be construed as an exclusive remedy and shall not preclude or
waive XO's right to pursue any other available remedies. It is agreed that XO
damages in the event of cancellation or termination shall be difficult or
impossible to ascertain. The provisions of this Article 19 are intended,
therefore, to establish liquidated damages in the event of such event and are
not intended as a penalty.
20. DISCLAIMERS
A. The warranties and remedies set forth in this Agreement constitute the
only warranties and remedies with respect to this Agreement. SUCH WARRANTIES ARE
IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR USE.
B. DAMAGES LIMITATION AND DISCLAIMER. IN NO EVENT SHALL XO BE LIABLE TO
CUSTOMER OR TO CUSTOMER'S END USERS OR OTHER THIRD PARTIES FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT
LIMITATION ANY LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, ARISING UNDER OR
AS A RESULT OF THIS AGREEMENT, EVEN IF XO HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR EVEN IF DUE TO XO'S OWN NEGLIGENCE, FURTHERMORE, IN NO EVENT
WILL XO BE LIABLE TO CUSTOMER FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING OUT
OF CUSTOMER'S USE OF THE PREMISES OR THE SERVICES PROVIDED HEREUNDER, UNLESS
SUCH DAMAGES ARE THE DIRECT RESULT OF XO'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. IN ANY EVENT, XO'S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED
THE TOTAL LICENSE FEES PAID TO XO UNDER THE APPLICABLE COLLOCATION SCHEDULE IN
THE PRIOR THREE (3) MONTHS OF THE AGREEMENT.
21. MISCELLANEOUS
A. ASSIGNMENT. Customer shall not assign, transfer or otherwise encumber
any interest it has hereunder or may have in the Equipment Space, this Agreement
or delegate its duties hereunder without the prior, written consent of XO, which
consent will not be unreasonably withheld. This Agreement shall inure to the
benefit of and be binding on all successors and assigns. Any assignment in
contravention of these provisions shall be null and void.
B. NOTICE. Every notice required or permitted hereunder shall be in writing
and shall be delivered to the Party's address set forth in the preamble of the
Agreement. Either Party may change its address for the purpose of notice
hereunder by providing the other Party with notice of the new address.
C. GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the Commonwealth of Virginia. Venue for any action between the
Parties shall be in the State Courts in
XO CONFIDENTIAL
10
<PAGE>
Fairfax County, Virginia 01 the Federal District Court for the Eastern District
of Virginia, and Customer agrees to accept exclusive personal jurisdiction of
such courts.
D. SEVERABILITY. If any term or condition of the Agreement shall to any
extent be held invalid or unenforceable by a court of competent jurisdiction,
the remainder of the Agreement shall not be affected thereby, and each term and
condition shall be valid and enforceable to the fullest extent permitted by law.
E. NON-WAIVER. Any failure or delay by either Party to exercise or
partially exercise any right, power or privilege under the Agreement shall not
be deemed a waiver of any such right, power, or privilege under the Agreement.
F. MODIFICATIONS. No modifications or amendments to the Agreement and no
waiver of any provisions hereof shall be valid unless in writing and signed by
duly authorized representatives of the Parties. In addition, electronic
acceptance of any additional terms, conditions or supplemental contracts,
including Collocation Schedules, by a Party's employee or agent shall not be
valid or binding on a Party unless accepted in writing by authorized
representatives of both Parries.
G. BINDING EFFECT. The Agreement binds the named Parties and each of their
employees, agents, independent contractors, representatives and persons
associated with it.
H. AUTHORIZATION. Both Parties have full power and authority to enter into
and perform this Agreement. The representatives signing this Agreement on behalf
of the Parties have been properly authorized and empowered to enter into this
Agreement.
I. REGULATORY AND LEGAL COMPLIANCE. Customer acknowledges that the
respective rights and obligations of each Party as set forth in this Agreement
are based on existing law and the regulatory environment as it exists on the
date of execution of this Agreement. In the event of any effective legislative,
regulatory or judicial order, rule, regulation, arbitration or dispute
resolution or other legal action affecting the provisions of this Agreement, XO
may, by providing written notice to Customer, require that the affected
provisions of this Agreement be renegotiated in good faith. This Agreement shall
be amended accordingly to reflect the pricing, terms and conditions of such
Amendment. In addition, to the extent related to XO services being used in
connection with this License, Customer warrants that all traffic being delivered
by Customer to XO and all traffic that XO delivers to Customer that has
originated in the local calling area in which Customer's terminating NXX is
assigned and/or in which such traffic is terminated to Customer, is local
traffic or is legally entitled to be treated as local traffic under all
applicable federal, state and local laws, administrative and regulatory
requirements and any other authorities having jurisdiction over the subject
matter of this Agreement.
J. ACKNOWLEDGMENT OF UNDERSTANDING. The Parties acknowledge that they have
read the Agreement, understand it and agree to be bound by its terms and
conditions. Further, the Parties agree that the Agreement is the complete and
exclusive statement of the agreement between the Parties relating to the subject
matter of the Agreement, and supersedes all proposals, letters of intent or
prior agreements, oral or written, and all other communications and
representations between the Parties relating to the subject matter of the
Agreement.
K. ATTORNEYS' FEES AND COSTS. If any litigation is brought to enforce, or
arises out of, the Agreement or any term, clause, or provision hereof, the
prevailing Party shall be awarded its reasonable attorneys' fees together with
expenses and costs incurred with such litigation, including necessary fees,
costs, and expenses for services rendered, as well as subsequent to judgment in
obtaining execution thereof.
L. INDEPENDENT CONTRACTOR RELATIONSHIP. Nothing contained herein shall be
construed to imply a joint venture, partnership, or employer and employee
relationship between the Parties. Neither Party shall have any right, power or
authority to create any obligation, express or implied, on behalf of the other
without the prior written approval of the other Party, except as defined in this
Agreement or as mutually agreed to under the terms of this Agreement. The
employees or agents of one Party shall not be deemed or construed to be the
employees or agents of the other Party for any purpose whatsoever.
XO CONFIDENTIAL
11
<PAGE>
M. FORCE MAJEURE. Neither Party shall be liable or responsible for delays
or failures in performance resulting from events beyond the reasonable control
of such Party. Such events shall include but not be limited to acts of God,
strikes, lockouts, labor disputes, riots, acts of war, epidemics, acts of
government, fire, power failures, nuclear accidents, earthquakes, unusually
severe weather, or other disasters, whether or not similar to the foregoing.
Customer shall not be entitled to abate payment of the License Fee during the
pendency of any delays or failures in performance caused by or resulting from an
event beyond the reasonable control of a Party.
N. REMEDIES. Except as otherwise provided for herein, no remedy conferred
by any of the specific provisions of the Agreement is intended to be exclusive
of any other remedy. Each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder, now or hereafter existing at law
or in equity or by statute or otherwise. The election of any one or more
remedies by either Party shall not constitute a waiver of the right to pursue
other available remedies. If Customer commits a material breach or default of
this Agreement as set forth in the Agreement, all monies due hereunder will
become due and payable immediately.
O. SURVIVAL. The terms, conditions and warranties contained in the
Agreement that by their sense and context are intended to survive the
performance hereof by the Parties hereunder shall so survive the completion of
the performance, cancellation or termination of the Agreement.
TELECOMMUNICATIONS OF NEVADA, TELCO BILLING, INC.
LLC D/B/A XO COMMUNICATIONS A LIMITED
LIABILITY COMPANY
By /s/ Michael S. Craft By /s/ Carl Puerschner
--------------------------------- ----------------------------
Printed Name Michael S. Craft Printed Name Carl Puerschner
----------------------- ------------------
Title VP Finance Title D/T
------------------------------ -------------------------
Date 6-19-2003 Date 6-10-2003
------------------------------- --------------------------
XO CONFIDENTIAL
12
<PAGE>
COLLOCATION SCHEDULE NO. 1
This Collocation Schedule is made on this 1 day of August, 2003 and subject to
--- ------
all definitions, terms and conditions of that certain Collocation License
Agreement, dated 6-10-2003 (the "Agreement") by and between Telecommunications
---------
of Nevada, LLC, a Delaware limited liability company, doing business as XO
Communications a Limited Liability Company, with an office at 2240 Corporate
Circle, Suite 100, Henderson, Nevada 89014 ("XO"), and Telco Billing, Inc., a
Nevada corporation, with an office at 806 Buchannon Blvd., Suite 250-115,
Boulder City, Nevada 89005 ("Customer"). This Collocation Schedule also has the
following Exhibits: The Floor Plan for the Equipment Space, identified as
Exhibit A; and Technical Services, identified as Exhibit B. Capitalized terms
used herein but not defined shall have the meanings as set forth in the
Agreement.
1. ADDRESS OF PREMISES 2. SPACE ALLOCATION
2250 Corporate Circle One (1) cabinet
Henderson, NV 89014
3. MINIMUM TERM: Two (2) Years 4. RENEWAL PERIOD
requested service date: ______ (outline any renewal options offered)
---------------------------------------
5. ACCESS TO PREMISES: (CHECK ONE)(1)
X 24 x 7 unescorted access is provided. Customer will receive 3 cards per
-----
site. Additional cards provided at $50/card.
Escorted access is required. Applicable fees are set out in the Agreement.
-----
6. MONTHLY RECURRING SERVICE FEES - BASE PRICING
Occupancy Fees
------------ ------------ -------- -------------
Monthly Nonrecurring Quantity Total
Recurring Charge Monthly
Charge Recurring
Charge
------------ ------------ -------- -------------
Cage Option: price per square foot $ 65.00 N/A $ .00
------------ ------------ -------- -------------
Cabinet Option: price per cabinet including 20 amps AC $ 600.00 1 $600.00
power
------------ ------------ -------- -------------
Installation $ 2500.00 1
------------ ------------ -------- -------------
Additional Power Fees
------------ ------------ -------- -------------
Price Per Nonrecurring Quantity Total
amp per Charge Monthly
month Recurring
Charge
------------ ------------ -------- -------------
DC Power: in 10 Amp increments $ 15.00 N/A $.00
------------ ------------ -------- -------------
120 Volt AC Power with UPS backup: in 10 Amp increments $ 16.00 N/A $.00
------------ ------------ -------- -------------
120 Volt AC Power without UPS backup; in 10 Amp $ .00 20 $.00
increments (included
w/ cabinet)
------------ ------------ -------- -------------
---------------
1 Most locations permit 24x7 unescorted access, but there are several XO
buildings which do not permit 24x7 unescorted access (e.g., Sears Tower in
Chicago).
XO CONFIDENTIAL
13
<PAGE>
Cross Connect Fees(2)
To XO
------------------ --------------- ---------- -------- -------- --------
Total Non-
Monthly Non- Monthly Total
Recurring Recurring Recurring Recurring
Charge Charge Quantity Charges Charges
------------------ --------------- ---------- -------- -------- --------
DS1 $ 50.000 $ 200.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
DS3 $ 150.00 $ 300.00 1 $ 150.00 $ 300.00
------------------ --------------- ---------- -------- -------- --------
OC3 $ 500.00 $ 800.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
OC12 $ 800.00 $ 2000.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
OC48 $ 2000.00 $ 2500.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
Ethernet -lOBaseT $ 100.00 $ 200.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
Ethernet -100BaseT $ 600.00 $ 1000.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
To Alternate Carrier (based on Revenue Commitment)(3)
---------------------------------------------------------
DS1 $ 150.00 $ 300.00 N/A
------------------ --------------- ---------- -------- -------- --------
DS3 $ 450.00 $ 1,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC3 $ 1,600.000 $ 2,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC12 $ 3,000.00 $ 5,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC48 $ 8,000.00 $10,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
Ethernet - lOBaseT $ 800.00 $ 800.00 N/A
------------------ --------------- ---------- -------- -------- --------
Ethernet -100BaseT $ 1,000.00 $ 1,500.00 N/A
------------------ --------------- ---------- -------- -------- --------
Infra-Building
---------------------------------------------------------
DS1 $ 150.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
DS3 $ 450.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC3 $ 1,600.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC12 $ 5,750.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC4S $ 21,000.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
In addition to the Base Monthly Recurring Occupancy Fees listed above, discounts
are provided based on the volume of services billed by the Customer on the same
account as the collocation site for each month and the Term agreed to for the
site. The discount percentage may vary from month to month and will appear as a
single line item on the Customer's invoice. The discount percentage applies only
to the Monthly Recurring Charges for the Occupancy Fee, and does not apply to
power, cross-connect, installation, or any other charges related to collocation
service. The discount schedule is listed below:
Billed Revenue (per Applicable Discount
month)
1YR 2YR 3YR
0-S25K 0% 0% 0%
S2SK-S100K 4% 6% 8%
S100K-S300K 6% 8% 10%
S300K AND ABOVE 8% 10% 12%
---------------
(2) Cross connects are provided in accordance with and subject to XO's Terms and
Conditions as set out in the applicable service agreement.
(3) XO will forfeit its First Right of Refusal only if the Customer has been
approved on an individual case basis by the XO Product Manager.
XO CONFIDENTIAL
14
<PAGE>
Exhibit A to this Schedule depicts the work to be performed by XO to prepare the
Equipment Space for Customer occupancy and use. By signing below, Customer
acknowledges and agrees that it has read and it accepts all the terms and
conditions in the Agreement referenced above, of which this Collocation Schedule
is a pan.
CUSTOMER: Telco Billing, Inc. XO
By: /s/ Carl Puerschner By: /s/ Michael S. Kraft
------------------- --------------------
Name: Carl Puerschner Name: Michael S. Kraft
----------------- ------------------
Title: DIT Title: VP Finance
---------------- -----------------
Date: 6-10-2003 Date: 6-19-2003
----------------- ------------------
XO CONFIDENTIAL
15
<PAGE>
EXHIBIT A
to Collocation Schedule No. 1 between XO and Telco Billing, Inc.
Insert Collocation Form depicting Requirements
Currently in Microsoft Excel Format
Insert Floor Plan depicting space requirements and/or Equipment layout or
diagram (if applicable)
XO CONFIDENTIAL
16
<PAGE>
XO(TM) Telco Collocation Request Form
-------------------------------------
EXHIBIT A
to Collocation Schedule No. 1
Submission Date: **Please note Requested Delivery Date is not guaranteed
REQUESTED DELIVERY DATE: REP NAME: Kevin Kossman/ Daryl Chavez
CUSTOMER NAME: Telco Billing, Inc. DESK PHONE: 602-324-6262
Address of Install: 2250 Corporate Circle CELL PHONE: 480-390-5903
Henderson, NV 89014 email: kevin.t.kossman@xo.com
CUSTOMER CONTACT: Carl Puerschner TECHNICAL CONTACT: Carl Puerschner
Address: 4840 E. Jasmine St. Suite 105 Address: 4840 E. Jasmine St. Suite 105
Mesa, AZ 85205 Mesa, AZ 85205
Phone: 480-325-4319 Phone: 480-325-4319
Fax: 707-281-1985 Fax: 707-281-1985
Email: carlp@yp.net Email: carlp@yp.net
24HR CONTACT: Carl Puerschner BILLING CONTACT: Carl Puerschner
Address: 4840 E. Jasmine St. Suite 105 Address: 4840 E. Jasmine St. Suite 105
Mesa, AZ 85205 Mesa, AZ 85205
Phone: 480-325-4319 Phone: 480-325-4319
Fax: 707-281-1985 Fax: 707-281-1985
Email: carlp@yp.net Email: carlp@yp.net
PERIOD OF AGREEMENT: [ ] 1 Year [ ] 2 Years [X] 3 Years ORDER TYPE: [ ] New Order [X] Add/Change
AGENT ORDER: [ ] Yes [ ] No
SPACE REQUIREMENTS
CAGED SPACE CABINET(S)
Square feet required: Quantity of Cabinets: 1 [X] XO Cabinet
Width of Equipment: [ ] Customer Cabinet
XO to provide cage layout & proposed rack layout for Depth of Equipment:
Customer approval *XO does not provide shelves for any cabinets
Minimum cage size is 100 square feet If installing customer cabinet, please include cabinet dimensions
Racks cannot exceed a height of 84" Customer cabinet cannot exceed depth of 36" and height of 84"
Please list all equipment to be installed by rack # Please list all equipment to be installed by cabinet #
Equipment Dimensions (HXWXD) Equipment Dimensions (HXWXD)
Rack 1 Cabinet 1
Rack 2 Cabinet 2
Rack 3 Cabinet 3
Rack 4 Cabinet 4
Rack 5 Cabinet 5
Rack 6 Cabinet 6
***If quantity of racks exceeds 6, copy format and attach ***If quantity of cabinets exceeds 6, copy format and attach
additional rack information. additional cabinet information.
Required Key Cards
Note: 3 supplied at no charge. Additional key cards can be supplied at $50 charge per additional key card.
Name Phone email
Card 1 Carl Puerschner 480-325-4319 carlp@yp.net
Card 2 Mark Wallenburg markw@yp.net
Card 3
Card 4
Card 5
XO CONFIDENTIAL
17
<PAGE>
POWER REQUIREMENTS
DC Requirements:
Amps Breakered /
Rack / Cabinet # # of Feeds Single or Dual Feed Fuse Size Total
0
0
0
0
0
Total 0 0
Customer is responsible for subsequent distribution of power within customer
cage or cabinet
AC Requirements:
UPS Yes # of Amps Breakered / Receptacle # Receptacles
Rack / Cabinet # or No Circuits Fuse Size Type/ NEMA Single/Duplex/Quad Total
NO 1 standard 1
0
0
0
0
Total 1 1
NEMA: National Electrical Manufacturers Association
Notes: Standard AC power is 120 volt single phase. Other voltages available
on an ICB based on market. AC receptacles are provided above cabinets.
Customer must provide own power strips if required. UPS is available
on an ICB per site. Rack-mount UPS units are the responsibility of
each customer. The minimum power provisioned is 20 Amps. Additional
power is sold in 10 Amp increments, XO provides Bell Core Standard
Grounding. XO provides Convenience AC Outlets fused @ 20 Amps
(unprotected and not to power equipment)
BANDWIDTH/CROSSCONNECT REQUIREMENTS
Type and Number of Signal Terminations to be Cabled
Terminations to be cabled are those that are being requested to support the
equipment listed on this application. An application requesting an augment must
be submitted for additional terminations to be cabled. The following cables
refer to the physical
Incremental Forecast: (mandatory for initial and 1 year)
Year-end Intra-
Initial 60 days 6 months Year Total Cabinet # Building
1 PR
DS1
DS3 1 1
OC3
OC12
OC48
10BaseT N/A
100BaseT N/A
Dark Fiber N/A
**Year-end Total represents the sum of me circuits installed initially plus the
Incremental circuits installed at 60 days. 6 months, and year end.
XO CONFIDENTIAL
18
<PAGE>
Type of voice jack (Standard RJ-11 surface): n/a
-----------------------------------
INTRA-BUILDING CROSS CONNECT INFORMATION
----------------------------------------
*Please check with Local Market to confirm available carriers
REQUESTED CARRIER:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Carrier on XO's list? [ ] YES [X] NO
If NO, please provide Collocation Provider: XO Communications
------------------------------------
Floor: _________________________________________________________________________
Suite Number: __________________________________________________________________
--------------------------------------------------------------------------------
SPECIAL REQUIREMENTS
--------------------------------------------------------------------------------
Quantity
Stratum timing [ ] YES [ ] NO DS0
DS1
Special Requirements: none
----------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CUSTOMER'S VENDOR SELECTION
Installation Vendor: YP.net will install equipment themselves
------------------------------------------------------------
Address: 4840 E. Jasmine St. Suite 105
------------------------------------------------------------------------
------------------------------------------------------------------------
Phone: 480-325-4319 Fax:
-------------------------------- ------------------------------------
CUSTOMER EQUIPMENT DELLVERIES MUST BE SCHEDULED WITH XO ONE (1) WEEK IN ADVANCE.
----
XO(TM) WILL NOT ACCEPT AND DELIVERIES.
A Collocation License Agreement must be executed by the parties prior to or
concurrently with a Collocation Schedule including all its Exhibits in order for
this Request Form to be effective. This Request Form must be filled out with the
customer and acc
**Both this Request Form and an applicable Collocation Schedule must be executed
for each location.
FAILURE TO PROVIDE ALL REQUESTED INFORMATION AND ASSOCIATED DOCUMENTATION MAY
RESULT IN DELAYS IN THE PROCESSING OF THIS REQUEST.
CUSTOMER SIGNATURE:
By:__________________________________ Printed:_________________________________
Title:_______________________________ Date:____________________________________
XO CONFIDENTIAL
19
<PAGE>
EXHIBIT B
TO COLLOCATION SCHEDULE NO. 1 BETWEEN XO AND TELCO BILLING, INC.
TECHNICAL SERVICES
SERVICE DESCRIPTION
Customer may obtain the following XO Technical Services at XO Facilities:
1. Visual inspection of devices to assess equipment status (e.g. status
lights, power lights, and cabling) and report of observations back to
the Customer at request; and
2. Perform power reboots (or power re-cycles) of equipment where Customer
provides written directions for the technician.
XO will provide the above two (2) Technical Services upon Customer request.
Technical Services will be billed on an hourly basis. Charges for Technical
Services will appear on each subsequent monthly invoice for which such Technical
Services were ordered. Response times from XO to Customer regarding a Technical
Service request is two (2) hours from receipt of request during standard XO
business hours and four (4) hours during XO Off-Business hours (see pricing
matrix below).
CUSTOMER EQUIPMENT INFORMATION
The Customer, prior to ordering Technical Service, must provide information
specific to the Equipment, as XO technicians will require specific direction
relating to the requested Technical Service. Customer will provide the following
information to XO, via fax or email, prior to ordering Technical Services:
<PAGE>
If you lease cabinet(s): If you lease caged space:
--------------------------- - Cage number(s) and location(s) within the XO
- Cabinet number(s) and locations) within the Telco Collocation room
XO Telco Collocation room - Cabinet or Rack number(s) and location(s)
* On a per cabinet basis: within the Telco Collocation cage
- Description to Visio drawing including - On a per cabinet or rack basis:
equipment housed per cabinet and location - Description or Visio drawing including
within each cabinet equipment housed per cabinet/rack and location
* Physical labels attached to major pieces of within each cabinet/rack
equipment to facilitate identification by XO - Physical labels attached to major pieces of
Technicians equipment to facilitate identification by XO
Technicians
CUSTOMER ORDERING PROCEDURES
When placing a Technical Service request, Customer shall have the following
information accessible 10 expedite the dispatch of the XO Technician:
- Your Company name
- Site requiring Technical Service (please include street address, suite
number, zip code, and floor number, if appropriate)
- Particular service requested
- Visual Inspection of devices to assess equipment status (e.g. status
lights, power lights, and cabling) and report of observations back to
the Customer
- Perform power reboots (or power re-cycles) on equipment where customer
provides written directions for the technician
- Your Technical Contact name and number available on a 24X7 basis
- Individual cage number(s) and/or cabinet/rack number(s) and location(s)
within collocation room requiring service
- Equipment description (manufacturer name and serial number) and location
within cabinet requiring service
XO CONFIDENTIAL
20
<PAGE>
* Specific directions to perform requested task
- Location of critical buttons/switches/lights to be addressed during
requested task
XO will require a Customer technician to be available at the time of the service
call to provide real-time instruction if deemed necessary by the XO technician.
XO maintains the right to refuse performing work on Equipment, based on the
training and direction received from the Customer, regardless if the Technical
Service requested falls within the scope of the two (2) Technical Services
identified above.
TERM
This Exhibit B is co-terminus with Collocation Schedule No. 1. Accordingly,
Technical Services will be provided for Customer at the site indicated above
until expiration of the applicable Collocation Schedule.
LIMITATION OF LIABILITY FOR TECHNICAL SERVICES
WITH REGARDS TO THE TECHNICAL SERVICES PROVIDED HEREUNDER, IN NO EVENT SHALL XO
BE LIABLE TO CUSTOMER OR TO CUSTOMER'S END USERS OR OTHER THIRD PARTIES FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION ANY LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, ARISING
UNDER OR AS A RESULT OF THE TECHNICAL SERVICES PROVIDED BY XO HEREUNDER, EVEN IF
XO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF DUE TO XO'S
OWN NEGLIGENCE. FURTHERMORE, IN NO EVENT WILL XO BE LIABLE TO CUSTOMER FOR ANY
DIRECT DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE PREMISES OR THE TECHNICAL
SERVICES PROVIDED HEREUNDER, UNLESS SUCH DAMAGES ARE THE DIRECT RESULT OF XO'S
WILLFUL MISCONDUCT. IN ANY EVENT, XO'S LIABILITY UNDER THIS EXHIBIT FOR
TECHNICAL SERVICES SHALL NOT EXCEED THE TOTAL TECHNICAL SERVICE FEES PAID TO XO
UNDER THIS EXHIBIT IN THE THREE (3) MONTHS PRIOR TO THE EVENT.
XO BUSINESS HOURS AND HOLIDAY SCHEDULE
* Business Hours: Monday - Friday 8:00 a.m. to 5:00 p.m., except for XO
Holidays (see table below).
* Off-Business Hours: Monday - Friday 5:00 p.m. to 8:00 am, Saturdays,
Sundays, and XO Holidays (see table below).
New Years Day MLK Day President's Day Memorial Day
Independence Day Labor Day Thanksgiving Day Day after Thanksgiving
Christmas Eve Christmas Day
PRICING
XO will provide Technical Services at the following rates*:
PRICE/HOUR MINIMUM
BUSINESS HOURS $ 95 2 hours
AFTER BUSINESS HOURS $ 110 4 hours
*A11 Technical Services are billed in one-how increments. Services provided
during XO business hours are tracked with a two-hour minimum. Services provided
during XO off-business hours are tracked with a four-hour minimum. XO business
hours are defined as Monday through Friday 8:00 a.m. to 5:00 p.m., except for XO
holidays. XO off-business hours are defined as Monday through Friday 5:00 p.m.
to 8:00 a.m., Saturdays, Sundays and XO holidays.
XO CONFIDENTIAL
21
<PAGE>
COLLOCATION SCHEDULE NO. 2
This Collocation Schedule is made on this 1 day of October, 2003 and subject to
--- -------
all definitions, terms and conditions of that certain Collocation License
Agreement, dated 6-10-03 (the "Agreement") by and between Telecommunications of
-------
Nevada, LLC, a Delaware limited liability company, doing business as XO
Communications a Limited Liability Company, with an office at 2240 Corporate
Circle, Suite 100, Henderson, Nevada 89014 ("XO"), and Telco Billing, Inc., a
Nevada corporation, with an office at 806 Buchannon Blvd., Suite 250-115,
Boulder City, Nevada 89005 ("Customer"). This Collocation Schedule also has the
following Exhibits: The Floor Plan for the Equipment Space, identified as
Exhibit A; and Technical Services, identified as Exhibit B. Capitalized terms
used herein but not defined shall have the meanings as set forth in the
Agreement.
1. ADDRESS OF PREMISES 2. SPACE ALLOCATION
16563 NW 15th Ave. One (1) cabinet
Miami, FL 33169
3. MINIMUM TERM: Two (2) Years 4. RENEWAL PERIOD
REQUESTED SERVICE DATE: ______ (outline any renewal options offered)
---------------------------------------
S. ACCESS TO PREMISES: (CHECK ONE)(1)
X 24 x 7 unescorted access is provided. Customer will receive 3 cards per
-----
site. Additional cards provided at $50/card.
Escorted access is required. Applicable fees are set out in the Agreement.
-----
6. MONTHLY RECURRING SERVICE FEES - BASE PRICING
Occupancy Fees
------------ ------------ -------- -------------
Monthly Nonrecurring Quantity Total
Recurring Charge Monthly
Charge Recurring
Charge
------------ ------------ -------- -------------
Cage Option: price per square foot $ 65.00 N/A $ .00
------------ ------------ -------- -------------
Cabinet Option: price per cabinet including 20 amps AC
power $ 600.00 1 $600.00
------------ ------------ -------- -------------
Installation $ 2500.00 1
------------ ------------ -------- -------------
Additional Power Fees
------------ ------------ -------- -------------
Price Per Nonrecurring Quantity Total
amp per Charge Monthly
month Recurring
Charge
------------ ------------ -------- -------------
DC Power: in 10 Amp increments $ 15.00 N/A $.00
------------ ------------ -------- -------------
120 Volt AC Power with UPS backup: in 10 Amp increments $ 16.00 N/A $.00
------------ ------------ -------- -------------
120 Volt AC Power without UPS backup; in 10 Amp $ .00 20 $.00
increments (included
w/ cabinet)
------------ ------------ -------- -------------
--------------------
1 Most locations permit 24x7 unescorted access, but there are several XO
buildings which do not permit 24x7 unescorted access (e.g., Sears Tower in
Chicago).
XO CONFIDENTIAL
1
<PAGE>
Cross Connect Fees(2)
------------------ --------------- ---------- -------- -------- --------
To XO
------------------ --------------- ---------- -------- -------- --------
Monthly Non- Quantity Monthly Total Non-
Recurring Recurring Recurring Total
Charge Charge Charges Recurring
Charges
------------------ --------------- ---------- -------- -------- --------
DS1 $ 50.000 $ 200.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
DS3 $ 150.00 $ 300.00 1 $ 150.00 $ 300.00
------------------ --------------- ---------- -------- -------- --------
OC3 $ 500.00 $ 800.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
OC12 $ 800.00 $ 2000.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
OC48 $ 2000.00 $ 2500.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
Ethernet -lOBaseT $ 100.00 $ 200.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
Ethernet -100BaseT $ 600.00 $ 1000.00 N/A $ .00 $ .00
------------------ --------------- ---------- -------- -------- --------
To Alternate Carrier (based on Revenue Commitment)(3)
---------------------------------------------------------
DS1 $ 150.00 $ 300.00 N/A
------------------ --------------- ---------- -------- -------- --------
DS3 $ 450.00 $ 1,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC3 $ 1,600.000 $ 2,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC12 $ 3,000.00 $ 5,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
OC48 $ 8,000.00 $10,000.00 N/A
------------------ --------------- ---------- -------- -------- --------
Ethernet - lOBaseT $ 800.00 $ 800.00 N/A
------------------ --------------- ---------- -------- -------- --------
Ethernet -100BaseT $ 1,000.00 $ 1,500.00 N/A
------------------ --------------- ---------- -------- -------- --------
Infra-Building
---------------------------------------------------------
DS1 $ 150.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
DS3 $ 450.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC3 $ 1,600.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC12 $ 5,750.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
OC4S $ 21,000.00 ICB N/A
------------------ --------------- ---------- -------- -------- --------
In addition to the Base Monthly Recurring Occupancy Fees listed above, discounts
are provided based on the volume of services billed by the Customer on the same
account as the collocation site for each month and the Term agreed to for the
site. The discount percentage may vary from month to month and will appear as a
single line item on the Customer's invoice. The discount percentage applies only
to the Monthly Recurring Charges for the Occupancy Fee, and does not apply to
power, cross-connect, installation, or any other charges related to collocation
service. The discount schedule is listed below:
Billed Revenue (per Applicable Discount
month)
1YR 2YR 3YR
0-S25K 0% 0% 0%
S2SK-S100K 4% 6% 8%
S100K-S300K 6% 8% 10%
S300K AND ABOVE 8% 10% 12%
---------------
(2) Cross connects are provided in accordance with and subject to XO's Terms and
Conditions as set out in the applicable service agreement.
(3) XO will forfeit its First Right of Refusal only if the Customer has been
approved on an individual case basis by the XO Product Manager.
XO CONFIDENTIAL
2
<PAGE>
Exhibit A to this Schedule depicts the work to be performed by XO to prepare the
Equipment Space for Customer occupancy and use. By signing below, Customer
acknowledges and agrees that it has read and it accepts all the terms and
conditions in the Agreement referenced above, of which this Collocation Schedule
is a part.
CUSTOMER: TELCO BILLING, INC. XO
BY: /S/ CARL PUERSCHNER BY: /S/ MICHAEL S. KRAFT
------------------- -----------------------
NAME: CARL PUERSCHNER NAME: MICHAEL S. KRAFT
--------------- ------------------
TITLE: DIT TITLE: VP FINANCE
--- -----------
DATE: 6-10-2003 DATE: 6-19-2003
--------- ---------
XO CONFIDENTIAL
3
<PAGE>
EXHIBIT A
to Collocation Schedule No. 1 between XO and Telco Billing, Inc.
Insert Collocation Form depicting Requirements
Currently in Microsoft Excel Format
Insert Floor Plan depicting space requirements and/or Equipment layout or
diagram (if applicable)
XO CONFIDENTIAL
4
<PAGE>
XO(TM) Telco Collocation Request Form
-------------------------------------
EXHIBIT A
to Collocation Schedule No. 2
Submission Date: **Please note Requested Delivery Date is not guaranteed
REQUESTED DELIVERY DATE: REP NAME: Kevin Kossman/ Daryl Chavez
CUSTOMER NAME: Telco Billing, Inc. DESK PHONE: 602-324-6262
Address of Install: 16563 NW 15th Ave CELL PHONE: 480-390-5903
Miami, FL 33169 email: kevin.t.kossman@xo.com
CUSTOMER CONTACT: Carl Puerschner TECHNICAL CONTACT: Carl Puerschner
Address: 4840 E. Jasmine St. Suite 105 Address: 4840 E. Jasmine St. Suite 105
Mesa, AZ 85205 Mesa, AZ 85205
Phone: 480-325-4319 Phone: 480-325-4319
Fax: 707-281-1985 Fax: 707-281-1985
Email: carlp@yp.net Email: carlp@yp.net
24HR CONTACT: Carl Puerschner BILLING CONTACT: Carl Puerschner
Address: 4840 E. Jasmine St. Suite 105 Address: 4840 E. Jasmine St. Suite 105
Mesa, AZ 85205 Mesa, AZ 85205
Phone: 480-325-4319 Phone: 480-325-4319
Fax: 707-281-1985 Fax: 707-281-1985
Email: carlp@yp.net Email: carlp@yp.net
PERIOD OF AGREEMENT: [ ] 1 Year [ ] 2 Years [X] 3 Years ORDER TYPE: [ ] New Order [X] Add/Change
AGENT ORDER: [ ] Yes [ ] No
SPACE REQUIREMENTS
CAGED SPACE CABINET(S)
Square feet required: Quantity of Cabinets: 1 [X] XO Cabinet
Width of Equipment: [ ] Customer Cabinet
XO to provide cage layout & proposed rack layout for Depth of Equipment:
customer approval *XO does not provide shelves for any cabinets
Minimum cage size is 100 square feet If installing customer cabinet, please include cabinet dimensions
Racks cannot exceed a height of 84" Customer cabinet cannot exceed depth of 36" and height of 84"
Please list all equipment to be installed by rack # Please list all equipment to be installed by cabinet #
Equipment Dimensions (HXWXD) Equipment Dimensions (HXWXD)
Rack 1 Cabinet 1
Rack 2 Cabinet 2
Rack 3 Cabinet 3
Rack 4 Cabinet 4
Rack 5 Cabinet 5
Rack 6 Cabinet 6
***If quantity of racks exceeds 6, copy format and attach ***If quantity of cabinets exceeds 6, copy format and attach
additional rack information. additional cabinet information.
Required Key Cards
Note: 3 supplied at no charge. Additional key cards can be supplied at $50 charge per additional key card.
Name Phone email
Card 1 Carl Puerschner 480-325-4319 carlp@yp.net
Card 2 Mark Wallenburg markw@yp.net
Card 3
Card 4
Card 5
XO CONFIDENTIAL
5
<PAGE>
POWER REQUIREMENTS
DC Requirements:
Amps Breakered /
Rack / Cabinet # # of Feeds Single or Dual Feed Fuse Size Total
0
0
0
0
0
Total 0 0
Customer is responsible for subsequent distribution of power within customer
cage or cabinet
AC Requirements:
UPS Yes # of Amps Breakered / Receptacle # Receptacles
Rack / Cabinet # or No Circuits Fuse Size Type/ NEMA Single/Duplex/Quad Total
NO 1 standard 1
0
0
0
0
Total 1 1
NEMA: National Electrical Manufacturers Association
Notes: Standard AC power is 120 volt single phase. Other voltages available
on an ICB based on market. AC receptacles are provided above cabinets.
Customer must provide own power strips if required. UPS is available
on an ICB per site. Rack-mount UPS units are the responsibility of
each customer. The minimum power provisioned is 20 Amps. Additional
power is sold in 10 Amp increments, XO provides Bell Core Standard
Grounding. XO provides Convenience AC Outlets fused @ 20 Amps
(unprotected and not to power equipment)
BANDWIDTH/CROSSCONNECT REQUIREMENTS
Type and Number of Signal Terminations to be Cabled
Terminations to be cabled are those that are being requested to support the
equipment listed on this application. An application requesting an augment must
be submitted for additional terminations to be cabled. The following cables
refer to the physical
Incremental Forecast: (mandatory for initial and 1 year)
Year-end Intra-
Initial 60 days 6 months Year Total Cabinet # Building
1 PR
DS1
DS3 1 1
OC3
OC12
OC48
10BaseT N/A
100BaseT N/A
Dark Fiber N/A
**Year-end Total represents the sum of me circuits installed initially plus the
Incremental circuits installed at 60 days. 6 months, and year end.
XO CONFIDENTIAL
6
<PAGE>
Type of voice jack (Standard RJ-11 surface): n/a
----------------------------------
INTRA-BUILDING CROSS CONNECT INFORMATION
----------------------------------------
*Please check with Local Market to confirm available carriers
REQUESTED CARRIER:______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Carrier on XO's list? [ ] YES [X] NO
If NO, please provide Collocation Provider: XO Communications
------------------------------------
Floor: _________________________________________________________________________
Suite Number: __________________________________________________________________
________________________________________________________________________________
SPECIAL REQUIREMENTS
--------------------------------------------------------------------------------
Quantity
Stratum timing [ ] YES [ ] NO DS0
DS1
Special Requirements: none
----------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CUSTOMER'S VENDOR SELECTION
Installation Vendor: YP.net will install equipment themselves
------------------------------------------------------------
Address: 4840 E. Jasmine St. Suite 105
------------------------------------------------------------------------
------------------------------------------------------------------------
Phone: 480-325-4319 Fax:
-------------------------------- ------------------------------------
CUSTOMER EQUIPMENT DELLVERIES MUST BE SCHEDULED WITH XO ONE (1) WEEK IN ADVANCE.
----
XO(TM) WILL NOT ACCEPT AND DELIVERIES.
A Collocation License Agreement must be executed by the parties prior to or
concurrently with a Collocation Schedule including all its Exhibits in order for
this Request Form to be effective. This Request Form must be filled out with the
customer and acc
**Both this Request Form and an applicable Collocation Schedule must be executed
for each location.
FAILURE TO PROVIDE ALL REQUESTED INFORMATION AND ASSOCIATED DOCUMENTATION MAY
RESULT IN DELAYS IN THE PROCESSING OF THIS REQUEST.
CUSTOMER SIGNATURE:
By:__________________________________ Printed:_________________________________
Title:_______________________________ Date:____________________________________
XO CONFIDENTIAL
7
<PAGE>
EXHIBIT B
TO COLLOCATION SCHEDULE NO. 2 BETWEEN XO AND TELCO BILLING, INC.
TECHNICAL SERVICES
SERVICE DESCRIPTION
Customer may obtain the following XO Technical Services at XO Facilities:
1. Visual inspection of devices to assess equipment status (e.g. status
lights, power lights, and cabling) and report of observations back to
the Customer at request; and
2. Perform power reboots (or power re-cycles) of equipment where Customer
provides written directions for the technician,
XO will provide the above two (2) Technical Services upon Customer request.
Technical Services will be billed on an hourly basis. Charges for Technical
Services will appear on each subsequent monthly invoice for which such Technical
Services were ordered. Response times from XO to Customer regarding a Technical
Service request is two (2) hours from receipt of request during standard XO
business hours and four (4) hours during XO Off-Business hours (see pricing
matrix below).
CUSTOMER EQUIPMENT INFORMATION
The Customer, prior to ordering Technical Service, must provide information
specific to the Equipment, as XO technicians will require specific direction
relating to the requested Technical Service. Customer will provide the following
information to XO, via fax or email, prior to ordering Technical Services:
If you lease cabinet(s): If you lease caged space:
--------------------------- - Cage number(s) and location(s) within the XO
- Cabinet number(s) and locations) within the Telco Collocation room
XO Telco Collocation room - Cabinet or Rack number(s) and location(s)
- On a per cabinet basis: within the Telco Collocation cage
- Description to Visio drawing including - On a per cabinet or rack basis:
equipment housed per cabinet and location - Description or Visio drawing including
within each cabinet equipment housed per cabinet/rack and location
- Physical labels attached to major pieces of within each cabinet/rack
equipment to facilitate identification by XO - Physical labels attached to major pieces of
Technicians equipment to facilitate identification by XO
Technicians
CUSTOMER ORDERING PROCEDURES
When placing a Technical Service request, Customer shall have the following
information accessible 10 expedite the dispatch of the XO Technician:
- Your Company name
- Site requiring Technical Service (please include street address, suite
number, zip code, and floor number, if appropriate)
- Particular service requested
- Visual Inspection of devices to assess equipment status (e.g. status
lights, power lights, and cabling) and report of observations back to
the Customer
- Perform power reboots (or power re-cycles) on equipment where customer
provides written directions for the technician
- Your Technical Contact name and number available on a 24X7 basis
- Individual cage number(s) and/or cabinet/rack number(s) and location(s)
within collocation room requiring service
- Equipment description (manufacturer name and serial number) and location
within cabinet requiring service
XO CONFIDENTIAL
8
<PAGE>
- Specific directions to perform requested task
- Location of critical buttons/switches/lights to be addressed during
requested task
XO will require a Customer technician to be available at the time of the service
call to provide real-time instruction if deemed necessary by the XO technician.
XO maintains the right 10 refuse performing work on Equipment, based on the
training and direction received from the Customer, regardless if the Technical
Service requested falls within the scope of the two (2) Technical Services
identified above.
TERM
This Exhibit B is co-terminus with Collocation Schedule No. 1. Accordingly,
Technical Services will be provided for Customer at the site indicated above
until expiration of the applicable Collocation Schedule.
LIMITATION OF LIABILITY FOR TECHNICAL SERVICES
WITH REGARDS TO THE TECHNICAL SERVICES PROVIDED HEREUNDER, IN NO EVENT SHALL XO
BE LIABLE TO CUSTOMER OR TO CUSTOMER'S END USERS OR OTHER THIRD PARTIES FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION ANY LOST PROFITS, LOST GOODWILL, OR LOST BUSINESS, ARISING
UNDER OR AS A RESULT OF THE TECHNICAL SERVICES PROVIDED BY XO HEREUNDER, EVEN IF
XO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF DUE TO XO'S
OWN NEGLIGENCE. FURTHERMORE, IN NO EVENT WILL XO BE LIABLE TO CUSTOMER FOR ANY
DIRECT DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE PREMISES OR THE TECHNICAL
SERVICES PROVIDED HEREUNDER, UNLESS SUCH DAMAGES ARE THE DIRECT RESULT OF XO'S
WILLFUL MISCONDUCT. IN ANY EVENT, XO'S LIABILITY UNDER THIS EXHIBIT FOR
TECHNICAL SERVICES SHALL NOT EXCEED THE TOTAL TECHNICAL SERVICE FEES PAID TO XO
UNDER THIS EXHIBIT IN THE THREE (3) MONTHS PRIOR TO THE EVENT.
XO BUSINESS HOURS AND HOLIDAY SCHEDULE
* Business Hours: Monday - Friday 8:00 a.m. to 5:00 p.m., except for XO
Holidays (see table below).
* Off-Business Hours: Monday - Friday 5:00 p.m. to 8:00 am, Saturdays,
Sundays, and XO Holidays (see table below).
New Years Day MLK Day President's Day Memorial Day
Independence Day Labor Day Thanksgiving Day Day after Thanksgiving
Christmas Eve Christmas Day
PRICING
XO will provide Technical Services at the following rates*:
PRICE/HOUR MINIMUM
BUSINESS HOURS $ 95 2 hours
AFTER BUSINESS HOURS $ 110 4 hours
*A11 Technical Services are billed in one-how increments. Services provided
during XO business hours are tracked with a two-hour minimum. Services provided
during XO off-business hours are tracked with a four-hour minimum. XO business
hours are defined as Monday through Friday 8:00 a.m. to 5:00 p.m., except for XO
holidays. XO off-business hours are defined as Monday through Friday 5:00 p.m.
to 8:00 a.m., Saturdays, Sundays and XO holidays.
XO CONFIDENTIAL
9