Sample Business Contracts

Global Services Agreement - NASDAQ Stock Market Inc. and MCI WorldCom Communications Inc.

Services Forms

Sponsored Links

AMENDED AND RESTATED

GLOBAL SERVICES AGREEMENT

The Nasdaq Stock Market, Inc.

MCI WORLDCOM Communications, Inc.

/s/ David P. Warren

/s/ David S. Muller

Company Representative Signature

MCI Signature

EVP, Chief Financial Officer

David S. Muller

Title – Please Print

Title

David P. Warren

VP, Business Development

Company Representative Name-Please

Name

1/29/2004

2/24/04

Date

( 212) ****

Main Telephone Number

Billing ID

This Global Services Agreement (this “GSA” or “Agreement”) is made by and between MCI WORLDCOM Communications, Inc., a Delaware corporation with offices at 3 Ravinia Drive, Atlanta, Georgia 30346 (“MCI”) on behalf of itself and its US-based “Affiliates” (as hereinafter defined) and their respective successors, and The Nasdaq Stock Market, Inc. (“Nasdaq or Customer”), a Delaware corporation and an affiliate of the National Association of Securities Dealers, Inc. (a registered national securities association subject to regulation by the Securities and Exchange Commission [“SEC”] under the Securities Exchange Act of 1934 [“Securities Act”]), (Nasdaq, together with its “Affiliates” are hereafter collectively referred to as the “Corporations”, and individually as a “Corporation”) with its principal office at 1735 K Street, NW, Washington, DC 20006 (“Customer”). This Agreement is binding on Customer upon its execution and delivery to MCI provided it is subsequently executed by MCI within forty-five days of receipt. MCI is acting on behalf of each MCI Affiliate and their respective successors to the extent that services referred to in this GSA are provided by one or more such Affiliates. This GSA incorporates by reference the attached schedules (referred to collectively herein as the “Schedules” or referred to individually herein as the “Schedule”). MCI or the providing Affiliate and their respective successors (collectively, the “Company”) shall provide to Customer and Customer shall purchase from the Company those service(s) described in the Schedules to this Agreement (collectively, the “Services”) at the rates, discounts, and other terms and conditions described in the Schedule for the applicable Service.

This Agreement shall be of no force and effect and the offer contained herein shall be withdrawn unless this Agreement is executed by Customer and delivered to the Company on or before January 30, 2004

1. Selected Definitions.

1.1 “Affiliate” means any entity controlling, controlled by or under common control with a party to this Agreement. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or exercise a controlling influence over the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, the parties agree that the National Association of Securities Dealers, Inc. is not an affiliate of the Customer.

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

COMPANY AND CUSTOMER CONFIDENTIAL

AMENDED AND RESTATED GSA - FINAL

1.2 “Base Rates” means (i) for Services priced herein at standard Tariff, standard published or standard list rates herein (if any), such rates as reduced by the applicable discounts (if any) provided to Customer pursuant to this Agreement; (ii) for Services as to which a specific rate is set forth herein, such rate; or (iii) for Services for which no specific rates or discounts are set forth herein, the standard rates applicable for such services following application of the discounts (if any) received by Customer.

1.3 “Cause” means (a) a failure to perform a material obligation by the other party under this Agreement, other than non-payment, which failure is not remedied within (30) days of such defaulting party’s receipt of written notice thereof; or (b) Customer’s failure to pay an invoice for Services under this Agreement within the 30 day payment period described in Section 8.1 below which failure is not remedied within ten (10) days after Customer’s receipt of written notice thereof.

1.4 “Commencement Date” means the date on which Customer signs this Agreement.

1.5 “Confidential Information” means information that is transmitted or otherwise provided by or on behalf of either party (“Discloser”) to the other party (“Recipient”) or observed by the Recipient related to (a) the subject matter of the Agreement, and that should reasonably have been understood by the Recipient because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the Discloser, to an Affiliate of the Discloser or to a third party; or (b) the current or future business relationship between the Company and Customer in which WorldCom provides or may provide telecommunications services to Customer, including, without limitation, Request for Proposal responses, Request for Quote responses, Request for Information responses; or (c) information which relates or refers to: business planning; internal controls; computer, data processing, or communications architectures or systems; electronic data processing architectures, applications, programs, routines, or subroutines; business affairs and methods of operation or proposed methods of operations, techniques or systems of the Corporations or any customer of the Corporations; financial or other non-public information of the Corporations, NASD Member Firms or Nasdaq Stock Market issuers. Confidential Information may be disclosed in written or other tangible form (including on magnetic media) or by oral, visual or other means. The terms, including without limitation pricing, of this Agreement are Confidential Information to both parties.

1.6 “Contract Year” means each consecutive twelve (12) Monthly Periods of the Term commencing on the Services Effective Date or on each anniversary thereof.

1.7 “Marks” means a party’s registered trade names, logos, trademarks, service marks or other indicia of origin.

1.8 “Monthly Period” means a monthly billing period for Services under this Agreement.

1.9 “MCI Program” means services to be provided to securities market participants over the MFX network and the Customer will have access to the MCI Program (as amended from time to time) services and rates under this Agreement.

1.10 “Nonqualified ROW Services” means: (i) the international services or products of UUNET Technologies, Inc.; (ii) WorldCom International services or products provided in-country by the appropriate Company-affiliated operating company; (iii) rest of world Company Conferencing services (“ROW Conferencing Services”); and (iv) services provisioned by or through Avantel (in Mexico) and Stentor/Bell Canada (in Canada).

1.11 “Quarter” means each consecutive three (3) Monthly Periods within the Term, commencing with the Services Effective Date (unless another commencement date is expressly specified) and each **** anniversary thereof.

1.12 “Services Effective Date” means the first day of the second full monthly billing cycle following the execution and delivery of this Agreement by Customer to MCI. Unless otherwise specified in the Agreement, the rates in the Amended and Restated GSA become effective on the first day of the second full monthly billing cycle following execution and delivery of the Amended and Restated GSA to MCI (“A&R GSA Services Effective Date”).

1.13 “Service Option 1” means Services that are billed through the ****.

1.14 “Service Option 2” means Services that are billed through the ****.

1.15 “Tariff” means the public tariffs on file with the state public utilities commissions or other domestic or foreign governmental bodies governing the rates and/or terms and conditions of Services that are subject to tariff filings, as applicable.

1.16 “Usage Charges” means Customer’s monthly recurring and usage charges for one or more Services provided under this Agreement, calculated at Base Rates, Usage Charges do not include the following: (i) Taxes (as defined in Section 9.1 below); (ii) charges for equipment and collocation; (iii) charges incurred where MCI or an MCI Affiliate acts as agent for Customer in the acquisition of goods or services; (iv) non-recurring charges; (v) calling card surcharges (except as otherwise expressly provided for herein); (vi) monthly recurring non-usage charges; (vii) other standard charges, including, without limitation, Universal Service Fund charges, Carrier Access charges, and payphone use charges, or any successor of any such charges, which are additional; and (viii) other charges expressly excluded in the Agreement or in the applicable Schedule to the Agreement.

1.17 Capitalized terms not otherwise defined in this Agreement shall have the definition given to them in applicable Tariff and/or the Guide (as defined in Section 2.2 below).

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

2. Provision of Service.

2.1 The Company will provide to Customer the Services more particularly described in the applicable Schedules to this Agreement. Customer is eligible to receive only features available to each Service’s option type. It shall be the Customer’s obligation to furnish to its Company account team all information necessary for the Company to provide the Services to Customer including, without limitation, circuit installation and disconnection authorizations for those Customer circuits intended to receive, or which have been receiving, custom rates.

2.2 The Company’s provision of Services to Customer will be governed by the Company’s state tariffs (“Tariff(s)”) for intrastate and local services and, for interstate and international services, the Company’s “Service Publication and Price Guide” (“Guide”), each as supplemented by this Agreement. This Agreement incorporates by reference the terms of each such Tariff; SCA Type 1 found at Part 1, Section 2, of the Guide; and the relevant services found in Part 1, Section 1, of the Guide. When any Tariff provisions are canceled, Services will continue to be provided pursuant to this Agreement, as supplemented by the terms and conditions contained in the Guide, which will contain the Company’s standard rates, product descriptions, terms and conditions that formerly had been tariffed (“Service Terms”). The Guide is incorporated herein by reference and will be available to Customer on the Company’s internet website (www.mci.com) (or successor URL) and at the Company’s offices during regular business hours at 22001 Loudoun County Parkway, Ashburn, Virginia 20147. The Company reserves the right to modify the Guide from time to time, and any such modification will be effective upon its posting at the Guide website. The contractual relationship between WorldCom and Customer shall be governed by the following order of precedence: (a) Tariffs; (b) provisions in this Agreement that expressly apply in lieu of, or that apply in addition to, provisions contained in Tariffs and/or the Guide; and (c) provisions contained in the Guide.

2.3 Company Tariff, Policy and Guide. The Company may amend Tariffs, Policy (as defined in Section 13.2) and/or Guide from time to time. If enforcement of any modification made by the Company to the Tariff(s), Policy and/or Guide affects Customer in a material and adverse manner, Customer, as its sole remedy, may discontinue the affected Service without liability (except for payment of all charges incurred up to the time of service discontinuance) by providing the Company with written notice of discontinuance. To exercise this remedy, the Company must receive written notice within thirty (30) days of Customer’s first learning of the Company’s enforcement of such modification The Company may avoid service discontinuance if, within thirty (30) days of receipt of Customer’s written notice, it agrees to amend this Agreement to eliminate the applicability to Customer of the relevant Tariff, Policy and/or Guide provision. A “material and adverse” change shall not include, nor be interpreted to include: (1) the introduction of a new service or any new service feature associated with an existing service, including all terms, conditions and prices relating thereto; (2) an adjustment (either an increase or a reduction) of a published underlying service price not expressly fixed in this Agreement; or (3) the introduction or revision of charges established and published by the Company to recover amounts imposed on it, or which it is required or permitted to collect from or pay to others, by a governmental or quasi-governmental authority.

2.4 Service Classifications. The Services may consist of one or more of the following:

2.4.1 Regulated Tariffed Services. Certain Services, including, but not limited to, domestic intrastate and local services are currently provided by the Company to Customer pursuant to the Tariff filed by the Company in the local jurisdiction where such Service is provided (“Regulated Tariffed Services”), which Tariff may be changed by the Company from time to time in accordance with law. Domestic intrastate and local services will be provided pursuant to requirements imposed by state law or regulatory authority.

2.4.2 Regulated Non-Tariffed Services. Services which are subject to Federal Communications Commission (“FCC”) regulation but which are not provided pursuant to a Tariff may be referred to hereafter as “Regulated Non-Tariffed Services”.

2.4.3 Non-Regulated Services. “Non-Regulated Services” means those Services that are not regulated by the FCC, including, but not limited to, the Enhanced Services and the Non-US Services, which are provided pursuant to Schedules Two and Four, respectively. The Non-Regulated Services shall be provided in accordance with the terms and conditions of this Agreement, as supplemented by the non-inconsistent Service Terms contained in the Company’s Guide.

3. Rates and Discounts for the Services.

3.1 Generally. Rates and discounts for specific Services are provided in the applicable Schedule. Except as expressly provided to the contrary, the rates set forth are in lieu of, and not in addition to, any discounts, promotions and/or credits (Tariffed, standard or otherwise). Any rates that are specifically designated as “fixed” will not increase or decrease during the Term. For Services not specifically set forth in this Agreement, including, but not limited to, all dedicated access and egress charges and all other charges related to said access and egress not specifically set forth in this Agreement, Customer will be charged the Company’s standard rates. References in this Agreement to standard rates and/or discounts and standard Tariffed rates and/or discounts refer to the corresponding standard rates and/or discounts set forth in the Guide or the applicable Tariff (as applicable) for such Service(s). Unless otherwise specified in this Agreement, the rates set forth in this Agreement do not include, and the discounts set forth in this Agreement do not apply to, the following: (i) access or egress (or related) charges imposed by third parties; (ii) non-recurring charges and monthly recurring non-usage charges; (iii) calling card surcharges (unless expressly provided for herein); (iv) Taxes; (v) other standard charges, including, without limitation, Universal Service Fund charges, Carrier Access Charges, and payphone use charges, or any successor of any such charges, which are additional; and (vi) other charges expressly excluded in the applicable Schedule.

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

4. Term. The “Term” of this Agreement will begin upon the Commencement Date and end on December 31, 2005. The rates, charges, credits and discounts for the Services contained herein will be effective, unless otherwise stated, on the A&R GSA Services Effective Date. At the end of the Term, the Amended and Restated GSA will automatically renew on a month to month basis up to a maximum of **** unless Customer provides **** prior written notice to MCI of its intent not to renew.

5. Minimum Volume Requirement. Customer’s Usage Charges for Services set out in Schedules 1-8 (subject to the exclusions specified in Section 1.16 above) incurred during each Monthly Period under this Agreement must equal or exceed **** (the “Monthly Minimum”) (the “GSA Minimum”). Customer’s Usage Charges for Services set out in Schedules 9-14 incurred from Une 1, 2004 to December 31, 2004 (an “Annual Period”) must equal or exceed Twenty Million Dollars ($20,000,000) and Customers Usage Charges for Services set out in Schedules 9-14 incurred from January 1, 2005 to December 31, 2005 (an “Annual Period”) must equal or exceed Twenty Million Dollars ($20,000,000) (the “Extranet Minimum”). Usage Charges for Nonqualified ROW Services will not contribute to calculation of Customer’s attainment of the Monthly GSA or Extranet Minimums.

5.1 Conferencing Subminimum. During each Contract Year, Customer’s Usage Charges for the Company domestic audio conferencing and video conferencing services (“Qualifying Conferencing Services”) must equal or exceed **** (the “Conferencing Services Subminimum”).

6. Underutilization. If, in any Monthly Period, Customer’s Usage Charges are less than the GSA Minimum, then Customer will pay: (1) all accrued but unpaid charges incurred by Customer; and (2) an underutilization charge (which Customer hereby agrees is reasonable) equal to **** of the difference between (a) the GSA Minimum , and (b) the sum of Customer’s Usage Charges. Upon execution of an amendment between MCI and the National Association of Securities Dealers, Inc. (“NASD”) to modify the MCI-NASD agreement, Customer’s payments in satisfaction of the minimums herein shall not benefit NASD.

6.1 Extranet Underutilization. If, in any Annual Period, Customer’s Usage Charges for that Annual Period are less than the Extranet Minimum, then Customer will pay: (1) all accrued but unpaid charges incurred by Customer; and (2) an underutilization charge (which Customer hereby agrees is reasonable) equal to the difference between (a) the Extranet Minimum, and (b) the sum of Customer’s Usage Charges for that Annual Period.

6.2 Conferencing Services Subminimum Underutilization. If, in any Contract Year, Customer’s Usage Charges for Qualifying Conferencing Services are less than the Conferencing Services Subminimum, then Customer will pay: (1) all accrued but unpaid charges incurred by Customer; and (2) an underutilization charge (which Customer hereby agrees is reasonable) equal to the difference between Customer’s Usage Charges for Qualifying Conferencing Services during such Contract Year and the Conferencing Services Subminimum.

7. Credits.

7.1 Installation Waiver. For the Term, the Company will waive the one-time installation and other one-time, non-recurring, standard (non-expedite) charges associated with the implementation of Services associated with the GSA Minimum (Service Options 1 and 2) under this Agreement, excluding installation charges imposed by foreign PTTs and installation charges by third party providers contracted for by Customer. In addition to the above restrictions, installation charges for the following services are not subject to the above installation waivers: digital subscriber line (DSL) services, services of UUNET Technologies, Inc. and its Affiliates (domestic and international services), services provisioned by WorldCom International, Inc., and services provisioned by or through Avantel (in Mexico) and Stentor/Bell Canada (in Canada). The non-recurring charges associated with the service provision of the Extranet Minimum are not included in the Installation Waiver.

8. Payment and Security Deposit.

8.1 Payment of the Company Invoices. Unless otherwise specified in a Schedule attached hereto, all amounts due for Services shall be billed in US Dollars. Unless otherwise specified in a Schedule attached hereto, Customer is required to pay the Company for Services, including without limitation any applicable underutilization charges and/or early termination charges, within thirty (30) days after the date of receipt of the Company’s invoice. Amounts not paid within thirty (30) days after the date of the invoice will be considered past due and a failure to perform a material obligation under this Agreement, and the Company may terminate this Agreement pursuant to Section 12.1 below (subject to the cure period set forth in Section 1.3(b) above) or suspend the Services pursuant to Section 12.3 below (subject to the cure period set forth in such Section). Failure of the Company to invoice Customer in a timely manner for any amounts due hereunder shall not be deemed a waiver by the Company of its rights to payment therefor. Where an element of a Service is considered to be rendered directly from a third party carrier to the Customer and where said carrier does not have a one-stop billing arrangement with the Company that allows the Company to bill Customer on behalf of such third party, Customer agrees to pay for said element directly to such third party carrier.

8.2 Security Deposit. If the Company through a commercially reasonable evaluation, determines that Customer is financially unstable, the Company will notify customer in writing explaining the basis for such evaluation and may request, and Customer shall furnish within **** of such request, a bond or other form of security deposit to assure payment (in an amount not greater than all installation charges plus **** actual or estimated Usage Charges for all the Services) to assure payment.

8.3 Verification of Taxes. On a semi-annual basis (with the beginning of the first six month period being the Amended and Restated Services Effective Date) upon written notice from Customer, the Company and Customer shall meet on or after the end of the second full month after the close of the previous ****, to review the accuracy of the Taxes (as that term is defined in section 9 below) on invoices received during the previous ****.

Taxes, Governmental, and Other Charges.

9.1 Domestic and International Tax Charges.

(a) All charges are exclusive of applicable federal, state, local, and foreign gross sales, use, excise, utility, gross receipts, value

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

added taxes and other taxes, similar tax-like charges, and tax-related and other surcharges as provided in the Company’s Guide and Tariff(s) (“Taxes”), which Customer shall pay, as long as such Taxes are applied by Company similarly to those Taxes applied by Company to Company’s similarly situated customers.

(b) In the event that Customer provides the Company with a valid, duly executed exemption certificate, the Company shall exempt Customer in accordance with applicable law, effective on the date the exemption certificate is received by the Company.

(c) Taxes based on the Company’s net income shall be the sole responsibility of the Company; provided that, if Customer is required by the laws of any foreign tax jurisdiction to withhold income or profits taxes from any payment, Customer shall, within ninety (90) days of the date of such withholding, provide to the Company official tax certificates documenting remittance of such taxes to the relevant tax authorities. Such tax certificates shall be in a form sufficient under the US Internal Revenue Code to document the qualification of such income or profits tax for the foreign tax credit allowable against the Company’s US corporation income tax, and shall be accompanied by an English translation. Upon receipt of such certificates, the Company will issue Customer a billing credit for the amounts represented thereby.

(d) If Customer disputes the application of any Taxes, Customer shall give the Company written notice of the dispute within six (6) months of the receipt of an invoice. Otherwise, such application of Taxes, as between the Company and Customer, shall be deemed correct and binding on Customer.

(e) The Company shall provide Customer with reasonable assistance, at Customer’s reasonable expense), if Customer disputes the imposition or accuracy of any Taxes directly with a governmental entity.

(f) Charges for services under this Agreement that provide Customer, in whole or in part, with network access services will be Taxed in whole as such. The Taxes shall be applied to these services in accordance with the Company’s standard Tax rates and applicability for network access services and shall be applied similarly to those applied to similarly situated customers of such services. Unless required by law to do otherwise, the Company shall determine the Tax rates and applicability based on the location where such network access services are provided. Such determinations are made automatically by the original billing system utilized for such services, in accordance with the Company’s standard Tax applicability for such services.

Unless the Company’s original billing system for the network access services provided Customer under this Agreement is also utilized for final invoicing to Customer, the Company shall manually prepare the final Customer invoice so that the rates agreed to herein, and the associated Taxes, are properly reflected. To do this, the Company shall take the amount for the charges that are processed through the original billing system and adjust them to the amount due under this Agreement. The applicable Taxes applied through the original billing system shall likewise be adjusted in proportion to the adjustment for the charges.

If any charge for the network access service does not flow through the original billing system, the Taxing engine utilized by the original billing system will be separately queried to calculate the appropriate Taxes due on such charge.

Charges under this Agreement to provide Customer, in whole or in part, with the use of Customer Premise or other equipment will be Taxed in whole as such. The Taxes shall be applied in accordance with the Company’s standard Tax rates and applicability for such Customer Premise or other equipment and shall be applied similarly to those applied to similarly situated customers. Unless required by law to do otherwise, the Company shall determine the Tax rates and applicability based on the location of the equipment. Such determinations are made automatically by the original billing system utilized for such equipment, in accordance with the Company’s standard Tax applicability for such charges.

Unless the Company’s original billing system for the Customer Premise or other equipment provided Customer under this Agreement is also utilized for final invoicing to Customer, the Company shall manually prepare the final Customer invoice so that the rates agreed to herein, and the associated Taxes, are properly reflected. To do this, the Company shall take the amount for the charges that are processed through the original billing system and adjust them to the amount due under this Agreement. The applicable Taxes applied through the original billing system shall likewise be adjusted in proportion to the adjustment for the charges. If any charge for the Customer Premise or other equipment does not flow through the original billing system, the Taxing engine utilized by the applicable original billing system will be separately queried to calculate the appropriate Taxes due on such charge.

Taxes shall be separately stated on the invoice. Solely for purposes of invoice display, various Taxes may be summarized and/or combined with other Taxes on one or more Tax lines on the invoice.

(g) The Company shall indemnify and hold Customer harmless from any penalty and interest imposed on Customer for the underpayment, to the extent not due to the fault of Customer, of any Taxes that were paid to the Company by Customer.

9.2 Pass-Through Charges. Unless otherwise provided for in the applicable product description contained in a Schedule, the Company will pass through to Customer, and Customer shall be solely responsible for, any charges (including, without limitation, installation charges), fees, Taxes and terms and conditions of service imposed by domestic and international access/egress service suppliers in relation to the provision of Services, including, but not limited to, rate fluctuations in tariffs, communications charges and access charges that are imposed or enacted by access suppliers after the Services Effective DateCustomer shall be responsible for any gains or losses associated with fluctuations in the exchange rate and/or timing of payment where access charges are billed in non-US currency and are to be paid by Customers in US Dollars. the Company shall, for this limited purpose only, serve as Customer’s representative in procuring, on Customer’s behalf and at no additional cost to Customer for so procuring, the domestic and international access/egress services from suppliers.

9.3 Notwithstanding anything in this Agreement to the contrary, the Company may adjust its rates or charges, or impose additional rates and charges, in order to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from or pay to others to support statutory or regulatory programs during the course of this Agreement, including, without limitation, Universal Service Fund charges, Carrier Access Charges, and payphone use charges, or any successor of any such charges, which are additional.

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

10. Confidential Information. The Recipient (as defined in Section 1.5 above) agrees as to any Confidential Information that may be disclosed to it by the Discloser (as defined in Section 1.5 above) to (i) use the Confidential Information only for the purposes of this Agreement or in connection with the potential or actual provision of additional telecommunications products and services to Customer, (ii) protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, and (iii) reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of Discloser or a third party) as are contained in or on the original or as the Discloser may otherwise reasonably request. Subject to the restrictions in the preceding sentence, Recipient may disclose Confidential Information received hereunder to its employees, officers, agents and independent/sub contractors, and to its Affiliates and its Affiliates’ officers, agents and independent/sub contractors, who have a need to know, for the purpose of this Agreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written agreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Discloser. In any event, a party to this Agreement which makes Confidential Information available to any third party, including, without limitation, as permitted pursuant to this Section 10, shall remain liable for the handling by the receiving third party of the received Confidential Information in conformity with the requirements of this Agreement and for the breach by any such receiving party of such requirements. For purposes of this Section 10, disclosure by a party of Confidential Information to the Affiliate of the other party to this Agreement or to a third party authorized by the other party to receive such Confidential Information shall be deemed to be a disclosure to the other party to this Agreement. In the event that either party to this Agreement becomes aware of any unpermitted third party disclosure of Confidential Information hereunder, such party shall promptly notify the other party of such disclosure.

10.1 The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (i) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication thereof to Recipient; (ii) is, or becomes publicly known, through no wrongful act or omission of Recipient; (iii) is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; (iv) is developed independently by Recipient independently of and without reference to the Confidential Information or other information that Discloser disclosed in confidence to any third party; or (v) is identified by Discloser as no longer proprietary or confidential.

10.2 In the event Recipient is required by law, regulation, order of a court or governmental body or agency, or the rules of a securities exchange to disclose any of Discloser’s Confidential Information, Recipient will promptly notify Discloser in writing prior to making any such disclosure in order to facilitate Discloser seeking a protective order or other appropriate remedy from the proper authority. Recipient agrees to cooperate with Discloser in seeking such order or other remedy, and to exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information. If such assurances are not received, the parties will use their commercially reasonable efforts to reach agreement as to the extent of any required disclosures, however, notwithstanding such lack of agreement, Recipient shall not be precluded from making any such required disclosures, nor will Discloser be precluded from continuing to seek said protective order or other appropriate remedy from the proper authority.

10.3 All Confidential Information disclosed under this Agreement shall be and remain the property of Discloser. All such information shall be returned to Discloser, promptly upon the earlier of: (i) the written request of the Discloser, or (ii) termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient.

10.4 The parties acknowledge that their respective Confidential Information is unique and valuable, and that breach by either party of the obligations of this Agreement regarding such Confidential Information will result in irreparable injury to the affected party for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or threatened breach of such provisions, the affected party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

11. Termination Liability. If (a) Customer terminates this Agreement during the Term other than pursuant to Section 12.1, or (b) the Company terminates this Agreement in accordance with Section 12.1 or 12.2, Customer will pay: (i) all accrued but unpaid charges incurred through the date of such termination; (ii) an amount (which Customer hereby agrees is reasonable) equal to the aggregate of the Monthly Minimum(s) (and a pro rata portion thereof for any partial Monthly Period) that would have been applicable for the remaining unexpired portion of the Term on the date of such termination; (iii) any and all credits received by Customer hereunder (unless otherwise specified and exclusive of the Interstate Service Credits, if any, and foreign tax credits provided pursuant to Section 9.1(c), if any), in full, without setoff or deduction; plus (iv) the aggregate termination charges, payable to any third party suppliers or overseas access providers, if any, for which the Company is or becomes contractually liable on behalf of Customer as a result of such termination. If the Company terminates a Service in accordance with the applicable Schedule, then Customer will pay termination charges in accordance with that Schedule.

12. Termination.

12.1 Termination of the Agreement for Cause. Either party may terminate this Agreement for Cause.

12.2 Termination of the Agreement by the Company. WorldCom may terminate this Agreement immediately upon notice to Customer if (a) Customer fails to provide a bond or security deposit as required under Section 8.2 above; or (b) Customer provides false information to the Company regarding the Customer’s identity, credit-worthiness, or its planned use of the Services. In addition, the Company may terminate this Agreement for Cause.

12.3 Immediate Suspension of Services. the Company may suspend any Service provided under this Agreement following

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

written notice to Customer if Customer is past due on any invoice for Service and fails to pay such invoice within ten (10) days following receipt of such written notice thereof (except for those amounts that are clearly erroneous and provided such error is described by Customer to WorldCom in writing within such period). The Company may, in good faith and using its commercially reasonable business judgment, suspend any Service provided under this Agreement immediately and without prior notice to Customer if: (a) Customer fails to provide a bond or security deposit as required under Section 8.2 above; (b) Customer provides false information to the Company regarding the Customer’s identity, credit-worthiness, or its planned use of the Services; (c) interruption of a Service is necessary to prevent or protect against fraud or otherwise protect the Company’s personnel, agents, facilities, or services; (d) Customer fails to comply with applicable interconnection standards of the Company’s network; or (e) Customer’s network interferes with the Company’s provision of services to any other customers provided that such interference is not due to any action or failure on the part of the Company or a Company network limitation. If the reason for such suspension is not caused by Customer or its Affiliates, the Company will credit Customer all or a prorated portion (depending on the duration of the suspension) of any monthly recurring charges for the suspended Services.

12.4 Bankruptcy. Customer may terminate the Agreement, without liability,: a) Upon written notice to the Company, if the Company becomes insolvent, makes an assignment for the benefit of creditors, files a voluntary petition or has an involuntary petition filed or action commenced against it under the United States Bankruptcy Code, or any similar federal or state law, becomes the subject of any proceedings related to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations. The parties specifically acknowledge and agree that neither of the currently pending chapter 11 bankruptcy cases involving (i) WorldCom Inc., Case No. 02-13533, or (ii) MCI WORLDCOM Communications Inc., Case No. 02-42223, before the United States Bankruptcy Court of the Southern District of New York, the Honorable Arthur J. Gonzalez presiding, shall trigger Customer’s termination rights in this section 12.4.a

13. Indemnification.

13.1 Customer and the Company agree to defend, indemnify, and hold each other and the other’s Affiliates and their respective independent/sub contractors harmless from and against any claims, suits, damages and expenses (including third party claims, suits, damages and expenses asserted against or incurred by the party seeking indemnification) “Indemnitee”) arising out of or relating to bodily injury to or death of any person, or loss of or damage to real or tangible personal property or the environment, to the extent that such claim, suit, damage, or expense was proximately caused by any negligent or willful tortious act or omission on the part of the party from whom indemnity is sought, its independent/sub contractors or employees (“Indemnifying Party”).

13.2(A) In addition to the above, Customer agrees to defend, at its own expense, and indemnify and hold harmless MCI and its Affiliates and their respective independent/sub contractors (collectively, the “Company Indemnitees”), from and against any claims, suits, damages and expenses asserted against or incurred by any of the Company Indemnitees to the extent arising out of or relating to: (i) content disseminated via the Services by Customer (including any of its employees) or its independent/sub contractors ; and (ii) Customer’s connection of a Company product or service to any third party service or network, including, without limitation, damages resulting from unauthorized use of, or access to, the Company’s network by Customer or a third party obtaining access through such connection, provided such damage could not have been avoided by the Company’s use of reasonable precautions; (iii) violation, misuse or misappropriation by Customer, its employees and independent/sub contractors of the trademarks, copyrights, moral rights, trade secrets, or other proprietary rights or intellectual property rights of MCI or the Company (“Company Marks”) (other than a claim based on an assertion by a third party that the Company does not own the Company Marks); (iv) false or misleading advertising claims made by Customer about the Services; (v) violation of local, state or federal law by Customer; and (vi) Customer’s use of a Service in a manner which would violate the Company Acceptable Use Policy, which is made a part of this Agreement and is available at www.mci.com/terms (the “Policy”), subject to the provisions of Section 2.3 above. Customer shall have the exclusive right to defend or settle any such claim set forth in this Section 13.2.(A). Customer’s obligation to defend and indemnify the Company against any claim set forth in this Section is contingent upon: (a) the Company providing Customer within a reasonable period of time written notice of such claim, provided that the failure of the Company to provide the same shall not modify Customer’s obligations under this Section 13.2.(A), except to the extent that Customer is materially prejudiced

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

thereby; (b) the Company providing Customer, at Customer’s reasonable expense, all reasonable information and assistance requested by Customer to settle or defend such claim set forth in this Section; and (iii) the Company surrenders exclusive control to Customer of the defense and/or settlement of any claim, suit or other demand. This Section 13.2.(A) provides the sole remedies of the Company and the exclusive obligations of Customer and its Affiliates in connection with any claim, suit, damage or expense set forth in this Section 13.2.(A).

13.2.(B) In addition to its other indemnification obligations, the Company agrees to defend, at its own expense, and indemnify and hold harmless Customer and its Affiliates and their independent/sub contractors (collectively, the “Customer Indemnitees”), from and against any claims, suits, damages and expenses asserted against or incurred by any of the Customer Indemnitees arising out of or relating to: (i) violation, misuse or misappropriation by the Company, its employees and independent/sub contractors of the trademarks, copyrights, moral rights, trade secrets, or other proprietary rights or intellectual property rights of Customer or Customer’s Affiliates (“Customer Marks”) (other than a claim based on an assertion by a third party that Customer does not own the Customer Marks); (ii) false or misleading advertising claims made by the Company about the Services; and (iii) violations of local, state or federal law by the Company. The Company shall have the exclusive right to defend or settle any such claim set forth in this Section 13.2.(B).. The Company’s obligation to defend and indemnify Customer Indemnitees against any claim set forth in this Section is contingent upon: (a) Customer providing the Company within a reasonable period of time written notice of such claim, provided that the failure of the Company to provide the same shall not modify the Company’s obligations under this Section 13.2.(B), except to the extent that the Company is materially prejudiced thereby; (b) Customer providing the Company, at the Company’s reasonable expense, all reasonable information and assistance requested by the Company to settle or defend such claim set forth in this Section; (iii) Customer surrenders exclusive control to the Company of the defense and/or settlement of any claim, suit or other demand. This Section 13.2.(B) provides the sole remedies of the Customer and the exclusive obligations of the Company in connection with any claim, suit, damage or expense set forth in this Section 13.2.(B).

13.2 (C) Subject to Section 14, the Indemnifying Party shall pay all damages, settlements, its expenses and costs, incurred in the defense, including costs of investigation (if any), court costs and attorneys’ fees and costs. For the avoidance of doubt, Company and Customer Indemnitees shall be responsible for their own attorneys’ fees and costs, court costs, costs of investigation or similar fees and costs associated with the event giving rise to the indemnification.

13.3 Intellectual Property Infringement Indemnity.

13.3.1 The Company shall at its expense defend, indemnify and hold harmless Customer, including its Affiliates (collectively, “Customer Indemnities”) from and against any claims, suits, damages and expenses asserted against or incurred by Customer Indemnities arising out of or relating to the allegation that any Service as delivered by the Company infringes a third party’s rights under any patent, copyright, trademark, or trade secret right or other intellectual property right afforded by a jurisdiction where the Services were provided the Company shall pay (i) judgments or settlements obtained by a third party against the Customer Indemnitees (ii) the Company’s expenses and costs incurred in the defense of the Customer Indemnitees and (iii) subject to Section 14, all damages incurred by the Customer Indemnitees, except, for the avoidance of doubt, Customer Indemnitees shall be responsible for their own attorneys’ fees and costs, court costs, costs of investigation or similar fees and costs associated with the event giving rise to the indemnification.

13.3.2 The Company shall be under no obligation to defend or indemnify Customer to the extent that such third party claim, suit, or other demand arises out of or relates to: (i) the Company’s compliance with Customer’s specifications (unless the Company had actual knowledge that such specifications would violate the claiming party’s intellectual property right at issue and the Company was negligent in failing to disclose such information to Customer, in which case the Company would bear fifty percent of the cost of Customer’s defense of the claim); (ii) a combination of the Service with products or services not provided by the Company, (iii) a modification of the Service by anyone other than the Company or its authorized independent/sub contractors, unless the Company specifically required such modification; (iv) a use of the Service that is inconsistent with this Agreement or the Company’s written instructions; or (v) information, data, or other content not provided by the Company. To the extent that a third party claim, suit or other demand arising out of one or more conditions stated in Section 13.3.2(i) through (v) is asserted against the Company, Customer shall at its expense defend the Company and indemnify the Company in the amount of any final judgment or settlement thereof.

13.3.3 With respect to any pending or threatened claim, suit or other demand as to which the Company is the indemnifying party pursuant to this Section 13.3, the Company may in its discretion and at its own expense obtain for Customer the right to continue using the Service or alternatively replace or modify the Service, so that it is functionally equivalent but non-infringing. If achievement of the foregoing is not commercially reasonable, the Company may, in its sole discretion, terminate either the Service or this Agreement, without liability of either party to the other, except for Customer’s obligation to pay all charges incurred up to the time of such termination and the Company’s obligation to reimburse Customer any prepaid and unearned fees.

13.3.4 This Section 13.3 provides the sole remedies of Customer and its Affiliates and the exclusive obligations of the Company in connection with any third party claim, suit or other demand asserted against Customer or its Affiliates described in this Section 13.3 or which otherwise asserts a violation of a third party’s intellectual property rights.

13.5 The indemnifying party under any of Sections 13.1 through 13.3 shall be excused from its obligations pursuant to the applicable Section if the indemnified party fails to (i) provide prompt written notice of the third party claim, suit or other demand to the indemnifying party, provided that the failure of the indemnified party to provide the same shall not modify the indemnifying party’s obligations under this Section 13, except and to the extent that indemnifying party is materially prejudiced thereby; (ii) cooperate with all reasonable requests of the indemnifying party, at the indemnifying party’s reasonable expense; and/or (iii) surrender exclusive control to the indemnifying party of the defense and/or settlement of such claim, suit or other demand.

14. Disclaimer of Certain Damages/Limitation of the Company’s Liability.

14.1 Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE SCHEDULES, THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY COMPANY SERVICES, RELATED PRODUCT OR DOCUMENTATION. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE SCHEDULES, THE COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE SCHEDULES, THE COMPANY SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.

14.2 Disclaimer of Certain Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL, ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, RELATED PRODUCTS, DOCUMENTATION AND/OR THE INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL NOT BE APPLICABLE (I) TO THIRD PARTY SETTLEMENTS OR JUDGMENTS.

14.3 Limitation of the Company’s Liability. WITHOUT LIMITATION OF THE PROVISIONS OF SECTION 14.2 ABOVE, THE TOTAL LIABILITY OF THE COMPANY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (A) DIRECT DAMAGES PROVEN BY CUSTOMER OR (B) **** . THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. FURTHER, THE COMPANY’S LIABILITY WITH RESPECT TO INDIVIDUAL COMPANY SERVICES MAY ALSO BE LIMITED PURSUANT TO THE TERMS AND CONDITIONS OF THE APPLICABLE SCHEDULE. CUSTOMER ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN **** PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER. HOWEVER, NOTHING IN THIS SECTION 14.3 SHALL LIMIT THE COMPANY’S LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT, (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY THE COMPANY’S NEGLIGENCE, OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY THE COMPANY’S NEGLIGENCE; OR (D) FOR COSTS OF DEFENSE OR THIRD PARTY SETTLEMENTS OR JUDGMENTS UNDER ANY INDEMNIFICATION OBLIGATION ARISING UNDER SECTION 13 ABOVE

14.4 Limitation of Customer’s Liability. WITHOUT LIMITATION OF THE PROVISIONS OF SECTION 14.2 ABOVE, THE TOTAL LIABILITY OF CUSTOMER (INCLUDING THE CORPORATIONS TAKING SERVICE HEREUNDER) TO THE COMPANY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (A) DIRECT DAMAGES PROVEN BY THE COMPANY OR (B) ****. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. THE COMPANY ACKNOWLEDGES AND ACCEPTS THE REASONABLENESS OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY. NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN **** PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER. HOWEVER, NOTHING IN THIS SECTION 14.4 SHALL LIMIT CUSTOMERS LIABILITY: (A) IN TORT FOR ITS WILLFUL OR INTENTIONAL MISCONDUCT, (B) FOR BODILY INJURY OR DEATH PROXIMATELY CAUSED BY CUSTOMER’S NEGLIGENCE, OR (C) LOSS OR DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY CUSTOMER’S NEGLIGENCE; (D) FOR COSTS OF DEFENSE OR FOR THIRD PARTY SETTLEMENTS OR JUDGMENTS UNDER ANY INDEMNIFICATION OBLIGATION ARISING UNDER SECTION 13 ABOVE; (E) FOR AMOUNTS PAYABLE BY CUSTOMER OR THE CORPORATIONS FOR SERVICES PROVIDED HEREUNDER; (F) FOR EARLY TERMINATION OR UNDERUTILIZATION CHARGES INCURRED UNDER THIS AGREEMENT.

15. Compliance with Laws. All Services are provided subject to applicable local laws and regulation, including the applicable Tariffs, the Guide and price lists of the Company, in the countries in which Service is provided. Each party is responsible for complying with all laws and regulations applicable to its respective obligations related to this Agreement and the Services including without limitation (i) local license or permit requirements, (ii) export, import and customs laws and regulations (such as the export and re-export controls under the US Export Administration Regulations and/or similar regulations of the US or any other country) which may apply to certain equipment, software and technical data provided hereunder, and (iii) foreign corrupt practices acts. Notwithstanding the foregoing, the Company does not represent that any necessary import, export or customs licenses or approvals will be granted with respect to the Services provided hereunder. The Company represents and warrants that it will comply with the Sarbanes-Oxley Act of 2002 as amended from time to time (“SOX”).

16. Participation by Affiliates. Affiliates of the Customer, in which the Customer has an equity ownership interest of **** or greater (“Customer Affiliates”), may purchase Services pursuant to this Agreement. Customer shall remain financially responsible to the Company for all charges incurred by Customer Affiliates hereunder. The Services provided hereunder are intended solely for the use and benefit of Customer and Customer Affiliates. Customer Affiliates shall have no direct recourse to the Company and shall direct all matters relating to ordering, delivery, availability, or quality of services to Customer. Use of the Services by Customer Affiliates shall be deemed a use of the Services by Customer.

17. Security Regulations. The Company personnel will be instructed to comply with security regulations pertinent to each Customer location and reasonable oral security instructions or demands of that location’s personnel. The Company personnel, when deemed appropriate by Customer, in its sole discretion, will be issued a visitor identification card by such entity. Such cards will be surrendered by the Company personnel upon demand by the issuer and without further demand upon expiration or termination of this Agreement. The Company shall not attempt to gain access to restricted areas, to systems, or to Confidential Information in the possession of Customer beyond the access permitted by that entity.

18. Performance of Services. The Company shall provide the Services, including installations, in a good and workmanlike manner in accordance with generally accepted industry standards.

19. Notice of Known Defects. The Company will use reasonable efforts to inform Customer of any defects in the Services known to the Company which might materially interfere with operation or use of the Services. The Company represents that it knows of no material defect in the Services security mechanisms, of any time bombs (code inserted by the manufacturer or the Company, which is

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

not described in the documentation or otherwise disclosed to Customer, whose purpose is to halt effective operation or use of the Service on conditions set by or triggered by any event or person other than Customer), viruses (code embedded in a component of the Service whose purpose is to halt effective operation or use of the Service on conditions set by or triggered by an event or a person other than Customer), trap doors (means by which an unauthorized user may circumvent the security protections of the Service or any part thereof), and similar devices. The Company will use its reasonable efforts to promptly give written notice to Customer of any later discovered defects in its security mechanisms, such as time bombs, viruses, trap doors, or similar devices during the effectiveness of this Agreement. Notwithstanding the foregoing, the Company makes no representation or warranty to Customer as to the security of the Service and does not guarantee that the Service will be secure from unauthorized use.

20. Use of Names and Marks: Nothing in this Agreement shall create in either party any rights in any trademark, trade name, service mark, insignia, symbol, identification and/or logotype of the other party (including its parent, subsidiaries and affiliates). Before either party uses any such mark of the other party, it shall obtain the prior written consent of the other party.

21. Not Used

22. Personnel.

22.1 In no event shall a party or employees or independent contractors of that party be or be considered employees or independent contractors of the other party. Except as stated herein, matters governing the terms and conditions of employment of a party’s employees and independent/sub contractors are entirely within the control of that party. Except as stated herein, each party’s business matters such as work schedules, wage rates, withholding income taxes, disability benefits or the matter and means through which a party’s obligations to its employees or other independent/sub contractors will be accomplished are entirely within the discretion of the party. Each party will be responsible for the supervision, direction and control of its own personnel while engaged in performance of activities under this Agreement. When this Agreement requires performance by the Company or Customer’s employees or independent/sub contractors on the other party’s (including the Corporations’, or other independent/sub contractor’s) premises, the performing party shall carry and maintain Worker’s Compensation Insurance in the minimum amounts of **** and **** and Commercial Liability Insurance with a limit of not less than **** on ISO occurrence form CG 00 01 01 96 (or a substitute form providing equivalent coverage) covering its employees or independent/sub contractors (or require its independent/sub contractors to carry and maintain such insurance) in addition to any other statutory requirements applicable to the location where Services are to be performed. The performing party shall also carry and maintain Professional Liability (or require its independent/sub contractors to carry and maintain such insurance) against losses or damages caused by the performing party’s errors and omissions in performing professional duties. Each party understands that the other may self-insure a large portion of its Commercial General Liability insurance in order to meet its obligations set forth herein. Each party shall carry automobile liability insurance with a limit of not less than **** each accident. All policies shall contain waivers of subrogation. Each party will comply with all applicable governmental regulations, pay all applicable taxes, and exercise control over its personnel (including its independent/sub contractors). Each party shall be responsible for its own employee taxes or other governmental taxes, fines, or fees (including all such taxes, any interest or penalties and reasonable attorney’s fees and costs related thereto) related to the employment of its personnel, and shall indemnify and hold harmless the other party from any liability therefor.

22.2 During the effectiveness of this Agreement and for six months thereafter, a party (“Designating Party”) shall not hire the other party’s employees , who, for MCI, are involved in the performance of the Services, and, for Customer, are located in Customer’s New York, Connecticut, and Maryland locations, unless that employee has not been an employee of the Designating Party for 6 months

22.3 Security Audit. Once during the Term, MCI agrees, on behalf of the Company, to allow a third party auditor, paid for by the Customer (the “Auditor”), to audit Company’s compliance with Company’s security processes. Such Auditor shall be chosen by the Customer from a list compiled and agreed to jointly by the parties of third party auditors experienced in performing such audits. The Auditor shall execute a non-disclosure agreement with the Company no less restrictive than the terms of Section 10 herein prior to start of the audit. The parties acknowledge and agree that the Auditor shall not audit the Company backbone network or any systems or networks related to the provision of services to other Company customers. The scope of the audit shall be limited to the Services, Customer-specific equipment and related CPE and Network Control Center systems.

The Company shall only be required to provide 40 hours of Company resource to assist in the audit process.

To the extent that the Auditor finds that the Company has failed to comply with its own security processes, the Customer shall provide the Company with written notice of such non-compliance and the Company shall have **** to cure the non-compliance from the receipt of Customer’s notice.

23. Miscellaneous.

23.1 Assignment. Neither party may assign this Agreement, or any rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any attempted assignment without such prior written consent shall be void. Notwithstanding the foregoing, the Company may freely assign this Agreement to its parent or any of their subsidiaries or affiliates, or any successor in interest and the Company shall ensure that such assignee or successor shall be bound by the terms and conditions of this Agreement. Customer may assign this Agreement to its parent or any of their subsidiaries or affiliates upon the Company’s approval of the creditworthiness of the proposed assignee, which shall not be unreasonably delayed or withheld. Customer may share the use of the Services with the Corporations subject to the terms and conditions set forth herein provided that Customer shall be responsible for such use by the Corporations. Subject to the foregoing, in the event of any assignment of this Agreement or any rights hereunder by either party, the assigning party shall remain liable for the performance of its obligations hereunder. Any attempted transfer or assignment of this Agreement by either party not in accordance with the terms of this Section 23.1 shall be null and void.

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.

23.2 Governing Law. The construction, interpretation and performance of this Agreement, and all causes of action arising out of this Agreement, whether in contract, indemnity, warranty, strict liability, tort, or otherwise, shall be governed as follows: (1) as to elements subject to the Communications Act of 1934, as amended (“the Telecom Act”), by the Telecom Act; (2) as to elements subject to the Securities Act, by the Securities Act, and (3) as to elements not controlled by the Telecom Act or the Securities Act, by the domestic law of the State of New York without regard to its choice of law principles.

23.3 English Language. In the event of a conflict between this Agreement and any subsequent translations, this English language version shall prevail.

23.4 Enforceability. If any paragraph or clause of this Agreement shall be held to be invalid or unenforceable by any body or entity of competent jurisdiction, then the remainder of the Agreement shall remain in full force and effect and the parties shall promptly negotiate a replacement provision or agree that no replacement is necessary.

23.5 No Waiver. Neither party’s failure, at any time, to enforce any right or remedy available to it under this Agreement shall be construed to be a waiver of such party’s right to enforce each and every provision of this Agreement in the future.

23.6 Notice. Any notice required to be given under this Agreement shall be in writing, in English, and transmitted via overnight courier, hand delivery or certified or registered mail, postage prepaid and return receipt requested, to the parties at the addresses set forth below or such other addresses as may be specified by written notice. Notice sent in accordance with this Section shall be deemed effective when received. A party may from time to time designate another address or addresses by notice to the other party in compliance with this Section.

If to the Company:		MCI WORLDCOM Communications, Inc.
		1 International Drive
		Rye Brook, New York10573
		Attn: ****

with a copy to:		MCI WORLDCOM Communications, Inc.
		2 International Drive
		Rye Brook, New York 10573
		Attn: ****

If to Customer:		The Nasdaq Stock Market, Inc.
		80 Merritt Boulevard
		Trumbull, CT 06611
		Attn: ****

		and

		The Nasdaq Stock Market, Inc.
		80 Merritt Boulevard
		Trumbull, CT 06611
		Attn: ****

With copy of notice of default or dispute to:

		The Nasdaq Stock Market, Inc.
		1801 K Street, N.W.- 8^th Floor
		Washington, DC 20006
		Attn: ****

23.7 Force Majeure. Any delay in or failure of performance by either Customer or the Company under this Agreement (other than repeated failures to comply with payment obligations) shall not be considered a breach of this Agreement if and to the extent caused by events beyond the reasonable control of the party affected, including but not limited to acts of God, embargoes, governmental restrictions, strikes, riots, wars or other military action, civil disorders, rebellion, fires, floods, vandalism, terrorism or sabotage. Market conditions and/or fluctuations (including a downturn of a party’s business) shall not be deemed force majeure events. The party whose performance is affected by such events shall promptly notify the other party, giving details of the force majeure circumstances, and the obligations of the party giving such notice shall be suspended to the extent caused by the force majeure and so long as the force majeure continues, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by the force majeure event. Notwithstanding the foregoing, if a force majeure event extends more than 20 days, then the Company or Customer may terminate the affected Service(s) (or the entire Agreement if all Services are affected) without liability upon ten (10) days’ prior written notice to the party whose performance is impaired by such event, provided that performance is not resumed within such ten day period.

23.8 Use of Facilities and Equipment. The Company’s obligation under this Agreement is to furnish services consisting of facilities and equipment that is exclusively of the Company’s choosing. Unless otherwise provided for in this Agreement, the Company may substitute facilities or equipment used to furnish the Services or substitute comparable service for any Service furnished under this Agreement, at any time.

23.9 Survival. The provisions of this Agreement which by their nature are intended to survive this agreement shall survive the termination or expiration of this Agreement.

23.10 General. This Agreement, including the Tariffs, the Guide, the Schedules, the Attachments and any other documents incorporated herein by reference, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other representations, understandings or agreements regarding this Agreement’s subject matter which are not fully expressed herein. No amendment to this Agreement shall be valid unless in writing and signed by both parties; provided however, that the Company may modify its Tariffs and/or the Guide from time to time in accordance with law and thereby affect the services furnished to Customer. Section titles or references used in this Agreement shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreements among the parties evidenced hereby. The provisions of this Agreement which by their nature are intended to survive this Agreement shall survive the termination or expiration of this Agreement. The parties have duly executed and agreed to be bound by this Agreement as evidenced by the signatures of their authorized representatives.

23.11 Signature Authorization. The parties have duly executed and agreed to be bound by this Agreement as evidenced by the signatures of their authorized representatives. Each party represents and warrants to the other that the signatory identified beneath its name has full authority to execute this Agreement on its behalf.

^* ****Confidential Treatment has been requested for the redacted portions. The confidential redacted portions have been filed separately with the Securities and Exchange Commission.