Broadband Capacity Services Agreement - Progress Telecom Corp. and Direct Partner Telecom Inc.
[logo] Progress Telecom
A Progress Energy Company
PROGRESS TELECOM CORPORATION
BROADBAND CAPACITY SERVICES AGREEMENT
The undersigned parties have read and agreed to the terms and conditions set
forth in the attached Broadband Capacity Services Agreement (the "Agreement")
and Appendices thereto.
Progress Telecom Corporation Direct Partner Telecom, Inc.
(herinafter referred to as "Carrier") (herinafter referred to as "Customer")
By: /s/ James L. Magruder
By: /s/ P. J. Aiello ----------------------------------
---------------------------------- Name:James L. Magruder
Name:P.J. Aiello Title: CEO
Title: VP Sales & Marketing Date: 10/17/03
Date: 10/31/03
Carrier and Customer may be referred to individually as "Party" or collectively
as "Parties."
NOTICE INFORMATION
All written notices required under the Agreement, except as specifically set
forth in the Appendices hereto, shall be sent to the following:
To: Progress Telecom Corporation To: Direct Partner Telecom, Inc.
100 Second Avenue South 110 East Broward Blvd.
Suite 500S Suite 1100
St. Petersburg, Florida 33701 Ft. Lauderdale, FL 33301
Facsimile: (727) 820-5652 Facsimile: (954) 357-4654
Attention: Contract Management Attention: James L. Magruder, Jr.
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BROADBAND CAPACITY SERVICES AGREEMENT
1. SERVICE. Carrier agrees to provide broadband capacity services in capacity
increments from DS-3 to OC-n/STM-n, Gigabit Ethernet or 2.5 gigabit to 10
gigabit Wavelengths (hereinafter referred collectively as the "Service") to
Customer subject to the terms and conditions set forth herein. Service may be
provided through the Carrier's proprietary network ("Network") and/or through
third parties' networks and leased facilities. Any such third party is referred
to as the "Off-Net Provider." Service provided entirely on Carrier's Network is
referred to as "On-Net." Service provided, in whole or part, utilizing third
parties' networks and leased facilities is referred to as "Off-Net." On-Net
Service which utilizes the Network and third party facilities is referred to as
"Off-Net." On-Net Service also is referred to as "Type I Service." Off-Net
Service which utilizes the Network and third party facilities is referred to as
"Type II Service." Off-Net Service which solely utilizes third party facilities
is referred to as "Type III Service." Where Carrier must build fiber or
facilities (e.g., obtain space and/or deploy equipment) to provide Service to
Customer, the Service shall be treated as On-Net with respect to the build upon
Acceptance of the Service by Customer; provided that, notwithstanding anything
else to the contrary contained in this Agreement, with respect to Customer's
initial order of service in connection with the build, Customer shall have no
right to cancel the order once submitted to and accepted by Carrier, Customer
shall have no right to terminate service for convenience prior to expiration of
its term, and Customer shall be reliable for 100% of the monthly recurring
charges applicable to such order for its entire term. Service may include
pre-provisioned capacity, which shall be subject to the terms and conditions set
forth herein and the supplemental pre-provisioned capacity terms and conditions
set forth in Appendix 7. Service provided on a month to month basis shall be
subject to the terms and conditions set forth herein the additional terms and
conditions set forth in Appendix 8. E-1 service shall be subject to the terms
and conditions set forth herein and the additional terms and conditions set
forth in Appendix 9.
2. TERM AND TERMINATION. This agreement shall be effective upon the date of the
last signature of this agreement. The term of this agreement shall be five (5)
years from such effective date (the "Term"). The term of any service order
pursuant to this agreement shall be as specified in the applicable access
service request ("ASR"). If no term is specified in an ASR, it shall be one (1)
year. The term of and ASR shall begin on the date of acceptance by the Customer
as set forth in Appendix 1, Section 2.0. Such date shall hereinafter be referred
to as the Service Date. Upon expiration of the ASR term, the Service shall
automatically renew for successive one (1) month ASR terms at the same rate
unless and until such time as: (a) either Party provides thirty (30) days'
written notice of termination prior to the expiration of the then-current ASR
term or (b) the Term has expired. Upon expiration of the Agreement, all its
terms and conditions shall continue to apply to any pre-existing Service or ASR
extending beyond the Term until such time as all such Service and ASR's have
expired or been terminated.
3. BILLING AND PAYMENT. As compensation for the Service provide by Carrier,
Customer shall pay in U.S. dollars the recurring and non-recurring rates and
charges set forth in the ASR, together with any supplemental charges (such as
for changes to the requested start date, design changes and expedites) and any
applicable Taxes and Additional Charges as defined in Section 15, below
(collectively, the "Charges'). Such Charges shall be invoiced monthly in
advance, commencing on the first day of the month following the Service Date and
on the same day of the month for each month thereafter. Charges shall begin
accruing on the Service Date and on the same day of the month for each month
thereafter. Charges shall begin accruing on the Service Date. The initial
invoice also shall include Charges for Service accrued prior to the commencement
of billing. Payment for such Charges shall be due within thirty (30) days of the
invoice date ("Payment Due Date"). If payment is not received by the Payment Due
Date, Customer shall be considered delinquent and the delinquent balance due
shall be subject to interest charges at the rate of the lesser of one and
one-half percent (1 1/2 %) per month or the highest amount permitted by law,
until paid in full. If Customer in good faith disputes any charges, it shall
timely pay all undisputed charges, and also within thirty (30) days of the
invoice date give Carrier written notice of the disputed amount(s) and written
documentation of the reason(s) therefor or any such disputes shall be deemed
waived. Any disputed amounts that are determined by Carrier to be in error or
not in compliance with this Agreement will be adjusted as a credit on the next
month's invoice following such determination. Any disputed amounts that in good
faith and supported by reasonable documentation are deemed by Carrier to be
correct as billed and in compliance with this Agreement, will be due and payable
by Customer, upon notification and demand by Carrier, along with the late
payment interest charges accrued from the Payment Due Date. Customer shall pay
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to Carrier all costs, including, but not limited to, legal fees, court costs and
the fees of any collection agency, incurred by Carrier in exercising its rights
under this Agreement.
4. EQUIPMENT AND INSTALLATION FOR SERVICE. During the term of the Service,
Customer grants Carrier the right free of charge to occupy portions of the
Customer's facilities and real property ("Space") for the placement and
maintenance of communications equipment and cabling ("Carrier Equipment") and
interconnecting such Carrier Equipment to the Network for the purpose of
providing the Service. Carrier shall be given adequate power for the Carrier
Equipment without charge and the right to pass through third party traffic
without add/drop capability. Carrier shall be permitted seven (7) days a week
access to the Space, subject to reasonable documented rules of Customer
governing such access. Customer shall provide Carrier with written notice of any
proposed modifications being implemented unless Carrier consents to the proposed
modifications.
5. NETWORK STANDARDS FOR ON-NET CIRCUITS. Carrier's On-Net circuits shall comply
with all relevant provisions of Appendix 1, AT&T Compatibility Bulletin No. 119
(TA-34) and the following Bellcore Publications: FR-NWT-000440 (transmission
facilities interfaces); FR-NWT-000064 (related LATA switching); and
;FR-NWT-000439 (operational technology generic requirements).
6. CREDITS. Except as otherwise set forth below in this Section 6, in the event
of an interruption in Service (a "Service Outage"), Customer shall be entitled
to a credit against the following month's invoice in an amount as set fort in
Appendix 1, Section 4.0. A Service Outage begins when Service is interrupted and
ends when Service is restored, but a Service Outage will not be deemed to
include Service interruptions caused, or contributed to, directly or indirectly,
by any act or omission of Customer and/or Customer's end users, affiliates,
agents or representatives, or other third parties; the failure of
interconnecting service or equipment not part of the Carrier Equipment or
Service or otherwise within Carrier's control; any planned or emergency
maintenance; or due to a Force Majeure event or other circumstances beyond
Carrier's reasonable control. Notwithstanding the foregoing, a Service Outage
will not qualify for credits or any other remedy where the facility or circuit
is inoperative, but is not released for testing or repair by Customer, or where
Customer does not give Carrier access to the Space. The credits and right to
cancel Service as set forth in this Section 6 and Appendix 1, Sections 4.0 and
5.0, shall be Customer's sole and exclusive remedies for any loss or damage
sustained as a result of any interruption or failure of the Service or any
Carrier Equipment or service used in providing the Service, regardless of the
cause, and for however long it shall last. No failure by Carrie pursuant to this
Section 6 or Appendix 1, Sections 4.0 and 5.0, shall be deemed an Event of
Default.
7. DEFAULT. A Party shall be deemed in default of this Agreement upon the
occurrence of any one (1) or more of the following events (each, an "Event of
Default"):
7.1 A Party makes a general assignment or arrangement for the benefit of
creditors; becomes bankrupt, becomes a debtor in a bankruptcy
proceeding, becomes insolvent, however evidenced, or becomes unable to
pay its debts as the fall due; files a petition or otherwise commences
a proceeding under any bankruptcy, insolvency, reorganization or
similar law, or has any such petition filed or commenced against it; or
has a liquidator, administrator, receiver, trustee, conservator or
similar official appointed with respect to it or any portion of its
property or assets;
7.2 A Party violates any applicable laws, statutes, ordinances, codes or
other legal requirements with respect to the Service and such
violation(s) is not remedied within the time frame(s) allowed by law;
provided, however, that each Party reserves the right to contest and/or
appeal any such claim of violation in which event the existence of any
default shall be stayed pending resolution of the contest and/or
appeal; or
7.3 A Party fails to perform its obligations under this Agreement
(excluding Customer's non-payment of disputed charges as set forth in
Section 3, above) where such nonperformance is neither excused by a
Force Majeure event nor remedied within thirty (30) days after written
notice thereof; provided that if such nonperformance cannot be cured
within such thirty (30) day period with the exercise of reasonable due
diligence and the defaulting Party provides assurance of its ability to
perform, the defaulting Party shall be given a reasonable additional
period of time in which to cure such nonperformance, so long as it is
acting promptly and diligently to cure; or
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7.4 The failure by Customer to pay undisputed charges within ten (10) days'
written notice of non-payment.
8. TERMINATION.
8.1 In the event that Customer and/or Carrier terminate any particular
Service or ASR, but not the Agreement, such termination shall not
affect any other Service or ASR, and Customer shall continue to pay the
Charges for any Service or ASR not terminated.
8.2 In addition to any other rights of termination specified herein, this
Agreement, or any Service provided hereunder, may be terminated by
Carrier upon thirty (30) days' written notice in the event that a final
order or judgment is entered in any lawsuit or regulatory proceeding
restraining performance under this Agreement, declaring or otherwise
rendering performance unlawful or compelling removal, discontinuation
or divestiture of all or part of the Network, or directing Carrier to
pay an exorbitant or grossly disproportional amount, in Carrier's sole
judgment, for the acquisition of any easement or rights-of-way, and
such order or judgment, has not been vacated, reversed or stayed within
thirty (30) days from the date of entry thereof.
8.3 Upon the occurrence of an Event of Default by Customer, upon written
notice to Customer, Carrier may terminate the Agreement or any ASR(s),
in whole or in part, or suspend Service or any portion thereof with no
further performance obligation, and Customer shall be liable for all
amounts due and owing as of such termination or suspension date, plus
early termination charges as set forth in Appendix 3 Section 5.0 shall
apply.
8.4 Upon the occurrence of an Event of Default by Carrier, upon written
notice to Carrier, Customer, as its sole and exclusive remedy for
Carrier's default, may terminate the applicable ASR(s) or the affected
Service without liability for early termination charges and shall be
entitled to a refund of any prepaid amounts for Service not rendered.
8.5 In the event Customer terminates Carrier's use of Space pursuant to
Section4, above, for any reason, upon written notice to Customer,
Carrier may terminate any affected Service without liability to
Customer. Unless such termination is due to Carrier's sole negligence
or willful misconduct, Customer shall be liable for early termination
charges as set forth in Appendix 3, Section 5.0.
9. DISCLAIMER OF WARRANTIES. CARRIER MAKES NO ORAL OR WRITTEN WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIES, IN FACT OR IN LAW, AND ALL OTHER WARRANTIES
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED AND
DISCLAIMED.
10. LIMITATION OF LIABILITY. Except as otherwise specifically set forth in this
Agreement, neither Party shall be liable to the other Party for any direct or
indirect, consequential, special, incidental, reliance or punitive damages of
any kind or nature whatsoever (including, but not limited, to any lost profits,
lost revenue, lost savings, cost of substitute equipment or services, or harm to
business), regardless of the forseeability thereof, whether based upon statute,
contract, tort, negligence, strict liability or otherwise. Each Party hereby
releases the other Party, its subsidiaries and affiliates, and their respective
officers, directors, managers, employees and agents from any such claim. The
limitations set forth in this Section 10 shall not limit with respect to third
party claims against Carrier as set forth in Section 11, below.
11. INDEMNIFICATION.
11.1 Each Party shall indemnify, defend and hold harmless the other from and
against any and all liabilities, claims, damages, losses, costs,
expenses and judgments arising out of or in connection with bodily
injury (including death) or damage to tangible property caused by the
negligence or will misconduct of the indemnifying Party, its employees,
directors, officers, agents or invitees.
11.2 In addition to its obligations pursuant to Section 11.1, above,
Customer shall indemnify, defend and hold harmless Carrier from and
against any and all (i) proceedings to recover taxes, fines or
penalties for failure of the Customer to obtain or to maintain in
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effect any necessary certificates, permits, licenses, approvals,
authorizations or other authority, whether federal, state or
international, to use the Service required to be obtained or maintained
by Customer under applicable law; (ii) copyright infringement, patent
infringement or unauthorized use of a trade secret, trademark, trade
name, or service mark by Customer; and (iii) any and all claims of
Customer's end users that use the Service through Customer, and any and
all third party claims resulting from Customer's use of the Service.
11.3 Procedure. Each Party agrees to promptly notify the other Party, in
writing, of any suit, claim, proceeding or threat thereof for which
indemnification is sought, and to provide reasonable assistance to the
indemnifying Party upon the indemnifying Party's request and at such
indemnifying Party's expense. The indemnifying party shall have the
right to control the defense of any such matter and to all negotiations
for settlement or compromise shall be subject to the indemnified
Party's written consent, which shall not be unreasonably withheld.
12. INSURANCE. Throughout the term of this Agreement and any extension thereof,
each Party shall maintain, and upon written request, shall provide to the other
Party proof of, adequate comprehensive general liability insurance with a
carrier or carriers reasonably satisfactory to the other Party with a limit of
not less that $1,000,000 per occurrence for bodily injury liability and property
damage liability, including coverage extensions for blanket contractual
liability, personal injury liability and products and completed operations
liability. The policies shall include the other Party as an additional insured
and shall explicitly waive any right of subrogation.
13. FORCE MAJEURE. Carrier shall not be held liable for any delay or failure in
performance of any part of this Agreement from any cause beyond its reasonable
control and/or without its fault or negligence, including, without limitation,
acts of God, acts of civil or military authority, government laws, rules or
regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections,
fires, explosions, earthquakes, nuclear accidents, floods, cable or fiber cuts,
strikes or Party or its affiliates, power blackouts, volcanic action, other
major environmental disturbances, unusually severe weather conditions, or
hurricanes (collectively, "Force Majeure").
14. CONFIDENTIAL INFORMATION.
14.1 This Agreement and all documents, data, information, maps and
other materials, which are disclosed by one Party to the other Party in
fulfilling the provisions and the intent of this Agreement, are and
shall be deemed confidential (the "Confidential Information").
Notwithstanding the forgoing, the following information shall not
constitute Confidential Information: (a) information that was in a
Party's possession prior to disclosure from the other Party; (b)
information that is or becomes a matter of public knowledge or record
through no fault of the Party to whom the information was disclose; (c)
information that is rightfully received by a Party from a third party
without a duty of confidentiality; (d) information that is disclosed by
the disclosing Party to a third party without a duty of confidentiality
on the third party; and (e) information that can demonstrate that it
developed independently. Neither Party shall divulge or otherwise
disclose the Confidential Information to any third party without prior
written consent of the other Party, except that either Party may make
disclosure on a need-to-know basis to those employees required for the
implementation or performance of the Agreement. In addition, either
Party may make disclosure as required by a court order or as otherwise
required by law, rule, regulation or in the performance of a Party's
obligations (or those of it affiliates) as a public company. If either
Party is required by law, rule, regulation or similar process to
disclose any Confidential Information, it will provide the other Party
with prompt written notice of such request or requirement so that such
Party may seek an appropriate protective order and/or otherwise seek to
limit such disclosure.
14.2 Upon expiration or termination of this Agreement for any reason or upon
request of a Party, each Party shall return all Confidential
Information, together with any copies of the same, to the other Party.
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The requirements of confidentiality set forth herein shall survive the
return of such Confidential Information or the expiration or
termination of this Agreement for a period of two (2) years.
14.3 Nothing herein shall be construed as granting any right or license
under any copyrights, trademarks, service marks, trade names,
inventions or patents now or hereafter owned or controlled by either
Party
15. TAXES AND FEES. Any applicable foreign, federal, state or local use, excise,
gross receipts, sales, value added or privilege taxes; duties, surcharges to
recover universal service contributions, regulatory assessment fees or other
taxes, fees, charges, surcharges or similar liabilities imposed on or based upon
the provision, sale or use of the Service furnished by Carrier (collectively,
"Taxes and Additional Charges") shall be paid by Customer in addition to the
regular recurring and non-recurring rates and charges under each ASR, excluding
taxes based upon Carrier's net income or real property. Applicable Taxes and
Additional Charges shall include any new Taxes and Additional Charges imposed
after the effective date of this Agreement and shall also include all interest,
penalties, fees and other charges for late payment. In the event Customer
believes it is exempt from any Taxes and Additional Charges, Customer shall
provide Carrier with a valid exemption certificate from the appropriate taxing
authority evidencing such claimed exemption. Customer shall be liable to Carrier
for any and all costs, expenses and liabilities of any kind incurred by Carrier
(including, without limitation, the time value of money related to tax refunds
for payments made by Carrier based upon Customer's Service that are subsequently
exempt from taxation) in connection with an otherwise valid exemption
certificate not provided by Customer to Carrier within one (1) month of the
Service Date.
16. INDEPENDENT CONTRACTORS. This Agreement does not create a partnership or
joint venture between Customer and Carrier. Except as expressly set forth in any
letter of agency issued by Carrier or Customer with respect to Carrier's
provision of the Service, this Agreement does not contemplate either Party as
the agent or legal representative of the other Party and neither Party shall
have any authority to agree for or bind the other Party in any manner
whatsoever. This Agreement confers no right of any kind upon any third party.
The relationship between Carrier and Customer is solely that of independent
contractors.
17. WAIVER. No failure or delay on the part of a Party in exercising any right,
power or privilege hereunder and no course of dealing by a Party shall operate
as a waiver thereof nor shall any single or partial exercise of any right, power
or privilege by such Party hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
18. AMENDMENT. No subsequent agreement among the Parties concerning the Service
or this Agreement shall be effective or binding unless it is made in writing by
authorized representatives of the Parties.
19. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the
Parties and supersedes any and all prior agreements, arrangements or
understandings relating to the subject matter hereof. In the event of a conflict
between this Agreement and any ASR executed hereunder, this Agreement shall
control.
20. SEVERABILITY. If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
this Agreement.
21. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the
State of Florida without regard to choice of law principles. Venue for any and
all actions brought by either party to enforce the terms hereof shall reside in
Pinellas County, Florida, and each party hereby irrevocable submits to the
personal jurisdiction of the courts located in such country.
22. NON-EXCLUSIVE. This Agreement is non-exclusive. Nothing in this Agreement
shall prevent Customer or Carrier from entering into similar arrangements with,
or otherwise providing services to, any other person or entity.
23. BENEFITS TO THIRD PARTIES. This Agreement shall be binding upon and shall
inure to the benefit of the Parties hereto and their respective successors and
permitted assigns. The representations, warranties, covenants and agreements of
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the Parties set forth in this Agreement are not intended for, nor shall they be
for the benefit of, or enforceable by, any third party or person not a Party
hereto, including without limitation, Customer's end users.
24. ASSIGNMENT. Neither Party may assign its rights or obligations under this
Agreement without the other Party's prior written consent, which shall not be
unreasonably withheld; provided, however, a Party may, without the other Party's
consent upon giving notice to the other Party, assign its rights and obligations
(in whole but not in part) hereunder to (i) an Affiliate (as defined below) or
(ii) any person or entity who buys or is transferred all or substantially all of
the Party's assets or equity. Any attempted assignment in violation of the
foregoing shall be null and void and of no force or effect. The Parties' rights
and obligations will bind and inure to the benefit of their respective
successors and permitted assigns. "Affiliate" means any person or entity that
directly or indirectly controls, is controlled by or is under common control
with the Party.
25. PUBLICITY. This Agreement shall not be construed as granting to either Party
a license to use any of the other Party's (or its affiliates') trademarks,
service marks or trade names ("Trademarks"). Neither Party shall, without prior
written consent, use the other Party's Trademarks in marketing, promotional,
advertising or similar materials, or in any other manner. Neither Party may
issue any public or press release regarding the other Party, or disclose the
existence of this Agreement, without the prior consent of the other Party.
26. NEW RULES OR ACTIONS. The Parties acknowledge that some rights and
obligations of Carrier under this Agreement may be affected by future rules,
regulations, guidelines, orders, treaties or laws promulgated, enacted or
entered into by federal and state legislatures, by federal and state agencies,
local or federal governments, and international or other regulatory bodies
(together "Rules or Actions"). In the event that any such Rules or Actions
adversely revise or modify Carrier's obligations under this Agreement, Carrier
may, upon written notice to Customer, require this Agreement be renegotiated in
good faith to reflect the effect of any such Rules or Actions.
27. NETWORK AND SYSTEM INTEGRITY. Customer and its end users shall not operate
hardware or software that Carrier, in its sole discretion, deems harmful,
hazardous or capable of causing interference, congestion or interruptions to the
Network, Carrier Equipment or Service. Upon written or verbal notice from
Carrier, Customer and/or end user(s) shall immediately remove the offending
hardware or software. If Customer and/or end user(s) fail to do so, Carrier may
suspend Service without notice; provided, however, that Carrier shall afford
Customer a reasonable opportunity to cure before terminating this Agreement.
28. HEADINGS. The paragraph headings used in this Agreement are for purposes of
convenience only and shall not be deemed a part of this Agreement for purposes
of construction or interpretation.
29. CREDIT APPROVAL AND SECURITY. Carrier's provision of Service is contingent
upon continuing credit approval by Carrier. Customer authorizes Carrier to seek
such details concerning its credit background as Carrier deems necessary, and
consents to Carrier's disclosure of account information to or from credit
reporting associations and other providers of telecommunications services. At
any time, Carrier may require a deposit, letter of credit or other form of
security in an amount acceptable to Carrier pursuant to Carrier's credit review
procedures.
30. CONTRACT EXECUTION. Upon execution of this Agreement by both Parties, any
copy, duplicate or facsimile of this executed Agreement will be valid and
legally binding with the same force and effect as the executed Agreement bearing
original signatures.
31. APPENDICES. The following Appendices shall be attached to and incorporated
into this Agreement. In the event of any inconsistency between the terms
contained in the Appendices and this Agreement, the Appendices shall control
with respect to the specific inconsistency.
Appendix 1 Specifications, Testing and Service Outages
Appendix 2 Maintenance and Repair
Appendix 3 Ordering Procedures and Cancellation/Early Termination Charges
Appendix 4 Pricing
Appendix 5 Sample Access Service Request
Appendix 6 Sample Service Acceptance Notice
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APPENDIX 1
SPECIFICATIONS, TESTING AND SERVICE OUTAGES
1.0 SPECIFICATIONS
1.1 Network Availability Objective measured monthly:
1.1.1 On-Net Wavelengths:
2.5 or 10 gigabit Unprotected 99.900%
2.5 or 10 gigabit Protected 99.990%
Gigabit Ethernet (intra-metro, only):
Unprotected 99.900%
Electrical/Optical:
DS-3 or OC-n/STM-n not Fully Redundant
99.990%
DS-3 or OC-n/STM-n Fully Redundant
99.997%
1.1.2 Off-Net
1.2 Background Bit Error Rate:
1.2.1 On-Net DS-3 and OC-n/STM-n 2x10 -10
1.2.2 Off-Net Off-Net provider standards apply
1.3 Error Bursts: No more than 1 event second per 24
hours
1.4 Error Free Seconds:
1.4.1 On-Net DS-3 and OC-n/STM-n
1.4.2 Off-Net Off-Net provider standards
apply
1.5 Bi-Polar Violations: None
1.6 Clocking: Primary reference source, either GPS
or stand-alone Cesium clock, a
Stratum 1 level source.
1.7 Absolute Delay: 1ms per 125 miles fiber
For purposes of this Agreement, "Protected" refers to Service that utilizes a
circuit providing both working and protection channels. The circuit is
electronically switched to the protection channel in the event of a lost of
signal (e.g., electronic failure). A circuit may be further protected by means
of a physically divers path, which provides protection in the event of a fiber
cut. Such a circuit would provide Service referred to as "Fully Redundant."
"Unprotected" refers to Service that utilizes a circuit that does not have a
protect path available in the event of a loss of signal. Failures to meet
specifications other than the applicable network availability objective will
typically result in an alarm in Carrier's Network Operations Center ("NOC") and,
in the event of such alarm, Carrier will contact Customer, whereupon the Parties
will address the cause of the alarm on an individual basis.
2.0 System Acceptance Procedure: When Carrier has completed all work on the
Service, Carrier shall test the Service according to this Appendix 1. Carrier
will then notify Customer that the Service is ready and Carrier will send to
Customer the Service Acceptance Notice set forth in Appendix 6 ("Acceptance
Notice") via facsimile or e-mail. Customer shall have the right, prior to
Acceptance, to monitor the Service for up to two (2) days to determine if
Service Acceptance requirements have been met. Customer shall be deemed to have
Accepted the Service upon the earlier of: (i) Carrier's receipt of a signed
Acceptance Notice from Customer; (ii) Customer's use of the Service for other
than testing; or (iii) Customer's failure to return a signed Acceptance Notice
stating with specificity the basis for its refusal to accept the Service within
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two (2) business days of receipt of the Acceptance Notice from the Carrier. In
the event of Acceptance pursuant to the foregoing subpart (iii), Acceptance
shall be deemed to have occurred retroactive to the date of Customer's receipt
of such Acceptance Notice. If Customer finds the Service does not meet the
specifications; the Customer must return the Acceptance Notice to Carrier
stating with specificity the basis for its claim. Carrier shall use commercially
reasonable efforts to repair the Service to meet the specifications and resend
the Acceptance Notice to Customer as described above.
3.0 System Acceptance Criteria: The following acceptance tests will be
conducted:
3.1 DS-3, OC-n, STM-n Gigabit Ethernet and Wavelengths: Testing
shall be clear channel, head-to-head cooperative testing.
Testing shall run over a twenty-four (24) hour period mutually
agreed upon by the Parties. Customer shall review test results
and shall notify Carrier of its acceptance. Customer shall
accept the Service when it is error-free over any twenty-four
(24) hour period.
3.2 Equipment Alarm and Status Indication Functionality: All
equipment alarm functions and status indicators provided by
the equipment vendor will function properly under all
simulated (non-destructive) alarm conditions.
4.0 Credits for Service Outages
4.1 On-Net Service: For On-Net circuits, Customer shall qualify
for credits in an amount equal to 1/1440 of the monthly
recurring charge applicable to such circuits for each
half-hour (or portion thereof) of a Service Outage rounded up
to the next half-hour.
4.2 Off-Net Service: For Type II Service where a Service Outage is
on the Network portion of the Service, the credit procedure in
Section 4.1, above, shall apply to the Network portion of the
Service. For Type II Service where a Service interruption is
on the non-Network portion of the Service, Customer shall
qualify for credits in an amount equal to the credits awarded
by the Off-Net provider to Carrier for the specific Service
interruption. For Type III Service, Customer shall qualify for
credits in an amount equal to the credits awarded by the
Off-Net provider to Carrier for the specific Service
interruption.
5.0 Termination for Chronic Severe Outages (On-Net Fully Redundant or
Protected Service, only): Upon written notice to Carrier, Customer may
terminate on On-Net circuit without further liability, except for
charges for Service rendered prior to disconnection, in the event the
On-Net circuit experiences three (3) or more Service Outages amounting
to an aggregate period of eight (8) or more hours over any ninety (90)
day period.
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APPENDIX 2
MAINTENANCE AND REPAIR
1.0 Performance Monitoring and Reporting.
1.1 Carrier will be responsible for performing surveillance on its
major systems. However, Customer may also perform monitoring
of Customer's leased bandwidth from Carrier's demarcation
point at the expense of Customer.
1.2 Carrier will sectionalize faults occurring within the system
localized to the Customer system elements as follows: Carrier
transmission equipment on the end user premises; equipment
between Carrier and Carrier's demarcation point.
2.0 Maintenance and Repair
2.1 Any maintenance required n the Carrier's system will be
performed by Carrier or its designated contractors at no
additional cost to Customer.
2.2 Any maintenance or service function performed by Carrier on
its Network which will or could affect Service provide by
Customer to end users will be coordinated and scheduled
through Customer contacts for maintenance and escalation
purposes and provide updated lists to Carrier, as necessary.
2.3 Response & Repair Time. In the event of an On-Net Service
Outage, when necessary, Carrier will make commercially
reasonable efforts to have repair personnel on site within
four (4) hours of learning of the Service Outage. Carrier will
use commercially reasonable efforts to restore the Service on
the failed system as follows:
(i) Electronic Restoration. In the event of an On-Net
electronic failure, Carrier will use commercially
reasonable efforts to restore Service to the affected
electronics within two (2) hours.
(ii) Cable Restoration. Carrier will use commercially
reasonable efforts to restore the cable within eight
(8) hours of failure.
2.4 Carrier will maintain a twenty-four (24) hours a day, seven
(7) days a week point-of-contact to whom Customer can report
system trouble or faults.
2.5 Equipment Spares. Carrier will provide all maintenance spares
plus repair and return service of defective parts.
2.6 Scheduled Maintenance.
2.6.1 Scheduled routing maintenance will be performed
during specified customer maintenance windows and
will be communicated in advance to Customer. Carrier
will notify Customer upon completion of the scheduled
maintenance work.
2.6.2 Maintenance which may place the system in jeopardy or
require system down time will normally be performed
during the "Maintenance Window" of 12:00 midnight and
6:00 a.m. Eastern time or, upon Customer's request,
at a time mutually agreed to by Customer and Carrier.
Maintenance that may place the system in jeopardy or
require system down time will be cleared with
Customer no less than forty-eight (48) hours prior to
commencement. Notwithstanding the foregoing, the
Customer understands and agrees that any time Carrier
may perform emergency maintenance, in its sole
discretion and without notice, to preserve the
overall integrity of its Network.
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APPENDIX 3
ORDERING PROCEDURES AND CANCELLATION/EARLY TERMINATION CHARGES
1.0 Contacts and Contac Lists. Once an order is placed by Customer, and
Carrier has provided an acknowledgement of receipt of such order to
Customer pursuant to this Appendix 3, all communications by Customer to
Carrier with respect to such order prior to and after activation
(including, without limitation, any Customer notice of cancellation or
early termination) shall be made to the Account Manager identified in
the acknowledgement of receipt. Communications between Customer and
Carrier pertaining to Service related issues shall be as set forth in
contact lists exchange by the Parties.
2.0 Ordering Vehicle. Orders shall be placed by use of an ASR. Upon
acceptance of an ASR by Carrier, the ASR shall form part of the
Agreement.
3.0 Standard On-Net SONET/SDH Service Installation Interval, Expedites and
On-Net Service Installation Delay Credits. The standard installation
interval for On-Net SONET/SDH Service is ten (10) business days from
Carrier's receipt of a complete and accurate ASR that Carrier has
available capacity to provision (a "clean ASR"). Notwithstanding the
foregoing, the Requested Service Date set forth on a clean ASR is not
binding upon Carrier. If Customer desires to expedite Service
installation, Customer shall so inform Carrier. Carrier will provide
Customer with the applicable expedite fee, which is determined on an
individual case basis. Customer shall then inform Carrier whether
Customer desires Carrier to process the Due Date specified on the Firm
Order Confirmation, as described in Section 4.11, below, and such
failure is not caused by, or contributed to, directly or indirectly, by
any act or omission of Customer, third parties or other causes beyond
the reasonable control of Carrier, Customer shall be entitled to a
credit equal to ten percent (10%) of the first month's monthly
recurring charge for the affected circuit for each day of delay
beginning on the sixth (6th) day, not to exceed a maximum of one
hundred (100%) of the affected circuit's first month's monthly
recurring charge. The foregoing remedy shall be Customer's sole and
exclusive remedy for any installation delay, regardless of the cause,
and for however long it shall last, and no such installation delay
shall be deemed an Event of Default.
4.0 Service Order Intervals and Procedures
4.1 On-Net Service Requests:
4.11 The ASR and Firm Order Confirmation- Customer will transmit
ASR's to Carrier via facsimile or e-mail. Following receipt of
the ASR, Carrier shall provide an acknowledgement of receipt
to Customer via facsimile or e-mail. In the event the ASR is
acceptable to Carrier (i.e., the ASR contains all required
information and capacity is available to provision the order),
Carrier will issue a Firm Order Confirmation ("FOC") to
Customer via facsimile or e-mail. The FOC constitutes
Carrier's acceptance of the ASR, Carrier will provide FOC to
Customer within two (2) business days of Carrier's
acknowledgement of receipt of a clean ASR. The FOC will
provide an estimated in-service date identified on the FOC as
the "Due Date." Theis Due Date supersedes the Requested
Service Date set forth on the ASR. In the event the ASR is not
acceptable to Carrier, Carrier will provide a response to
Customer noting the basis for rejection of the ASR within two
(2) business days of receipt.
Where an ASR, acknowledgement of receipt of an ASR, a FOC, an
Acceptance Notice and/or a communication regarding
cancellation or early termination is delivered via e-mail, the
e-mail must reflect as its origin the authorized e-mail
address or identity of the sending Party (i.e., in the "From"
line).
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4.12 Design Layout Record ("DLR") - Carrier will provide DLR
information within five (5) business days of issuance of the
FOC unless the order has an expedited Due Date, in which case
the Parties may agree to a different date for provision of the
DLR.
4.2 Off-Net Service Requests:
4.21 Request for Quotation - Customer will submit to Carrier a
request for quotation ("RFQ) specifying the Service requested,
the location to be served, the requested Service activation
date, the circuit term, and other information specific to the
applicable RFQ.
4.22 Carrier Quotation - Carrier shall, within five (5) business
days of receipt of an RFQ, contact Customer verbally as to
whether or not Carrier can provide the requested Service. If
Carrier is willing to provide service, Carrier shall, within
ten (10) business days of receipt of an RFQ, submit to
Customer a written quotation specifying: (i) the Service to be
provided; (ii) the location to be served; (iii) the applicable
non-recurring charge; (iv) the applicable monthly recurring
charge; (v) the Service term; (vi)j the anticipated Service
activation date based upon the date of receipt of Customer's
order; and (vii) any other terms and conditions applicable to
the particular Off-Net Service, such as cancellation charges
and installation delay credits, if any.
4.23 ASR - If Carrier has submitted a quotation under Subparagraph
4.22, above, Customer may order the Service within five (50
days of receipt of such quotation by tendering to Carrier an
ASR with a copy of the quotation attached. Thereafter the
procedures set forth in Subparagraphs 4.11 and 4.12, above,
shall apply.
5.0 Cancellation and Early Termination Charges
5.1 For On-Net Service:
There will be no cancellation charge if the On-Net Service is canceled
prior to the issuance of the DLR. If the On-Net Service is canceled
after the DLR is issued, but prior to the Service Date, Customer shall
pay Carrier's then-current cancellation charge for that Service. On or
after the Service Date, Customer may terminate On-Net Service prior to
the expiration of the Service term by providing Carrier thirty (30)
days' prior written notice of termination, and Customer will be subject
to a termination charge, as liquidated damages and not as a penalty, in
the amount of:
a. 100% of the total monthly recurring charges specified in the
ASR for the Service multiplied by the remaining months in the
first year of the term, plus
b. 50% of the total monthly recurring charges specified in the
ASR for the Service multiplied by the remaining months after
the first twelve (12) months of the term.
Notwithstanding the foregoing, Customer may terminate an On-Net circuit
that has been in service for a period of net less than twelve months
without being subject to early termination charges under the following
conditions: (1) Customer provides Carrier no less than thirty (30)
days' written notice of Customer's termination/disconnection of the
circuit and during that thirty (30) day period, Customer submits an ASR
acceptable to Carrier for a new circuit and Customer specifies that the
new circuit replaces an earlier one and specifically identifies the
circuit being replaced, and (2) the aggregate monthly recurring charges
of the new circuit over its term are equal to or greater than the
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<PAGE>
payments Carrier would have received for the terminated/disconnected
circuit over the remainder of its term, plus Customer pays to Carrier,
upon thirty (30) days of invoice, any nonrecurring costs Carrier incurs
as a result of terminating/disconnecting the circuit and an
non-recurring charge for installation of the new circuit. In the event
any one of these conditions is not satisfied, or if the new circuit is
cancelled prior to activation, applicable early termination charges
will apply to the terminated circuit. In addition, during any time
period between the disconnection of the terminated circuit and
activation of the replacement circuit, Customer will continue to be
charged, and agrees to pay Carrier, the monthly recurring charge of the
terminated circuit.
5.2 For Off-Net Service:
For cancellations prior to the Service Date, Customer shall be liable
for any charges assessed Carrier by the Off-Net provider and any other
charges incurred by Carrier. For any termination after the Service
Date, Customer shall be liable to Carrier for one hundred percent
(100%) of the total monthly recurring charges specified in the ASR for
the Service multiplied by the remaining months of the term.
5.3 Liquidated Damages:
The Parties agree that Carrier's damages in the event of Service
cancellation or termination are difficult or impossible to ascertain.
Therefore, the Parties agree that the liquidated damages set forth in
the Section 5 are mutually-agreed upon as reasonable estimates thereof
and are not intended as a penalty.
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<PAGE>
APPENDIX 6
SAMPLE SERVICE ACCEPTANCE NOTICE
This Service Acceptance Notice has been prepared pursuant to the broadband
services sales agreement (the "Agreement") between Progress Telecom ("Carrier)
and Insert Customer Name ("Customer"). Carrier has completed the installation
and testing of the following facilities in accordance with the Agreement:
Progress CKT ID
Customer PON
Customer Circuit ID
A LOC Z LOC
Capacity Completion Date
------------------------------------------
Service Type Date
By their respective signatures below, Carrier certifies, and Customer agrees,
that the above-described facilities have been tested and that the results of
such tests (which are attached hereto) conform to the applicable System
Acceptance Criteria.
Acceptance shall be deemed to have occurred if Customer does not respond in
writing within Insert Contractual Interval of receipt of this Service Acceptance
Notice stating with specificity the reason(s) that the circuit does not meet the
applicable System Acceptance Criteria.
Please contact our provisioning department at 727-820-5400 during the business
hours of 8:00 am to 5:00 pm, Eastern Time, Monday through Friday, when you are
ready to place live traffic over the circuit. After business hours, please
contact our Network Operations Center at 877-782-6621. Prior to acceptance and
the placement of live traffic over the circuit, facilities will be turned down
in the event of an alarm(s) due to monitoring issues in connection with our
network. Thank you for you cooperation.
Carrier Representative: Date:
---------------------------- ---------------------
Customer Representative: Date:
--------------------------- ---------------------
Service Acceptance Date:
--------------------------
================================================================================
USE THIS SPACE BELOW IF FACILITIES ARE NOT ACCEPTED BY CUSTOMER
The facilities tested DO NOT meet the System Acceptance Criteria for the
following reasons:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Customer Representative: _________________________________ Date: _______________
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Progress Telecom
A Progress Energy Company
October 17, 2003
Direct Partner Telecom, Inc.
110 East Broward Blvd.
Suite 1100
Ft. Lauderdale, FL 33301
Facsimile: (954) 357-4654
Attention: James L. Magruder, Jr.
Re: FlexBand 3D Proposal
Dear Mr. Magruder:
This letter constitutes a legally binding letter agreement ("Letter Agreement")
between Progress Telecom Corporation ("Progress Telecom') and Direct Partner
Telecom, Inc. ("DPT") governing DPT's order of broadband capacity from Progress
Telecom pursuant to the "Lit Capacity Proposal For Direct Partner Telecom,"
dated October 17, 2003 (the "Proposal").
Progress Telecom and DPT agreeing to be legally bound, hereby agree as follows:
1. Except as specifically set forth in the Proposal or this Letter
Agreement, all broadband capacity orders submitted by DPT to Progress
Telecom shall be governed by the terms and conditions of the Broadband
Capacity Services Agreement entered into between Progress Telecom and
DPT.
2. DPT has selected the 2nd FlexBand - 48 alternative set forth on page 6
of the Proposal, which calls for an initial order of twenty-four (24)
DS-3 equivalents for a monthly recurring charge ("MRC") of [ * ]. DPT
and Progress Telecom agree that upon activation of the first
circuit(s), DPT will be liable for an MRC of [ * ], and no later than
ninety (90) days after the date of this Letter Agreement, whether or
not all circuits in the initial Phase 1 order have been activated, DPT
will be liable for an MRC of $[ * ]. Subsequent specified minimum
commitments remain unchanged. DPT has selected the five (5) year term
and associated Turn-Up Schedule that includes specified minimum DS-3
equivalent commitments over the five (5) year term. For purposes of the
specified minimum commitments over the five (5) year term, excluding
the initial Phase 1 order, the lowest DS-3 equivalent pricing will
apply incrementally to the required DS-3 equivalents in excess of the
initial first twenty-four (24) DS-3 equivalents. The five (5) year term
commences upon activation of the first DS-3/circuit and all subsequent
orders are co-terminus with that initial DS-3/circuit.
1
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3. DPT circuits that are ordered as part of the Proposal can be moved as
long as the A and Z locations remain locations covered by the selected
alternative, subject to the following: (i) DPT shall pay a one-time
charge of $500 per move (ii) if Progress Telecom is requested to order
the new cross connect(s), the cross-connect fees will be passed through
to DPT at the new location(s), and (iii) any cross-connect termination
fees incurred by Progress Telecom at the abandoned location(s) shall be
passed through to DPT.
4. Unless otherwise requested by DPT, DPT will order necessary cross
connects. If Progress Telecom is requested to order any cross connects,
the cross-connect fees will be passed through to DPT.
5. If, upon the three (3) year anniversary date of this Letter Agreement,
Progress Telecom's on-net rates for like circuits have decreased by
twenty percent (20%) or more, Progress Telecom agrees to enter into
good faith negotiations with DPT to decrease rates for new circuits on
a going-forward basis.
6. Progress Telecom agrees that it will arrange with DPT to provide DPT
collocation space at the NAP of the Americas for one rack and will only
charge DPT for power on a pass-through basis.
7. Upon execution of this Letter Agreement by both Progress Telecom and
DPT, any copy, duplicate or facsimile of this executed Letter Agreement
will be valid and legally binding with the same force and effect as the
executed Letter Agreement bearing original signatures.
If you are in agreement with the foregoing, please so indicate by signing this
Letter Agreement below and returning by facsimile the fully-executed letter to
me.
Sincerely yours,
Progress Telecom Corporation
By: /s/ P. J. Aiello
--------------------------------------
Name: P. J. Aiello
-------------------------------------
Title: VP Sales & Marketing
----------------------------------
Accepted and agreed to this 17th (SEAL)
day of October, 2003.
Direct Partners Telecom, Inc.
By: /s/ James L. Magruder
--------------------------------------
Name: James L. Magruder
-------------------------------------
Title: CEO
----------------------------------
2