Cover Agreement for Sprint Communications Products and Services - Sprint Communications Company LP and WebSideStory Inc.
COVER AGREEMENT
FOR
SPRINT COMMUNICATIONS PRODUCTS AND SERVICES
This Cover Agreement for Sprint Communications Products and Services
("Agreement") by and between SPRINT COMMUNICATIONS COMPANY L.P. ("Sprint") and
WEB SIDE STORY ("Customer") establishes certain special prices and related terms
and conditions governing Sprint's provision of Domestic Sprint IP products and
services ("Products and Services") to Customer.
Sprint is a telecommunications common carrier providing intrastate, interstate
and international services to customers: (1) on a non-tariff basis; and, (2)
pursuant to tariffs on file with the Federal Communications Commission (F.C.C.),
various state regulatory commissions or in-country international
telecommunications bodies (collectively referred to as "Tariffs"), as
applicable, and as amended from time to time by Sprint.
1. TERM
The term ("Term") of this Agreement is 36 months and begins on the first
day of the first complete billing month following execution of this
Agreement by both parties ("Commencement Date"). When this Agreement
expires or terminates, Sprint will provide the Products and Services to
Customer at Sprint's then current Tariff or public price list.
2. SPECIAL PRICES FOR PRODUCTS AND SERVICES
Subject to the terms and conditions in this Agreement, Customer will receive the
rates, charges and discounts ("Special Prices") in Attachment A (attached and
incorporated into this Agreement) on its purchase of the Products and Services
during the Term. Rates, charges and discounts for Sprint products and services
not in this Agreement will be provided under the applicable Tariffs or public
price list.
3. OTHER TERMS AND CONDITIONS
3.1 Orders and Other Documents. Customer will order the Products and
Services by executing Sprint's standard Order for Data Communication
Services form and other order forms designated by Sprint ("Orders"),
subject to Sprint's acceptance of the Orders. The minimum Order term
for the Products and Services is 3 years. The Sprint Tariffs, if
applicable, and Sprint's IP Products and Services Terms and
Conditions (attached and incorporated into this Agreement as
Attachment B) apply to Sprint's provision of Products and Services.
If there is a conflict between this Agreement and the documents
referenced in this Agreement, the order of precedence is: (1) Sprint
Tariffs, if applicable (2) the terms and conditions in this Agreement
(including the Attachments), (3) Sprint's IP Products and Services
Terms and Conditions and (4) the Orders.
3.2 Performance Guarantees. The performance guarantees for Sprint's IP
Products and Services are defined in Attachment D (Availability) and
Attachment E (Delay) (attached and incorporated into this Agreement).
3.3 Material Failure. Customer agrees to provide prompt written notice to
Sprint of any material failure by Sprint to provide Products and
Services as set forth in this Agreement. If Sprint fails to cure the
material failure within a reasonable time, Customer may terminate the
affected Products and Services on 30 days' written notice to Sprint.
A material failure by Sprint will not include a failure caused by the
local
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exchange carrier, Customer Premise Equipment, Customer or any other
failure caused by circumstances outside the sole control of Sprint.
3.4 Governmental Programs. Sprint may adjust its rates and charges or
impose additional rates and charges on Customer in order to recover
amounts that Sprint is required by governmental or quasi-governmental
authorities to collect on behalf of or pay to others in support of
statutory or regulatory programs. Examples of such programs include,
but are not limited to, the Universal Service Fund, the Presubscribed
Interexchange Carrier Charge, and compensation to payphone service
providers for use of their payphones to access Sprint's service.
3.5 Nondisclosure-Agreement. This Agreement and any information
concerning its terms, conditions or Special Prices are confidential
and proprietary information of Sprint and are governed by the
Agreement for Use and Nondisclosure of Confidential Information,
effective DECEMBER 7, 1998, and continuing in effect for the Term.
3.6 Notices. All notices or other communication arising out of disputes
under this Agreement must be in writing and delivered to the
addresses shown below the parties' signatures at the end of this
Agreement.
4. ENTIRE AGREEMENT
This Agreement (including all referenced documents and Attachments) is the
entire understanding between Sprint and Customer relating to this
Agreement, and supersedes all proposals, agreements, understandings,
negotiations, discussions, whether oral or written, or other communication
between the parties relating to this Agreement. Customer is not relying
upon any representations or promises made by or on behalf of Sprint in
entering into this Agreement. All modifications, interlineations,
additions, supplements or other changes to this Agreement must be accepted
by both parties in writing.
To become effective, this Agreement must be signed by an authorized officer of
Customer, delivered to Sprint on or before FEBRUARY 17, 1999, and then executed
by an officer of Sprint.
WEB SIDE STORY SPRINT COMMUNICATIONS COMPANY L.P.
By: By:
/s/ BLAISE BARRELET 2/25/99 /s/ GARY NG 2/2/99
-------------------------------------- ------------------------------------
Signature and Date Signature and Date
BLAISE BARRELET, PRESIDENT GARY NG, BRANCH MANAGER
-------------------------------------- ------------------------------------
Name and Title (Typed or Printed) Name and Title (Typed or Printed)
ADDRESS FOR NOTICE ADDRESS FOR NOTICE
6450 Lusk Boulevard, Suite E204 2002 Edmund Halley Drive
San Diego, CA 92121 Reston, Virginia 20191
Attention: Reston Contracts Group
(Mail Stop: VARESC0105)
With a copy to:
Sprint Communications
8140 Ward Parkway
Kansas City, Missouri 64114
Attention Law Department/Marketing
and Sales
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ATTACHMENT A
PRICING COMPONENTS FOR DOMESTIC SPRINT IP PRODUCTS AND SERVICES
A. DESCRIPTION OF DOMESTIC SPRINT IP CHARGES
Domestic Sprint IP Products and Services consist of both Internet (public)
and Intranet (corporate LAN) network access to allow remote users to
dial-up (via local or toll-free access) for access to hosts or other
resources available on such networks. The term "Domestic" is defined as the
48 contiguous United States and the District of Columbia. The following are
the primary price components of Domestic Sprint IP Dedicated Products and
Services:
1. Dial Access Charges - There is a one-time fixed charge per remote user
for set-up of the user ID and a usage charge per remote user per hour
for either local or toll free dial access. The hourly rates generally
cover access at any time from any available city. Dial access usage
charges do not include local telephone message and toll charges.
2. Dedicated IP Port Charges - There are one-time installation charges
and a monthly recurring charges per Dedicated IP Port for: (a) local
access facilities (per Tariff 8), (b) the Port and (c) Customer
Premise Equipment (CPE) required for each Dedicated IP Port.
3. Frame Relay Gateway Charges - For Frame Relay Gateways to the Internet
or Intranet, there is a one-time charge and a monthly charge for each
Burst Express PVC.
4. User ID Charges - There is a one-time charge and a monthly charge per
user ID for assignment and administration of the customer-managed or
Sprint-managed user IDs (Fixed Address or Dynamic Address).
5. Customer Premise Equipment - Certain Customer Premise Equipment
("CPE") may be used with Sprint's IP Products and Services. Customer
may purchase or rent such CPE from Sprint pursuant to the Sprint CPE
Order form. Customer provided CPE must be certified by Sprint. There
is a one time installation charge for CPE installed by Sprint, and a
monthly recurring charge for CPE rented from Sprint.
6. Internet Service Providers (ISPs) - If Customer is or becomes an ISP
the terms and conditions of the Addendum to Sprint IP Products and
Services will apply (attached and incorporated into this Agreement as
Attachment C. Customer will be considered an ISP if Sprint determines,
at its sole discretion, that Customer is in the business of reselling
(directly or indirectly) Internet access or web hosting services.
B. DOMESTIC SPRINT IP PRODUCTS AND SERVICES SPECIAL PRICES AND TERMS
Customer will receive the following Special Prices for Domestic Sprint IP
Products and Services:
1. Customer will be charged a *** fixed monthly recurring charge for
each Domestic DS3 Sprint IP Dedicated Port with an individual Order
term of 3 years or longer installed or in service during the Term.
2. Sprint will waive *** of the Domestic DS3 Sprint IP Dedicated Port
installation (non-recurring) charges on Ports installed with an
individual Order term of three years during the
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*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
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Term. Ports receiving an Installation waiver are subject to a 36 month
continuous use requirement. If Customer disconnects any Port receiving an
installation waiver before the end of the required minimum continuous use
period, Customer must pay Sprint a prorated portion of the waived
installation charges based on the number of months remaining in the period.
3. Sprint will issue Customer a *** credit in the first billing month
following the Commencement Date, a *** credit in the eighteenth billing
month following the Commencement Date and a *** credit in the
thirty-sixth billing month following the Commencement Date.
4. If Sprint terminates this Agreement due to Customer's breach or Customer
terminates this Agreement or ceases to use Products and Services for any
reason whatsoever prior to the expiration of the Term, Customer must pay to
Sprint, in addition to all other charges, a pro-rata portion of all credits
and waivers issued based upon the number of months remaining in the Term,
and, as a result of such termination, no further credits and waivers will
be issued.
5. Orders for Domestic Sprint IP Ports will be accepted at Sprint's sole
discretion.
6. The monthly recurring and installation charges set forth in this subsection
B do not include charges for Local Access Facilities, installation or CPE.
Charges for Local Access Facilities are set forth in Sprint F.C.C. Tariff
No. 8.
7. Customer is not eligible to receive any other promotions, incentives,
discounts, waivers or credits applicable to Domestic Sprint IP Dedicated
Products and Services except as expressly set forth in the Agreement.
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*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
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ATTACHMENT B
SPRINT IP PRODUCTS AND SERVICES
TERMS AND CONDITIONS
The following terms and conditions govern Sprint's provision of Sprint IP
products and services ("Products and Services") to Customer as specified in the
Order for Data Communication Services form ("Order"). Products and Services
includes equipment, facilities, software or services provided by Sprint, but
does not include certain third party access lines which may be utilized with the
Products and Services. If Products and Services are or become subject to a
tariff filed with the Federal Communications Commission or any other regulatory
institution ("Tariff"), the terms and conditions of such Tariff, including
rates, will govern Customer's use of the Products and Services.
1. TERM
The initial term for the Products and Services ("Initial Term") will be
stated on the Order and will begin on the first day of the month following
the date the Products and Services are installed and available. Upon
expiration, the Initial Term will be automatically extended for successive
one (1) year periods, unless sixty (60) days prior to the end of the
Initial Term or each such extension, either (a) Customer or Sprint provides
written notice to the other that it does not want such extension, or (b)
Customer executes a new Order for Products and Services with a term longer
than one (1) year.
2. PRICES
A. Prices are stated on the Order. Prices (except those subject to Tariff
or Sprint's Rate Escalation Policy) and discount percentages (if
applicable) are fixed for the Initial Term. Thereafter, Sprint will
provide Customer with written notice of increased prices or reduced
discounts, sixty (60) days prior to the effective date of such changes.
In the event of such changes, Customer may terminate the Order without
termination liability by providing written notice to Sprint no later
than thirty (30) days prior to the effective date of such changes,
otherwise Customer will be billed according to the new prices and/or
discounts beginning on the effective date of such changes.
B. Notwithstanding anything contained herein, Sprint may adjust its rates
and charges or impose additional rates and charges on Customer in order
to recover amounts it is required by governmental or quasi-governmental
authorities to collect on behalf of or pay to others in support of
statutory or regulatory programs. Examples of such programs include,
but are not limited to, the Universal Service Fund, the Presubscribed
Interexchange Carrier Charge, and compensation to payphone service
providers for use of their payphones to access Sprint's service.
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3. INVOICES AND PAYMENT
The date the Products and Services are installed and available, or the
delivery date specified in the Order, whichever is later, will be the date
on which: (a) all non-recurring charges will be invoiced in full, and (b)
invoicing for all recurring charges will commence. Fixed recurring charges
for partial months will be prorated on a thirty (30) day basis. Payment in
U.S. currency will be due upon receipt of the invoice. Interest charges of
one and three-quarter percent (1-3/4%) per month or the highest rate
permitted by law, whichever is less, will accrue daily on all amounts not
paid within thirty (30) days of the date of the invoice. Customer will pay
all sales and use taxes, as well as duties or levies, on Products and
Services.
4. DELIVERY
Sprint will schedule the delivery of the Products and Services in
accordance with the mutually agreed delivery date specified in the Order.
Sprint will accommodate one Customer requested delay in the delivery date,
provided that: (a) such delay does not exceed thirty (30) calendar days
from the delivery date in the Order, (b) Sprint receives such Customer
requested delay in writing no later than ten (10) days prior to the
original delivery date, and (c) Customer agrees to pay any additional
charges resulting from such delay. If Customer delays delivery of the
Products and Services for more than thirty (30) calendar days beyond the
delivery date specified in the Order, then Sprint will invoice Customer for
all applicable charges for Products and Services effective thirty (30)
calendar days from the original agreed delivery date unless Sprint receives
Customer's written notice to cancel the affected Products and Services on
or before the date which is thirty (30) calendar days from the original
delivery date, subject to Sprint's standard cancellation charges.
5. RESPONSIBILITIES OF SPRINT
A. Sprint will provide, install, operate and maintain the Products and
Services as required in the Order. Sprint will not be responsible for
cabling that connects equipment not provided by Sprint to the Products
and Services.
B. Sprint warrants that Products and Services will be in good working
order and will in all material respects conform to the requirements of
the Order upon the date installed. Customer's sole remedy for
performance or non-performance of Products and Services in accordance
with the terms of the Order will be repair or replacement of the
Products and Services. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
C. The performance guarantees for Sprint's IP Products and Services are
as defined in Exhibit 1 (Availability) and 2 (Delay) (attached and
incorporated into this Agreement).
6. RESPONSIBILITIES OF CUSTOMER
A. Customer will: (i) at its own expense provide all necessary
preparations required to comply with Sprint's installation and
maintenance specifications, (ii) be responsible for the costs of
relocation
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of Products and Services once installed, and (iii) provide to Sprint
and to its suppliers reasonable access to Customer's premises to
perform any acts required by the Order.
B. Customer will properly use the Products and Services. Customer will be
liable for any and all damages to Products and Services located on
Customer's premises excluding reasonable wear and tear, and damages
caused by Sprint. Upon expiration or termination of the Order,
Customer will surrender to Sprint any equipment and other property
owned by Sprint and provided to Customer.
C. Customer will not nor will it permit or assist others to: (i) use
Products and Services for any purpose other than that for which they
are intended, (ii) fail to maintain a suitable environment in
accordance with the manufacturer's specifications, or (iii) alter,
tamper with, adjust or repair the Products and Services. Upon the
occurrence of any of the above, Sprint will be completely released
from any liability or obligation (including any warranty or indemnity
obligation) to Customer relative to the Products and Services; and
Customer will be liable to Sprint for costs or damages incurred by
Sprint resulting therefrom.
D. Customer will not nor will it permit or assist others to abuse or
fraudulently use Products and Services, including but not limited to
the following:
1. Obtaining or attempting to obtain service by any means or device
with intent to avoid payment; or
2. Unauthorized access, alteration, destruction, or any attempt
thereof, of any information of another Sprint customer by any means or
device; or
3. Using Products and Services so as to interfere with the use of
the Sprint network by other customers or authorized users, or in
violation of the law or in aid of any unlawful act; or
4. Using Products and Services in a manner which, in the sole
opinion of Sprint, is not in accordance with generally accepted rules
of Internet conduct as adopted and modified by Sprint.
Upon the occurrence of any of the above, Sprint may suspend its
performance and/or terminate the Order with no further obligation to
Customer.
7. ACCESS CONTROL FEATURES
Sprint offers certain Access Control Features with the Products and
Services which can assist in deterring unauthorized access to Customer's
network. Customer will be responsible for the proper use of Access Control
Features, and Sprint's sole responsibility is to provide and, at Customer's
option, maintain such Access Control Features selected by Customer in
accordance with the Order. However, such Access Control Features may not
completely eliminate unauthorized network access and the resulting charges.
Customer will be solely responsible for any unauthorized access to its
network and any charges incurred as a result thereof.
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8. HARDWARE OR SOFTWARE NOT PROVIDED BY SPRINT
A. Sprint will not be responsible for the installation, operation, or
maintenance of hardware or software not provided by Sprint; nor will
Sprint be responsible for the transmission or reception of information
by such hardware or software.
B. Customer will be responsible for the selection, use and compatibility
of hardware or software not provided by Sprint. In the event that such
hardware or software impairs Customer's use of the Products and
Services, Customer will nonetheless be liable for payment for Products
and Services. Upon notice from Sprint that the hardware or software not
provided by Sprint is causing or is likely to cause hazard,
interference, or service obstruction Customer will eliminate such
hazard, interference, or service obstruction. Sprint reserves the right
to disconnect the Products and Services until such hazard,
interference, or service obstruction is corrected. If requested by
Customer, Sprint may, at its then-current rates, troubleshoot
difficulties caused by hardware or software not provided by Sprint.
C. Sprint will not be responsible if any changes in Products and Services
cause hardware or software not provided by Sprint to become obsolete,
require modification or alteration, or otherwise affect performance of
such hardware or software.
D. If Customer provides its own router to interface with the Products and
Services, then Customer is fully responsible for the installation,
maintenance, and configuration of such Customer-provided router,
however, Sprint will have the right, in cooperation with Customer, to
set the initial configuration for the router interface into the
Products and Services.
9. PROPERTY RIGHTS AND INFORMATION PROTECTION
A. Sprint grants to Customer a non-exclusive and non-transferable license
to use software which may be provided with or included in the Products
and Services for the sole purpose of enabling Customer to use such
Products and Services.
B. Title and property rights to Sprint provided software and equipment are
and will remain with Sprint or its suppliers, whether or not embedded
in or attached to realty. Title and property rights to IP addresses
assigned to Customer by Sprint are and will remain with Sprint.
C. Customer recognizes that Products and Services provided hereunder
constitute valuable trade secrets of Sprint or its suppliers. Customer
will protect any software used by Customer which is provided with or
included in the Products and Services, and will make no attempt to
examine, copy, alter, reverse engineer, tamper with, or otherwise
misuse such software.
D. Customer is prohibited from using the Sprint trade name and any Sprint
trademark or service mark in any fashion without the prior written
consent of Sprint.
E. Information that is identified as proprietary to either party which is
delivered or disclosed to the other party will, for a period ending
three (3) years from the expiration or termination date of the Order,
(i) be held in confidence by the receiving party; (ii) be disclosed
only to those employees or authorized representatives on a need-to-know
basis, and (iii) be used only in fulfillment of the receiving party's
obligations under the Order. Neither party will be liable for the
disclosure or
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use of such data or proprietary information which: (a) is, or becomes,
publicly known, other than by breach of this Order; (b) is obtained by
the receiving party form a third party without restriction, (c) is
previously known by the receiving party; (d) is, at any time,
developed by the receiving party completely independent of any
disclosures hereunder; or (e) is required to be released by law.
10. LIMITATION OF LIABILITY
A. In no event will Sprint be liable, either in contract or in tort, for
protection from unauthorized access of Customer's transmission
facilities or Customer premise equipment; or for unauthorized access
to or alteration, theft, or destruction of Customer's data files,
programs, procedure, or information through accident, fraudulent means
or devices, or any other method.
B. Except to the extent caused by the negligence of Sprint, Sprint will
not be liable for claims or damages resulting from or caused by: (i)
Customer's fault, negligence or failure to perform Customer's
responsibilities; (ii) claims against Customer by any other party
(except for claims of copyright or patent infringement as specified
herein); (iii) any act or omission of any other party; or (iv)
equipment or services furnished by a third party.
C. For any claim arising under or related to this Order, Customer's
damages, if any, will be limited to those actually proven as directly
attributable to Sprint, subject to the following limitation: Sprint
will not be liable under any circumstances for any indirect,
incidental or consequential damages, including, but not limited to
lost profits, even if Sprint has been advised of the possibility of
such damages. Sprint's liability for damages to Customer for any cause
whatsoever, regardless of the form of action, and whether in contract
or in tort, including negligence, will be limited to the lesser of
$100,000 or the monthly charges paid for the affected Products and
Services during the preceding twelve (12) months.
11. INDEMNITIES
A. If promptly notified of any action brought against Customer based on a
claim that Sprint provided Products and Services used by Customer
infringe a United States patent or copyright, Sprint will defend such
action at its expense and will pay any and all fees, costs, or damages
that may be finally awarded in such action or resulting settlement. In
the event that a final injunction is obtained against Customer
prohibiting use of Products and Services by reason of infringement of
a United States patent or copyright, Sprint will at its option and
expense either:
1. Procure the right for Customer to continue using the Products and
Services; or
2. Procure alternative Products and Services which furnish
equivalent functionality; or
3. Direct Customer to return such Products and Services to Sprint,
and in such event, the Order relating to such returned Products
and Services will terminate.
B. Sprint will be indemnified and saved harmless by Customer from and
against all loss, liability, damage and expense, including reasonable
counsel fees, caused by:
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1. Negligent acts or omissions of officers, employees, agents, or
contractors of Customer which result in claims and demands for
damages to property or for injury or death to persons, including
payments made under any Worker's Compensation Law or under any
plan for employee's disability or death benefits;
2. Any claims arising from information, data, or messages
transmitted over the network by Customer including, but not
limited to, claims for libel, slander, invasion of privacy,
infringement of copyright, and invasion and/or alteration of
private records or data; and
3. Claims for infringement of patents arising from the use of
hardware and software not provided by Sprint in connection with
Products and Services.
12. DEFAULT/TERMINATION
A. "Default" will mean where Customer becomes subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or liquidation
proceeding; makes an assignment for the benefit of creditors; admits
in writing its inability to pay debts when due; or fails within
fourteen (14) days after written notice to remedy any breach of these
terms and conditions. Upon Default by Customer, Sprint may terminate
and retake possession of Products and Services (before, during, or
after other actions to recover sums hereunder), in which case Customer
will provide Sprint full and free access to Products and Services for
this purpose. Sprint's actions above will not waive Customer's
obligation to pay for all charges due Sprint hereunder as well as any
other damages Sprint may have sustained because of Customer's Default.
B. To terminate Products and Services, Customer must provide Sprint with
thirty (30) days prior written notice. In the event of early
termination of any Order, Customer will pay Sprint the following
"Termination Charges":
1. Business Downturn - A lump sum equal to: (i) all charges for the
Products and Services provided up to the effective date of
termination, (ii) 50% of the fixed monthly charges set forth in
the Order multiplied by the number of months remaining in the
Order term (iii) a pro-rata amount of any credits and waivers
based on the number of months remaining in the Initial Term, and
(iv) any other direct pass-through costs (e.g., local access). A
"Business Downturn" is defined as Customer's closing of a site or
elimination of IP Products and Services at a site (i.e., IP
products and services will not be provided at such site by Sprint
or any other carrier).
2. Other than a Business Downturn - A lump sum equal to 100% of the
fixed monthly charges set forth in the Order multiplied by the
number of months remaining in the Order term.
C. Customer will not be liable for the Termination Charges in this
section if another Sprint product and service of the same or greater
monthly price with a term no less than the remaining months in the
Initial Term, or 1 year, whichever is greater, is ordered at the same
time as the notice of termination is received or the termination is
due to a material failure of Sprint. Customer agrees to provide prompt
written notice to Sprint of any material failure by Sprint to provide
Products and Services. If Sprint fails to cure such failure within a
reasonable time, Customer may terminate the affected Products and
Services on 30 days' written notice to Sprint
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without further liability, except for Customer's obligation to pay for
all charges due Sprint for Products and Services provided through the
date of such termination. A material failure by Sprint shall not
include a failure caused by the local exchange carrier, Customer
premise equipment, Customer nor any other failure caused by
circumstances not within the sole control of Sprint.
13. GENERAL
A. Customer will not assign or transfer the Order without the prior
written consent of Sprint. Sprint may, however, assign the Order to
its parent company or an affiliate with thirty (30) days notice.
B. Sprint will not be responsible for performance of its obligations
hereunder where delayed or hindered by war, riots, embargoes,
strikes, (whether of Sprint or others), casualties, accidents, or
other occurrences beyond Sprint's control. Sprint will notify Customer
in the event of any of the foregoing occurrences. Should such
occurrence continue for more than sixty (60) days, Sprint or Customer
may cancel the affected Products and Services with no further
liability.
C. The provision of Products and Services hereunder is subject to
Sprint's continuing approval of Customer's credit-worthiness. Customer
will furnish financial information as Sprint may from time to time
reasonably request to determine Customer's credit-worthiness.
D. Any disputes or claims arising out of or related to the Order will be
brought within one (1) year of the occurrence.
E. These terms and conditions may not be modified except by written
amendment by the parties. No agent, employee, or representative of
Sprint or Customer has authority to bind the parties to any
representation or warranty unless such is specifically included in
these terms and conditions, the Order, or written amendments thereto.
F. Notice to the parties of disputes arising under the Order will be sent
by registered mail to the parties to the address shown on the most
recent Order. All other notices may be sent by regular mail.
G. The parties will attempt to resolve all disputes arising out of or
related to this Order through good faith negotiations. In the event
that the parties cannot reach an agreement, any dispute arising out of
or relating to this Order will be finally settled by arbitration in
accordance with the rules of the American Arbitration Association. The
arbitration will be governed by the United States Arbitration Act, 9
U.S.C. Sec. 1, et. seq., and judgment upon the award rendered by the
arbitrator(s) may be entered by any court with jurisdiction. The
arbitration will be held in the Kansas City, MO metropolitan area.
H. The Order, including these terms and conditions, will be construed and
enforced in accordance with, and the validity and performance hereof
will be governed by, the laws of the state of Kansas.
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I. The Order consists only of the document upon which the parties have
affixed their signatures, these terms and conditions and those
documents specifically incorporated herein by reference. The Order as
so constituted is the entire agreement between the parties with
respect to the subject matter hereof. No modification, alteration or
waiver of any provision hereof will be binding upon the parties unless
evidenced in writing and signed by both parties.
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ORIGINAL
ATTACHMENT C
ADDENDUM TO
SPRINT IP PRODUCTS AND SERVICES
TERMS AND CONDITIONS
ADDITIONAL TERMS AND CONDITIONS FOR
INTERNET SERVICE PROVIDERS
In addition to the Sprint IP Products and Services Terms and Conditions, the
following terms and conditions will govern Sprint's provision of such Products
and Services to an Internet service provider ("Service Provider"). Customer
will be considered a Service Provider if Sprint determines that Customer's
primary business is to resell Internet access, including the sale of dedicated
Internet connections or SLIP/PPP dial-up connections to others, as these require
that an IP network, subnet, or host number be assigned to the end-user. As a
Service Provider, Customer will be Internet-knowledgeable and capable of
independently configuring TCP/IP communications, applications, and routing
software in their local network environments.
1. Connection Equipment -- The equipment required for connection to the
Products and Services consists of the following: IP Router, Channel Service
Unit (CSU), Data Service Unit (DSU) or DS3-DSU, and a Inverse Multiplexer.
Specific requirements regarding connection equipment for Service Providers
are listed below.
a. Service Provider will provide its own IP Router.
b. Service Provider will install, maintain, configure, and manage the IP
Router hardware and software.
c. Service Provider will configure its local network environment and
applications. This includes, but may not be limited to, installation
and configuration of Internet servers for Mail, News, and the Domain
Name System (DNS).
d. At the option of Service Provider, either Sprint or Service Provider
will provide the CSU/DSU or DS3-DSU. Sprint will always provide the
Inverse Multiplexer.
e. If Sprint provides the CSU/DSU, then the service demarcation point
will be such CSU/DSU. If Service Provider provides the CSU/DSU, then
the service demarcation point is the LEC provided Smartjack or
equivalent at the Service Provider's location.
f. Sprint will maintain the Products and Services pursuant to the Sprint
IP Terms and Conditions, however Service Provider will be responsible
for resolving problems which are isolated to the IP Router, CSU/DSU
(if provided by Service Provider) or its local network environment and
applications.
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2. Routing Configurations -- The routing configuration supported by the
Products and Services differs based on whether Service Provider's network
is single-homed (e.g. only one connection to the Products and Services) or
multi-homed (e.g. more than one connection to the Products and Services, or
one connection to the Products and Services and an alternate connection to
another entity providing access to the Internet).
a. If Service Provider's network is single-homed, then Sprint will
configure a fixed list of static routes during service implementation
to support routing of Service Provider's network number(s). Service
Provider will configure the proper static routes on the IP Router for
connection to the Products and Services. Additionally, Service
Provider will configure the routing within its local network
environment.
b. If Service Provider's network is multi-homed, then Sprint will
configure dynamic routing during service implementation to support
routing of Service Provider's network number(s). This requires that
Service Provider have an Internet Autonomous System (AS) number (see
Section 3 below entitled "Internet Registration" for additional
information regarding AS numbers). Sprint will use Border Gateway
Protocol Version 4 ("BGP-4") dynamic routing protocol for multi-homed
configurations. Service Provider will configure BGP-4 on the IP Router
for connection to the Products and Services. Service Provider will
configure the routing within its local network environment.
NOTE: Sprint reserves the right to configure dynamic routing for
single-homed configurations when routing changes are requested on a regular
or frequent basis.
3. Internet Registrations - There are several registrations required for an
Internet connection. These include an Internet Network Number, an Internet
Domain Name, and if applicable an Autonomous System (AS) number (i.e.
required for multi-homed environments only). Sprint will perform these
Internet registrations on behalf of a Service Provider as specified below:
a. Internet Network Number (e.g. IP Addresses) Registration - Sprint will
assign Service Provider one or more Class C Internet Network Numbers
during implementation of the Products and Services. When more than one
Class C Internet Network Number is required, Sprint will assign a
block of contiguous Class C Internet Network Numbers, subject to
Sprint's then current address assignment policies.
b. Domain Name Registration - Sprint will register a domain name for
Service Provider during implementation of the Products and Services.
Service Provider will provide Sprint with the domain name they wish to
have registered at the time the Products and Services are ordered.
Service Provider will be fully responsible for the registration of
domain names for its customers.
c. Autonomous System Number Registration - If Service Provider's network
environment is multi-homed, Sprint will, during implementation of the
Products and Services, obtain an Autonomous System (AS) number on
behalf of Service Provider unless Service Provider already has such an
AS number.
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Agreement No. BSG9811-261
4. Domain Name Service (DNS) - Each user of Sprint IP Products and Services
which registers an Internet domain name must provide at least two name
servers for the domain: a primary DNS, and a secondary DNS for backup
purposes. Requirements regarding DNS for Service Provider are listed below:
a. Service Provider will provide primary DNS for their own domain, and
primary DNS for each of its customers' domains (if required).
b. Sprint will provide secondary DNS for Service Provider's domain only.
c. Service Provider will provide secondary DNS for each of its customers'
domains.
5. Trouble Reporting and Problem Resolution - Once the Products and Services
have been implemented, Service Provider will follow standard Sprint trouble
reporting procedures. Sprint's Service Management Center (SMC is Service
Provider's single point of contact for resolving troubles with the Products
and Services once initial implementation has been completed. Sprint's SMC
is available twenty-four hours per day, seven days per week. Specific
restrictions regarding SMC support for Service Providers are listed below:
a. Service Provider will resolve troubles within its local network and
application environment. Service Provider will be responsible for all
trouble resolution services to its own customers.
b. Sprint SMC will only accept trouble calls from Service Provider. The
SMC has no responsibility towards Service Provider's customers, and
will not accept calls from Service Provider's customers. When Service
Provider places a trouble call to the SMC, the following information
will be provided:
Name and Telephone Number of Service Provider
Name and Telephone Number of Service Provider's affected customer
Hours of Availability
Name of person with the authority to close trouble ticket
Network Address of IP Router experiencing trouble
IP Address of IP Router experiencing trouble
Description of trouble
6. Other Terms and Conditions
a. This Order does not constitute or create a joint venture, pooling
arrangement, partnership, agency or formal business organization of
any kind. Sprint and Service Provider will be
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Agreement No. BSG9811-261
independent contractors with each other for all purposes at all times
and neither party will act as or hold itself out as agent for the
other or create or attempt to create liabilities for the other party.
b. This Order is made solely for the benefit of the parties hereto and,
except for permitted successors and assigns, confers no rights,
duties, powers or privileges to any party who is not signatory hereto.
c. All customers of Service Provider will look solely to Service Provider
for its remedies under its agreement with Service Provider. Such
customers are not a third party beneficiary under any agreement
between Sprint and Service Provider.
d. Notwithstanding Sprint's provision of Products and Services to Service
Provider for use by its customers, Service Provider will remain liable
for its customer's compliance with the terms and conditions of this
Order. Failure of a Service Provider customer to comply with the terms
and conditions of the Order will be deemed to be a breach of this
Order by Service Provider.
e. Failure of Service Provider to comply with any of the terms of this
Section will be deemed a material breach of the Order.
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ATTACHMENT D
DOMESTIC SPRINT INTERNET AND INTRANET ("IP"') PRODUCTS AND SERVICES
PORT AVAILABILITY SERVICE LEVEL AGREEMENT ("SLA")
PERFORMANCE GUARANTEE
This performance guarantee measures the percentage of time a Port is available
for Customer's use.
1. COMMITTED PORT AVAILABILITY.
Sprint will maintain the following monthly Port availability, as
applicable, or Sprint will provide Customer the remedies described in
Section 3.
(A) END-TO-END PORT AVAILABILITY.
(1) Sprint-Provided Enhanced Metropolitan-Area SONET Access. Sprint
will maintain 100% end-to-end Port availability ("Committed Port
Availability") for each Port that utilizes Sprint-provided
enhanced metropolitan-area SONET access.
(2) Sprint-Provided Non-Enhanced Metropolitan-Area SONET Access or
Dedicated Local Access. Sprint will maintain 99.90% or greater
end-to-end Port availability ("Committed Port Availability") for
each Port that utilizes Sprint-provided non-enhanced
metropolitan-area SONET access or dedicated local access.
(B) POP-TO-POP PORT AVAILABILITY
Sprint will maintain 100% percent POP-to-POP Port Availability
("Committed Port Availability") for each Port that utilizes
Customer-provided local access.
2. PORT AVAILABILITY CALCULATION
2.1 Calculation. Port availability is calculated monthly as follows:
(24 Hours x Days in Month ) - Port Outage Time (hours) Port
------------------------------------------------------ = Availability
(24 Hours x Days in Month)
2.2 Components Included in Port Availability. Port availability is
calculated based on the performance of:
(A) all IP Network components; and
(B) Sprint-provided local access facilities used to access the IP
Network.
2.3 Outage Time. Excluding outages caused by the factors listed below,
outage time ("Outage Time") is the total time in a month that a
Customer's Port is unable to transmit or receive High Level Data Link
Control ("HDLC") traffic. Outage Time is measured from the time Sprint
opens a
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trouble ticket to the time a problem is repaired. Outage Time does
not include outages of less than 60 seconds duration, or time
attributed to Customer's delay in responding to Sprint's requests for
assistance to repair an outage. Outage Time will not include outages
caused by:
(A) failure of any component not included in subsection 2.2 above;
(B) failure of Customer-provided local access facilities used to
access the Sprint IP Network;
(C) scheduled maintenance from 12:00 A.M. - 6:00 A.M., Local time at
site, Mondays for Internet, Wednesdays for Intranet. Refer to
http://www.sprintlink.net for current schedule;
(D) failure of any components beyond the 1P side of a
network-to-network interface ("NNI");
(E) failure of any components on the Frame Relay side of an IP-Frame
Relay Gateway Service or the ATM side of an IP-ATM Gateway
Service;
(F) failure of any components that Sprint cannot correct because
Customer is inaccessible;
(G) troubles resolved as "No Trouble Found";
(H) force majeure events;
(I) Customer's negligence or willful misconduct or the negligence or
willful misconduct of others authorized by Customer to use the IP
Products and Services; or
(J) lateral Exchange Network Service.
3. PORT AVAILABILITY REMEDY
If Customer believes that Sprint has failed to meet its Committed Port
Availability, Customer must contact its Sprint Account Manager. Upon
Sprint's verification that the actual Port availability is below the
Committed Port Availability, Sprint will issue a service credit ("Service
Credit") to Customer. The Service Credit will equal the applicable
percentage from the table below multiplied by the monthly recurring charges
for the affected Port in the applicable month. Monthly Service Credits will
not exceed the limits in Section 4.
<TABLE>
<CAPTION>
Total Monthly Outage Time Service Credit Percentage
<S> <C>
Less than or equal to 1 hour 5%
Greater than one hour 10%
</TABLE>
4. MAXIMUM SERVICE CREDITS.
4.1 Monthly Service Credit. Service Credits issued in any month for a Port
under this or any other IP performance guarantee under this Agreement
will not exceed 10% of the monthly recurring charges for the affected
Port.
4.2 Yearly Service Credit. Service Credits issued during a Contract Year
under this or any other performance guarantee under this Agreement
will not exceed 20% of Customer's total IP Products and Services
invoiced during the Contract Year.
5. APPLICABILITY
This performance guarantee applies to new IP Customers on or after
10/23/98, or existing IP Customers that extend the Term of their existing
IP Agreement.
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ATTACHMENT E
DOMESTIC SPRINT INTERNET AND INTRANET ("IP") PRODUCTS AND SERVICES
NETWORK DELAY SERVICE LEVEL AGREEMENT ("SLA")
PERFORMANCE GUARANTEE
This performance guarantee measures the time it takes for data to cross the IP
Network.
1. COMMITTED NETWORK DELAY.
1.1 Sprint's Commitment. Sprint will maintain the following average
one-way POP-to-POP network delay ("Committed Network Delay") for its
IP Networks, or Sprint will provide Customer the remedies described in
Section 3.
<TABLE>
<S> <C>
Committed Internet Network Delay Committed Intranet Network Delay
Less than or equal to 75 milliseconds (ms) Less than or equal to 60 milliseconds (ms)
</TABLE>
1.2 Customer Requirements. Both end-point Sprint Access Nodes must be
located within the 48 contiguous United States or the District of
Columbia.
2. AVERAGE NETWORK DELAY CALCULATION.
Average Network Delay is calculated by using Sprint-initiated PING Tests,
as follows:
2.1 Calculations.
2.1.1 Calculation for Dial IP Delay. POP-to-POP one-way delay is
the time it takes for a Sprint generated PING to go from a
Sprint Rotary to a Sprint PING server at the Sprint Access
Node to which Customer's IP site is connected. The
performance guarantee is based on the monthly average delay
response times for the Sprint-initiated PING Tests at 10
Customer-selected Dial Access Sites. The calculation is as
follows:
Sum of One-way Delays (Internet or Intranet Networks)
for 10 Customer Selected Rotaries Average
------------------------------------------------------ = Network
10 Delay
2.1.2 Calculation for Dedicated Internet Network Delay. POP-to-POP
one-way delay is the time it takes for a Sprint-generated
PING to go one-way between two Sprint Access Nodes to which
Customer's IP sites are connected. The calculation is based
on the monthly average delay response time for the
Sprint-initiated PING Tests.
2.2 Definitions. The following definitions are used in this SLA:
(A) Rotary - means the NPA-NYX-XXXX number dialed by Customer modems
to access Sprint's IP Networks.
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(B) Sprint Access Node - means Sprint-owned facilities connected by
SONET long-distance fiber lines that collectively form Sprint's
IP Networks.
2.3 PING Test Parameters. The PING Test parameters are:
(A) the PING type is IP ICMP;
(B) the PING size is 64 bytes;
(C) the number of PINGs is 5 PINGs every hour for an entire calendar
month; and
(D) PING time-outs shall equal 1 second (1000 milliseconds).
2.4 Components Included in Average Network Delay. Subject to the
exceptions listed in subsection 2.5, Average Network Delay is
calculated based on the performance of:
(A) all IP Networks Components; and
(B) rotaries.
2.5 Components Excluded From Average Network Delay. Average Network Delay
does not include delays caused by:
(A) any components not included in subsection 2.4 above;
(B) failure of any components beyond the IP side of a
network-to-network interface (NNI);
(C) failure of any components on the Frame Relay side of an IP-Frame
Relay Gateway Service or the ATM side of an IP-ATM Gateway
Service;
(D) Customer's negligence or willful misconduct or the negligence or
willful misconduct of others authorized by Customer to use the IP
Products and Services;
(E) force majeure events;
(F) scheduled maintenance from 12:00 A.M. - 6:00 A.M., Local time at
site, Mondays for Internet, Wednesdays for Intranet. Refer to
http://www.sprintlink.net for current schedule;
(G) Sprint-operated modems and Sprint Domain Name Servers ("DNS"); or
(H) any components operated by an Internet Service Provider or a
network operator other than Sprint.
3. AVERAGE NETWORK DELAY REMEDY
If Customer believes that Sprint has failed to meet its Committed Network
Delay, Customer must contact its Sprint Account Manager. Upon Sprint's
verification that the actual average network delay in a month is greater
than the Committed Network Delay, Sprint will issue a service credit
("Service Credit") to Customer. The Service Credit will equal 10% of the
monthly recurring charge for the affected IP Port in the applicable month,
not to exceed the limits in Section 4.
4. MAXIMUM SERVICE CREDITS
4.1 Monthly Service Credit. Service Credits issued in any month for a
particular Port under this or any other IP performance guarantee under
this Agreement will not exceed 10% of the monthly recurring charges
for the affected Port.
4.2 Yearly Service Credit. Service Credits issued during a Contract Year
under this or any other performance guarantee under this Agreement
will not exceed 20% of Customer's total IP Products and Services
invoiced during the Contract Year.
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5. APPLICABILITY
This performance guarantee applies to new IP Customers on or after
10/23/98, or existing IP Customers that extend the Term of their existing
Agreement.
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