applications are driving increasingly complex networking requirements.
2. Effective Date and Term
Unless otherwise terminated in accordance with this Agreement, (i) the initial term of this Agreement shall begin on the date first set forth above (“Effective Date”) and end 12 months from the Effective Date, and (ii) the term of this Agreement and CSOs for installed Services under this Agreement shall thereafter automatically renew for successive one-year periods unless either party gives written notice to the other party of non-renewal at least 60 days but not more than 90 days before the end of the applicable term.
If notice of termination of this Agreement is timely provided, but there are outstanding CSOs at the time this Agreement would terminate, this Agreement shall remain in effect solely to govern such CSOs until expiration of all CSOs (in accordance with their terms) and then shall automatically terminate.
3. General Payment Terms
All Monthly Recurring Charges (as specified on the outstanding CSOs) are due and payable in advance of the month immediately preceding the month for which the Services are to be provided and will commence in accordance with the attached Process and Installation terms. EIGHTY8NETWORKS will issue invoices for such amounts as of the first day of each month that will be due and payable on the 15th of the month (“Due Date”).
4. Burst Usage Payment Terms
EIGHTY8NETWORKS will measure Customer’ bandwidth usage in five-minute intervals for each point of connection between Customer and EIGHTY8NETWORKS (or its up-stream provider) in two categories: incoming and outgoing. At the end of each billing cycle, all data samples in each category will be sorted from highest to lowest, and the top 5% of measurements will be discarded. The highest remaining data sample in the higher of the two categories will then constitute the bandwidth usage level for that billing cycle. Burst usage is the amount of bandwidth usage for the billing cycle exceeding Customer’s Minimum Committed Data Amount (as specified on the applicable CSO). Monthly burst usage charges shall be invoiced monthly in arrears and shall be due and payable on the Monthly Recurring Charges Due Date next following the date on which the invoice is received (“Due Date” for burst usage charges).
5. Interest; Billing Disputes
Any undisputed amounts not paid in full by the applicable Due Date pursuant to the terms of this Agreement shall bear interest from such Due Date until paid in full at the rate per annum equal to the Prime Rate plus two percent, where Prime Rate means the rate of interest published by The Wall Street Journal as the prime rate in the column entitled “Money Rates,” such rate to change automatically effective with each change in such prime rate. Invoices to Customer shall be deemed correct, and the right to the invoice will be waived unless Customer sends the dispute to billing@Eighty8networks.com within 30 days of the invoice date.
6. Service Level Agreement
EIGHTY8NETWORKS’s applicable service level agreement will be attached to the CSO.
7. Default and Termination and Disconnects
8. Taxes and Fees
All charges for Service are exclusive of Applicable Taxes (as defined below). Except for taxes based on EIGHTY8NETWORKS’s net income, Customer is responsible for all applicable taxes, fees, surcharges, or other charges or impositions that arise in any jurisdiction, including, without limitation, value-added, consumption, sales, use, gross receipts, excise, access, regulatory, bypass, franchise or other taxes, fees, duties, charges or surcharges, however, designated, imposed on, incident to, or based upon the provision, sale or use of the Service or equipment (collectively “Applicable Taxes”). Customer shall pay such Applicable Taxes and indemnify EIGHTY8NETWORKS from any liability or expense incurred by EIGHTY8NETWORKS in connection with such Applicable Taxes. If Customer claims an exemption from an Applicable Tax for a particular Service, Customer must provide EIGHTY8NETWORKS with a valid exemption certificate in a form reasonably acceptable to EIGHTY8NETWORKS. EIGHTY8NETWORKS will give effect to any such exemption certificate on a prospective basis from and after EIGHTY8NETWORKS’s receipt of such exemption certificate. If Customer fails to provide EIGHTY8NETWORKS with accurate information regarding the jurisdiction of traffic carried over any Service designated as intrastate, Customer agrees that it may be liable to EIGHTY8NETWORKS for any surcharges or other fees attributable to such failure, notwithstanding any back-billing restrictions that may otherwise apply.
9. Regulatory and Legal Changes
In the event of any change in applicable law, regulation, decision, rule, or order that materially increases the costs or other terms of delivery of Service, EIGHTY8NETWORKS and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within 30 days after EIGHTY8NETWORKS’s delivery of written notice requesting renegotiation, then (a) EIGHTY8NETWORKS may pass such increased costs through to Customer, and (b) if EIGHTY8NETWORKS elects to pass such increased costs through
to Customer, Customer may terminate the affected Service without termination liability by delivering written notice of termination no later than 30 days after the effective date of the rate increase.
10. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, EIGHTY8NETWORKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF ERROR-FREE, UNINTERRUPTED, OR COMPLETELY SECURE USE OR NON-INFRINGEMENT. ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED AND PERFORMED ON AN “AS-IS, “ “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF SERVICES IS SOLELY AT ITS OWN RISK.
11. LIMITATION OF LIABILITIES
IN NO EVENT SHALL EITHER PARTY OR ITS PRINCIPALS, SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AFFILIATES, CONTRACTORS, SUBCONTRACTORS, OTHER AGENTS, SUBSIDIARIES, OR PARENT ORGANIZATIONS (THE PARTY’S “GROUP”) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER SIMILAR DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
EIGHTY8NETWORKS shall not be responsible for any liabilities caused by (i) any acts of negligence by Customer, any member of Customer’s Group or any other third party; (ii) any act by Customer or any member of Customer’s Group in violation of Customer’s obligations under this Agreement; (iii) any use of the Services by Customer or any member of Customer’s Group for which it is not designed or intended; (iv) any modification, addition or alteration to the Services; and (v) any casualty event out of the control of EIGHTY8NETWORKS. In no event shall EIGHTY8NETWORKS be liable to Customer, any member of Customer’s Group, or any other third party for any damages for any cause whatsoever, and regardless of form of action, for any amount which when taken in aggregate with all amounts owed or paid by EIGHTY8NETWORKS to Customer or a member of Customer’s Group exceeds the highest aggregate amount paid by Customer to EIGHTY8NETWORKS pursuant to this Agreement over the course of the most recently completed calendar year or, if the Agreement has been in place for less than a full calendar year, over the term of the Agreement.
12. Compliance with Law
Use of the Services by Customer or any person accessing Services provided Customer must be in accordance, and comply, with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents, and authorizations necessary or advisable to conduct its business and initiate or conduct any transmissions over any facilities covered by this Agreement.
14. Resale of Services
Customer may resell lit Services and may sublease or sublicense to its end users Dark Fiber leased under a CSO for a term not longer than the term of Customer’s Dark Fiber lease from EIGHTY8NETWORKS, so long as Customer does not purport to sell or grant indefeasible or other similar rights of use in all or any part of the Dark Fiber granting greater rights than those granted by EIGHTY8NETWORKS to Customer in such Dark Fiber, and for lit Services and Dark Fiber, the service agreement with the end-user permits EIGHTY8NETWORKS to assume the rights and obligations of the provider in the case of a provider default.
15. Force Majeure
EIGHTY8NETWORKS may adjust or suspend its performance to the extent performance is beyond EIGHTY8NETWORKS’s reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric conditions such as rain fade, cable cut, governmental action, technological impracticability, national emergencies, war, riot, insurrection, terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts.
If EIGHTY8NETWORKS provides equipment in connection with the provision of lit Services, or if EIGHTY8NETWORKS provides Dark Fiber:
18. Regulatory Matters
Customer acknowledges that the Services will be subject to the laws and regulations of multiple jurisdictions. EIGHTY8NETWORKS may cancel or suspend any Service, without liability, immediately with notice to Customer if provision of that Service, or any portion thereof, is determined to be a violation of any applicable law, rule, or regulation.
19. Relationship of Parties
EIGHTY8NETWORKS and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between EIGHTY8NETWORKS and Customer. Neither EIGHTY8NETWORKS nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Neither EIGHTY8NETWORKS nor Customer grants the other the right to use its trademarks, service marks, trade names, logos, copyrights or other intellectual property rights or other designations in any promotion, publication or press release without the prior written consent of the other party in each case.
20. Choice of Law/Venue
Any disputes concerning this Agreement shall be governed by and determined under New Jersey, without regard to conflicts of law principles. Any litigation must be brought in the United States District court for the District of New Jersey or the New Jersey Superior Court for Bergen County, New Jersey, as appropriate. Each party consents to personal and subject matter jurisdiction and venue in such courts and waives the right to change venue.
(a) Customer shall not assign or otherwise transfer its rights or obligations under this Agreement or any CSO without the prior written consent of EIGHTY8NETWORKS which consent shall not be unreasonably withheld; (b) To the extent otherwise permissible, EIGHTY8NETWORKS shall provide Customer the option of assignment of this Agreement directly to the upstream carrier in the event that EIGHTY8NETWORKS is unable to continue managing the Services; (c) This Agreement will be binding upon and inure to the benefit of all successors and permitted assigns of the parties, who will be bound by all of the obligations of their predecessors or assignors; (d) EIGHTY8NETWORKS will retain title to all parts and materials used or provided by EIGHTY8NETWORKS or third parties acting on its behalf in the performance and/or furnishing of the Services; (e) No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement; (f) The provisions of this Agreement are for the benefit only of the parties hereto, and no third party may seek to enforce or benefit from these provisions; (g) If any term or provision of this Agreement shall be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then: (1) this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent; and (2) the remainder of this Agreement shall be valid and enforceable; (h) The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision; (i) Sections 5, 7, 8, 10, 11, 13, 16, 17, 18, 19 and 20 shall survive any termination of this Agreement; (j) This Agreement, attached schedules, annexes, riders, and all CSOs entered into under this Agreement constitute the complete and exclusive statement of the understanding between the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to the content of this Agreement and the provision of the Services; (k) ) Except where otherwise expressly stated in this Agreement, and subject to the
limitations set forth in Section 10, the rights and remedies provided for herein are cumulative and not exclusive of any rights or remedies that a party would otherwise have; (l) Captions and paragraph headings are used merely for reference purposes and do not affect and shall not be interpretative of the context in any manner; (m) This Agreement may be signed in counterparts, each of which when executed, shall be deemed an original, and all such counterparts shall constitute one and the same instrument.
23. Intrastate Circuits
Customer acknowledges and agrees that no intrastate circuit provided hereunder may (a) be extended by Customer to an out of state location or (b) used to transmit or otherwise carry more than 10% Interstate Traffic. “Interstate Traffic” includes (i) Internet traffic,
(ii) interstate switched access, and/or (iii) data or switched voice traffic that originates and terminates in different states.
The parties must submit any notice, demand, consent or other communication required or provided under this Agreement in writing and addressed or delivered to the attention of the representatives specified below its signature, except that in the case of EIGHTY8NETWORKS, the notice must specify “Attention Legal.” Notices will be deemed received: (i) upon delivery when personally delivered; (ii) at the time indicated on the return receipt, when sent via registered or certified mail; (iii) on the date that the party or its representative signs for the package when sent via overnight courier.
25. Remote Hands Services and Testing
EIGHTY8NETWORKS can provide additional installation and technical services, herein referred to as “Remote Hands,” to Customer. Remote Hands services include but are not limited to onsite installation and technical support as well as additional provisioning and engineering services as needed. EIGHTY8NETWORKS will inform Customer if Remote Hands services are required, and Customer must agree in writing or email to the charges. EIGHTY8NETWORKS will invoice the Customer at a rate $200 per hour for Remote Hands services.
EIGHTY8NETWORKS will provide standard RFC 2544 testing on all On Net to On Net Metro Ethernet circuits. Standard testing includes throughput, latency, jitter, back-to-back, and frame loss testing. Any additional testing that Customer requires will be charged at $200 per hour. Additional testing must be scheduled with the EIGHTY8NETWORKS engineering or provisioning group and requires a minimum of 48 hours’ notice.
Abbreviations and Definitions
CAS: Circuit Activation Summary
Start of service notification document issued by EIGHTY8NETWORKS to Customer indicating installation is complete. A CAS is also issued upon a CNR designation.
CNR: Customer Not Ready
Status designation indicating a failure by Customer to complete a required step in the installation procedure.
DLR: Design Layout Record
Document issued by local access and/or IXC provider indicating facilities used in local access design.
LOA/CFA: Letter of Authorization/Carrier Facility Assignment
Document issued by EIGHTY8NETWORKS (or a third party) to Customer authorizing Customer to order cross-connect with specific vendor and also containing specific assignment on EIGHTY8NETWORKS controlled facilities.
MRC: Monthly Recurring Charge
Amount to be paid on a per month basis to EIGHTY8NETWORKS by Customer for Services. MRC billing will commence as of the date of installation completion as described below or CNR designation, as the case may be.
OCL: Order Confirmation Letter
Document issued by EIGHTY8NETWORKS to Customer confirming receipt of order and containing EIGHTY8NETWORKS order number and other pertinent circuit information.
EIGHTY8NETWORKS installation coordinator who facilitates installation between Customer and carrier.
Document setting forth technical specifications for installation and operation.
Order Confirmation Letter
EIGHTY8NETWORKS will issue Customer an OCL and a form of Provisioning Document upon completion of an order entry into the EIGHTY8NETWORKS ordering system. Customer must complete and return the form of Provisioning Document within 15 days of receipt of the form. If Customer fails to complete and return the Provisioning Document within the 15-day period, EIGHTY8NETWORKS will designate the order CNR and will issue a CAS to Customer. MRC billing will commence as of the date of the CNR designation. EIGHTY8NETWORKS will continue to work with Customer to complete the installation.
Intervals are dependent on the product type ordered. The EIGHTY8NETWORKS sales representative will make an effort to ensure service is ordered as ONNET with the appropriate upstream carrier based on price-points, capacity, and overall service application needs. The service implementation interval will not begin until the Provisioner receives a completed Provisioning Document, which will be sent after issuance of the OCL. If any information is missing or incorrect, the Provisioner will work with sales representative and Customer to obtain the necessary items.
The LOA/CFA will be issued once the order has been designed and is ready for cross-connect placement. Customer will be responsible for ordering cross-connects and all associated costs. Customer must order the cross-connect and provide the DLR to the Provisioner, including the cross-connect work order ID number, within 10 business days of the date the LOA/CFA is issued. If Customer fails to place the cross- connect order and provide the DLR within the 10-day period, EIGHTY8NETWORKS will designate the order CNR and issue a CAS to Customer. MRC billing will commence as of the date of the CNR designation. EIGHTY8NETWORKS will continue to work with Customer to complete the installation.
Once the pre-testing has been completed, the Provisioner will schedule a turn update with Customer and the applicable carrier. If Customer ordered third-party services, it is the responsibility of Customer to contact the Provisioner to test and turn up the service on the scheduled turn up date. All arrangements for changes regarding the installation of services must be made through the Provisioner at least two (2) business days prior to the turn up date. If circuit installation or test is requested to be performed outside of normal business hours (M-F, 8 a.m. – 6 p.m. MST), Customer must coordinate with EIGHTY8NETWORKS service delivery support or Provisioner at least 48 hours in advance.
On the scheduled turn up date, the Provisioner will contact Customer to perform end-to-end testing. Upon completion of successful testing, start of service will commence, and a CAS will be issued to Customer. MRC billing will commence as of the date of such completion.
Customer Not Ready
On the designated turn up date, the Provisioner will contact Customer to perform end-to-end testing. In the event the Provisioner is unable to reach Customer’s technician, or if Customer is not ready to test end-to-end on the designated turn up date, EIGHTY8NETWORKS will designate the order CNR and issue a CAS to Customer. MRC billing will commence as of the date of the CNR designation. EIGHTY8NETWORKS will continue to work with Customer to complete the installation.