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MCI / FiveCom - Master Services Agreement
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
MASTER SERVICES AGREEMENT
MCI TELECOMMUNICATIONS CORPORATION, INC.
FIVECOM, INC.
TABLE OF CONTENTS
I. DEFINITIONS.......................................................2
II. TERM AND TERMINATION..............................................3
III. SERVICE AVAILABILITY..............................................4
IV. PAYMENT FOR SERVICES..............................................5
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE OF
EQUIPMENT.........................................................7
VI. SERVICE SPECIFICATIONS, MAINTENANCE, REPAIR AND TESTING...........9
VII. COLLOCATION OF EQUIPMENT..........................................9
VIII. SERVICE INTERRUPTION, LIMITATIONS OF WARRANTY AND
DAMAGES..........................................................10
IX. INDEMNIFICATION..................................................12
X. DEFAULT..........................................................13
XI. INFRINGEMENT.....................................................14
XII. REQUIRED RIGHTS..................................................14
XIII. FORCE MAJEURE....................................................14
XIV. TAXES............................................................15
XV. NOTICES..........................................................15
XVI. CONFIDENTIALITY..................................................16
XVII. WAIVER...........................................................16
XVIII. GOVERNING LAW....................................................16
XIX. ASSIGNMENT.......................................................16
XX. COMMON CARRIERS..................................................17
XXI. NON-EXCLUSIVE ARRANGEMENT........................................17
XXII. INSURANCE AND LIABILITY..........................................17
XXIII. AUTHORITY........................................................18
XXIV. GENERAL PROVISIONS...............................................19
XXV. ARBITRATION......................................................19
XXVI. ENTIRE AGREEMENT.................................................19
EXHIBIT A TECHNICAL SPECIFICATIONS EXHIB
IT B SERVICE AGREEMENT EXHIBIT C SERVICE AVAILABILITY EXHIBIT D REQUIREMENTS FOR AUTOMATED INTERFACE WITH MCI EXHIBIT E PRICING EXHIBIT F DESCRIPTION OF SWITCHED SERVICES
EXHIBIT G PERFORMANCE AND MAINTENANCE EXHIBIT H PROVIDER RESPONSIBILITIES AND SYSTEM CRITERIA EXHIBIT I CONFIDENTIALITY AGREEMENT
MASTER SERVICES AGREEMENT
THIS
AGREEMENT is made and entered into as of the 1st day of January, 1994, by and between MCI Telecommunications Corporation, a Delaware corporation, having an office at 1133 Nineteenth Street, N.W., Washington, D.C. 20036 (hereinafter referred to as "MCI"),
and FiveCom, Inc., a Massachusetts corporation, having an office at 393 Totten Pond Road, Suite 201, Waltham, MA 02154 (hereinafter referred to as "Provider").
WHEREAS, Provider and MCI wish to set forth a standard set of general terms and condi
tions which will facilitate MCI's ability to obtain private line and/or switched access services ("Services") in various metropolitan areas. The Services will be offered in each metropolitan area by an entity which is either an affiliate or subsidiary of
P
rovider and/or which Provider manages or is otherwise contractually affiliated with ("Authorized Entity"). Provider will notify Customer from time to time of the identity of each such entity for which such terms and conditions are applicable and of the ap
propriate procedure for placing orders.
WHEREAS, Provider and MCI have entered into this Agreement for the purpose of setting forth those terms and conditions under which Provider will furnish MCI with requested Services; and
WHEREAS, Pr
ovider and MCI also agree that they will enter into separate capacity agreements (hereinafter referred to collectively or singly as the "Service Agreement") for each MCI circuit requirement not otherwise available to MCI under the procedures set forth in
this Agreement which Service Agreement shall incorporate the terms, conditions and covenants of this Agreement and shall also set forth the terms and provisions unique to each such circuit requirement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and in consideration of the covenants and agreements contained in any Service Agreement, the parties hereto hereby agree as follows:
This Agreement supersedes all existing Agreements between Provider and MCI pursuant to which MCI purchases telecommunications access services, in their entirety, with the exception of the Agreement listed below:
1. Fiber Use Agreement between FiveCom Associates and MCI Telecommunications, dated June 1, 1993.
I. DEFINITIONS
1.1 "Capacity" shall mean dedicated telecommunications Circuits (as hereinafter defined) that Provider furnishes to MCI under the terms of this Agreement.
1.2 "Circuit" shall mean any individual DS-O, DS-1 or DS-3 or other data transmission service Provider furnishes to MCI.
1.3 "Collocation" or "collocate" shall mean Provider's right to place equipment in MCI locations solely for the purpose of providing the Services o
rdered by MCI, or approved by MCI, to MCI's telecommunications network pursuant to this Agreement or the Service Agreement.
1.4 "Confidential Information" shall mean any materials defined as confidential or proprietary in any Confidentia
lity Agreement entered into between the parties, and: a) all requests for service quotations and Services and the contents thereof, including, but not limited to, the identity and location of MCI's Customers (as hereinafter defined); b) all responses to r
equests for quotations and Services, and the contents thereof, which Provider submits to MCI; and c) all proprietary information one party provides to the other.
1.5 "Customer" shall mean any corporation, company, entity or person to which MCI furnishes Services or service, either under tariff or contractual arrangement.
1.6 "Demarcation Point" shall mean the interface between the Network (as hereinafter defined) and MCI's telecommunications equipment, the interface betw
een the Network and the local exchange carriers' network, as well as the interface between the Network and a Customer's telecommunications equipment. Provider shall be responsible for all equipment required for provision of service between the Network and
a Customer's telecommunications equipment.
1.7 "Interconnection Facilities" shall mean all local access facilities at a Demarcation Point(s).
1.8 "LEC" shall mean any company responsible for the provisioning of local a
ccess lines owned and operated by a Regional Bell Operating Company or an independent telephone company which has historically held the rights to provide such services in their franchised territory.
1.9 "MCI" shall mean MCI Telecommunications Corporation, MCI Communications Corporation, and all subsidiaries, affiliates, successors and assigns.
1.10 "Network" shall mean any telecommunications links utilized by or necessary to Provider in order to furnish the Services.
1.11 "Provider" shall mean FiveCom, Inc., and all subsidiaries, affiliates, successors and assigns.
1.12 "SECABS" shall mean Small Exchange Carrier Access Billing System as defined by Bellcore Special Publication Number SROPT-001-856.
1.13 "Services" shall mean the telecommunications services provided by the Authorized Entity to MCI pursuant to this Agreement for Capacity and/or enhanced local switching.
1.14 "Switch Services" are those Provider-furnished shared, network or feature group services which access the MCI switch via shared facilities from Provider; as further defined in Exhibit F.
Unless otherwise expressly defined, all other terms used in this Agreement shall be accorded their usual and customary meanings.
II. TERM AND TERMINATION
2.1 The term o
f this Agreement shall commence as of the date hereof and shall continue either: (a) for a period of ten (10) years, or (b) until final termination of any active Service Agreement or ASR (as hereinafter defined) entered into in accordance with this Agreem
ent, whichever is later.
2.2 The initial term of each ASR or Service Agreement shall commence on the date upon which the Services described in the ASR or Service Agreement is available for use. The initial term of the ASR or Service Agree
ment shall expire at the end of the period set forth in the ASR or Service Agreement.
2.3 MCI shall have the right, in its sole discretion, to cancel any ASR or Service Agreement upon twenty-four (24) hours written notice to Provider. Un
less the ASR or Service Agreement is cancelled for Provider's breach as provided for elsewhere in this Agreement, MCI shall remain liable for any termination liabilities associated with the cancelled ASR or Service Agreement. In the event MCI exercises it
s right to cancel any ASR or Service Agreement, the terms and conditions of this Agreement shall nevertheless remain in effect until termination of the last active ASR or Service Agreement.
2.4 If at any time during the Term all or any si
gnificant portion of the fiber optic or other facilities or associated equipment used to provide the Services to MCI shall be taken for any public or quasi-public purpose by any lawful power or authority
by the exercise of the right of condemnation or eminent domain, Provider shall be entitled to elect to terminate this Agreement or the applicable portions hereof upon written notice to MCI.
2.5 Upon termination of this Agreement, all rights of MCI to the Services shall cease and Provider shall have no further obligations to MCI with respect to furnishing the Services.
III. SERVICE AVAILABILITY
3.1 Provider shall make available to MCI, in response to any electronically transmitted requests from MCI, Services as specifically provided for in any ASR or Service Agreement which may be entered into by the parties, subject to the ter
ms of this Agreement. A sample form of the Service Agreement is attached hereto as Exhibit B.
3.2 The metropolitan areas and building locations in which Provider's Network is currently able to furnish Capacity to MCI are listed in Exhibit
C attached hereto and made a part hereof. Provider shall have the right, at any time and from time to time during the term of this Agreement, to provide MCI with a revised list of metropolitan areas and building locations, in a format acceptable to MCI.
Upon receipt by MCI, any such revised list shall be automatically attached hereto as an amended Exhibit C.
3.3 To order Capacity to be furnished at a building location included in Exhibit C, MCI shall electronically submit an Access Servi
ce Request (herein referred to as "ASR") to Provider, including the requested date of service. Within five (5) business days after receipt of the ASR, Provider shall electronically issue a Firm Order Commitment (hereinafter referred to as "FOC") to MCI. M
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I shall have the right, in its sole discretion, to cancel the ASR, without incurring any termination liability, at any time prior to receiving the FOC or in the event the Capacity is not provided by the in-service date set forth in the FOC, unless the del
a
y in providing the service is directly attributable to MCI or its Customer for the requested Capacity. In the event the Capacity is not provided by the in-service date set forth in the FOC, and MCI chooses not to cancel the ASR, Provider will credit to MC
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one day of service for each day the Capacity is unavailable to MCI after the in-service date specified in the FOC. Under no circumstances shall MCI be billed for use of a circuit prior to installation. The requirements for electronically issuing an ASR a
nd an FOC are further defined in Exhibit D attached hereto and made a part hereof.
3.4 To order Capacity to be furnished at a location not included in Exhibit C, MCI shall submit an ASR to Provider, including a requested date of service.
Within five (5) business days after receipt of the ASR, if Provider will be able to furnish such Capacity, Provider shall issue an FOC to MCI, along with an estimated date on
which the Capacity can be made available to MCI. Within ten (10) business da
ys after receipt of the FOC, MCI shall have the right, in its sole discretion, to either: (a) notify Provider that the availability date is not acceptable and cancel the ASR at no cost to MCI or request Provider to submit a new FOC, or (b) notify Provider
that the availability date is acceptable. In the event MCI chooses option (a) and requests Provider to submit a new FOC, the procedures and the time periods for responses set forth in this paragraph 3.4 shall again be applicable to MCI's request. In the e
v
ent MCI chooses option (b), Provider shall immediately begin making all arrangements necessary to insure that the Capacity will be available for MCI's use by the estimated availability date. The parties shall execute a Service Agreement for the Capacity w
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thin twenty (20) days from the date Provider notifies MCI of the actual availability date for the Capacity; provided, however, that MCI shall have the right, in its sole discretion, to cancel a Service Agreement for Capacity without incurring any terminat
ion liability, in the event the Capacity is not furnished on or before the in-service date set forth in the Service Agreement.
3.5 For Switch Services, Provider shall use the facilities as described in Exhibit F for communications origina
ted at or terminated at MCI locations for the applicable telephone number groups provided by Provider. On thirty (30) days prior written notice to MCI, Provider may change, from time to time and by deletion or addition, the eligible telephone number group
s. The communications may include, without limitation, direct dialed calls, operator assisted calls, calling card calls, conference calls and 800 service.
To order entrance facilities/interconnect for Switch Services, MCI shall electronically submit an Acc
ess Service Request (herein referred to as "ASR") to Provider, including the requested date of service. Within five (5) business days after receipt of the ASR, Provider shall electronically issue a Firm Order Commitment (hereinafter referred to as "FOC")
to MCI. MCI shall have the right, in its sole discretion, to cancel the ASR, without incurring any termination liability, at any time prior to receiving the FOC.
IV. PAYMENT FOR SERVICES
4.1 The monthly recurring charges fo
r the Capacity shall be at the rates set forth in Exhibit E, attached hereto and made a part hereof, net of any discounts provided for in Exhibit E, and shall be payable by MCI within thirty (30) days after receipt of an itemized invoice therefor. The cha
r
ges for Capacity will begin to accrue on the date the Capacity is available for use. Provider will submit monthly invoices as directed by MCI, which invoice(s) will include all Capacity furnished to MCI as of the date of the invoice(s). The invoice(s) sub
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itted by Provider to MCI must be prepared utilizing the SECABS billing guidelines, and must be rendered to MCI within fifteen (15) days after the close of the billing period. Under no circumstances shall MCI be liable for any charges which are not billed
to MCI within ninety (90) days after the charges were initially incurred.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4.2 The non-recurring fee set forth in Exhibit E will be included in the first monthly invoice submitted to MCI after Provider has furnished the Services specified in the applicable FOC.
4.3 MCI shall have the right to
dispute any charges for which it is invoiced by Provider. In the event MCI disputes any such invoice or portion thereof, MCI shall promptly pay that portion of the invoice which is undisputed. MCI shall have the right to withhold payment of any disputed a
m
ount, provided that MCI gives Provider notice of the amount and reason for the dispute in accordance with the provisions of paragraph 25.1 herein. All invoicing disputes shall be resolved in accordance with the provisions of Article XXV herein. Notwithsta
nding any provisions contained in this Agreement to the contrary, MCI's failure to pay any invoice or portion thereof as a result of an unresolved dispute shall not be considered a breach of the terms and provisions of this Agreement.
4.4
For Switch Services, Provider will calculate its charges for each month at the applicable rate provided for in Exhibit E, on the basis of Provider's accurate Switched Minutes of Actual Use report produced by Automatic Machine Accounting (AMA) equipment.
F
or such calculation, Provider will calculate the time for each call, rounded up to the nearest .1 second, and such monthly total accumulation by end office shall be rounded up to the nearest minute. Provider will issue its invoice for these charges as of
the last day of each month. Provider will furnish an AMA tape with each bill to Customer.
4.5 The rates for furnishing the Capacity to MCI throughout the term of this Agreement are set forth in Exhibit E. Under no circumstances during the
term of this agreement shall the price MCI pays to Provider for Capacity be more than[**] of the tariffed prices MCI can obtain from the LEC serving the same locations as Provider (Provider mileage for individual Circuits shall conform to the mileage com
p
onent assigned to the individual Circuit by the LEC) assuming the LEC is used for all MCI access requirements (MCI LEC Price). In the event of a LEC tariff change, MCI will notify the Provider within sixty days of any such change, and Provider will modify
the applicable rates in Exhibit E within 10 days of receipt of such notice. This change will be effective on the date of the LEC tariff change.
In the event of changes in the rates in Exhibit E resulting from changes in the factors used by MCI to calculat
e the MCI LEC Price, the changes to the rates in Exhibit E will be effective on the date MCI notifies Provider of the change in calculation of the MCI LEC Price.
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Notwithstanding the provisions of the foregoing sentence, however, in the event Provider issues a revised schedule of rates resulting in a decrease in pricing, all Capacity furnished to MCI by Provide
r pursuant to this Agreement shall be subject to such decreased pricing schedule.
4.6 Under no circumstances during the term of this agreement shall the price MCI pays to Provider for Switch Services be more than [**] for Switch Services
from the LEC capable of providing Switch Services to the same location as Provider. MCI will notify the Provider of any changes to the LEC tariffed rate, and Provider will modify the applicable rates in Exhibit E within 10 days of receipt of such notice.
This change will be effective on the date of the LEC tariff change. Such changes in the rates shall be subject to the terms of this paragraph and paragraph 4.7.
4.7 Provider shall submit a quarterly report to MCI to include any relevant calculations required to prove compliance with the terms of sections 4.5 and 4.6.
4.8 [**] Notwithstanding the pricing structure set forth herein, the price available to MCI for the Services [**] in which Provider furnishes Services to MCI, as set forth in Exhibit C. In the event that [**] in which Provider furnishes
Services to MCI, [**].
If it is determined that Provider has not fully complied with the terms of this Paragraph, Provider shall 2[**].
V. AUTHORITY, REPRESENTATIONS AND PERFORMANCE
OF EQUIPMENT
5.1 Prov
ider warrants and represents that it is authorized by all applicable federal, state and local laws, regulations and ordinances to furnish the Services and hereby agrees to indemnify and hold harmless MCI and MCI's Customers from and against any and all lo
ss, liability, damage and expense (including reasonable attorneys' fees) for any demand, claim, suit or judgment against MCI and/or MCI's Customers attributable to Provider not having or losing such authorizations.
5.2 Provider represents
and warrants to MCI that it has authority to do business in the areas in which it furnishes Services to MCI as set forth in Exhibit C and the right to furnish the Services to MCI, and that it is an entity, duly organized, validly existing and in good sta
nding under the laws of the state of its origin, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms.
5.3 Provider represents and warrants to MCI that the Services furni
shed under the terms of this Agreement and any Service Agreement shall be designed, produced, installed, provided and maintained in conformance and compliance with applicable federal, state and local laws, administrative and regulatory requirements and an
y other authorities having jurisdiction over the subject matter of this Agreement. Provider shall be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities.
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.4 Provider represents and warrants to MCI that the Services it furnishes to MCI shall be free of interruptions (as defined in Exhibit H) except for scheduled maintenance (as described in Exhibit G). Outages resulting from scheduled maintenance shall not
exceed one (1) cumulative hour per consecutive thirty (30) day period with respect to any single Circuit.
5.5 Provider shall obtain any authorizations and approvals necessary to furnish the Services to MCI. In the event of a conflict betw
een the terms of this Agreement and/or any Service Agreement and any tariff which Provider or MCI may file pursuant to any federal or state law, rule or regulation, the terms of any such tariff shall control; provided, however, that to the extent lawfully
required, Provider represents and warrants that there are no such conflicts on the date hereof. Notwithstanding the termination provisions set forth in paragraph 2.3 herein, if the provisions of any tariff alter the terms and conditions of this Agreement
a
nd/or any Service Agreement materially or adversely to either party, the affected party may terminate this Agreement and/or any affected Service Agreement(s) upon thirty (30) days notice to the other party, without incurring any termination liability. In
the event that MCI is the affected party, MCI shall also be entitled to receive any non-recurring charges incurred to effectuate a reconnection of the affected service.
5.6 Each party agrees that neither its equipment nor the Circuit(s) a
ssociated with the providing Services shall interfere with or impair any other services or facilities furnished by the other party including, but not limited to, damage to the other's plant, unlawful impairment of the privacy of any communications transmi
t
ted over the Service, or creation of a hazard to any employees or customers or to the public. If a party determines that any such impairment of interference exists and, in the event such impairment or interference, shall provide written notice to the othe
r
. The aforementioned notice shall state, if known, the nature and cause of the interference or impairment in sufficient detail to allow the damaging party to take immediate remedial measures including, but not limited to, blockage of the other party's net
w
ork associated with the Service as provided for in paragraph 6.5 herein. If additional equipment is required because of the damaging party's misuse of the Service, the damaging party shall bear the cost thereof. The damaged party shall have the right to i
nspect any such equipment to determine its compliance and compatibility with the damaged party's network.
VI. SERVICE SPECIFICATIONS, MAINTENANCE, REPAIR
AND TESTING
6.1 Provider represents, covenants and warrants to MCI that it shall, at all times, comply with the provisions of Exhibits G and H attached hereto and made a part hereof.
6.2 Provider warrants, covenants and represents that the Service it furnishes to MCI shall meet the technical specifications set forth in Exhibit A (hereinafter referred to as the "Specifications").
6.3 Provider shall be responsible for maintaining and repairing the Network in accorda
nce with the procedures set forth in Exhibit G. MCI is prohibited from performing any other maintenance and repair on the Network without the express written authorization of Provider. Upon request from MCI, Provider shall furnish, install, test, maintain
and repair any Interconnection Facilities in a Customer location, at Provider's sole cost and expense, in accordance with any procedures Customer and MCI deem appropriate, including, but not limited to, those procedures set forth in paragraph 2.9 of Exhib
it G.
6.4 Provider shall report, investigate and correct any failure, interruption or impairment of the Service in accordance with the procedures set forth in Exhibit G.
6.5 The parties agree that if either party, in it
s sole discretion, determines that any emergency action is necessary to protect its own telecommunications network, that party may block any signals the other party may be transmitting over the blocking party's network. In the event MCI blocks Provider's
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ircuit(s) and/or Service because such Circuit(s) and/or Service does not meet the parameters of the specifications set forth in Exhibit A, MCI shall be relieved of all obligations to make payments for charges relating to such Circuit(s) and/or Service unt
i
l such time as the affected Circuit(s) and/or Service meets the Specifications. Each party agrees that it will notify the other, as soon as practicable, when a blockage occurs and both parties agree to work diligently towards restoration of the affected C
ircuits and/or Service. Neither party shall have any obligation to the other party for any claim, judgment or liability resulting from such blockage, except as otherwise provided in this paragraph 6.5.
VII. COLLOCATION OF EQUIPMENT
7.1 Subject to MCI's approval, which approval may be withheld in MCI's sole discretion, Provider shall be permitted to install its equipment at MCI locations provided that such equipment shall be used solely for the purpose of providing access fac
ilities to interconnect the Service to MCI's telecommunications network. Any equipment installed by Provider must be MCI lab-approved. Any equipment Provider is permitted to install at an MCI location shall be maintained and repaired by Provider.
In ad
dition, MCI will allow Provider to access its equipment for the purpose of maintenance and repair of equipment and testing the Circuits and the Service, but only in accordance with procedures which MCI, in its sole discretion, deems to be appropriate, inc
l
uding, but not limited to, those procedures set forth in paragraph 2.9 of Exhibit G. For each MCI location in the metropolitan areas set forth in Exhibit C, the parties shall prepare a detailed scope of work, including a designation of the space at the MC
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location within which Provider will install its equipment and a list of the equipment Provider intends to install, which scope of work as amended from time to time shall be attached to this Agreement as a part of Exhibit C. Subject to all required approv
a
ls and the availability of sufficient space, MCI will provide, at MCI's cost, reasonable space, power and environmental conditions including, but not limited to, equipment space, battery space and conduit space, air conditioning and fire protection, as ne
cessary to facilitate said interconnection.
7.2 The parties agree that if Provider installs equipment at MCI locations in accordance with paragraph 7.1 herein, Provider will make the equipment available as a bailment and title to the equi
pment will remain with Provider. MCI shall have no right, title or interest therein, except as expressly provided in this Agreement. MCI will keep Provider's equipment free and clear of all liens, security interest and encumbrances. MCI shall have the rig
h
t to require Provider to relocate Provider's equipment for MCI's convenience due to MCI's networking requirements. Such equipment relocation at the same MCI location, and any associated out-of-pocket costs, shall be at MCI's expense and shall accrue after
written notice to Provider; provided, however, that if, as a result of MCI's networking requirements, Provider's equipment must be relocated to a different MCI location, such relocation shall be undertaken at Provider's sole cost and expense.
7.3 Provider understands and agrees that permission to install its equipment at an MCI location is not intended to and shall not be deemed to grant Provider any property rights in the location. In the event, however, that this arrangement shall be c
o
nstrued by the owner of the building in which the location is situated to be such a grant and if the owner of the building asserts such a grant to be a violation of the lease under which MCI occupies the location, Provider agrees, upon request of MCI, to
either enter into an agreement approved by said owner or immediately remove its equipment. MCI agrees to cooperate with Provider in obtaining the approvals Provider may need to obtain from any building owner.
VIII. SERVICE INTERRUPTION, LIMITATIONS OF WARRANTY
AND DAMAGES
8.1 For interruptions of the Capacity MCI shall be entitled to credit for interruption in one or more Circuits, unless such interruption is the result of any act or omission of MCI or suspension of Services by Provider as permitted under
the terms of this Agreement. The amount of the credit shall be as follows:
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Length of Service Interruption Credit
Less than [**] [**]
Each additional [**] period or [**]
fractions thereof
Notwithstanding the termination provisions of paragraph 2.3 herein or the default provisions of Arti
cle X herein, if any Circuit cannot meet the Specifications for any consecutive [**] period, or for [**] of the time over a consecutive [**] period, MCI may immediately terminate the Services or Circuit, at MCI's discretion, without incurring any terminat
i
on liability, and Provider will reimburse MCI for any and all installation charges MCI incurs in furnishing the Circuit and/or Services by an alternate method; provided, however, that such charges shall not exceed the then prevailing rates charged by the
local exchange carrier for comparable services.
In addition, if Provider has identified a location listed on Exhibit C, Building List, as being serviced by a self-healing fiber ring, MCI shall be entitled to a credit equal to one month's service in the eve
nt that there is a service interruption equal to or greater than one (1) second during a particular month. The credit will be applicable only against the specific levels of service affected by the interruption. In no event, however, shall MCI's credit for
such service interruption during a particular month at a location serviced by a self-healing ring exceed one month, regardless of the number of interruptions during that particular month.
Once a location has been identified by Provider as being serviced by a self-healing ring, that location will be subject to the service interruption credit listed above for the term of this Agreement.
8.2 For documented interruptions of available Switch Services, MCI shall be entitled to the following cr
edit, unless such interruption is the result of any act or omission of MCI or suspension of Services by Provider as permitted under the terms of this Agreement:
Length of Service Interruption Credit
Less than [**] [**]
Each additional [**] period or [**]
fractions thereof
The credit shall apply to the period directly succeeding the resumption of interrupted service.
8.3 THE FOREGOING SHALL BE PROVIDER'S SOLE OBLIGATION AND MCI'S SOLE REMEDY FOR ANY LOSS OR DAMAGE SUSTAINED AS A RESULT .OF ANY INTERRUPTION OR FAILURE OF THE SERVICE OR ANY FACILITIES USED IN PROVIDING THE SERVICE, HOWEVER LONG IT SHALL LAS
T AND REGARDLESS OF THE CAUSE, UNLESS SUCH LOSS OR DAMAGE IS DUE TO PROVIDER'S WILLFUL OR NEGLIGENT ACT OR OMISSIONS; PROVIDED, HOWEVER, THAT NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED.
8.4 IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTIES FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, THOSE BASED ON LOSS OF REVENUES, PROFITS OR BUSINESS OPPORTUNITIES, WHETHER OR NOT PROVIDER OR MCI HAD OR SHOULD HAVE H
AD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
8.5 THERE ARE NO AGREEMENTS, WARRANTIES, OR REPRESENTATIONS, EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRAN
TIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN.
IX. INDEMNIFICATION
9.1 Provider shall indemnify and hold MCI and its Customers harmless from and against any an
d all loss, liability, damage and expense (including reasonable attorneys' fees) arising out of any demand, claim, suit or judgment for damages to any property or bodily injury to or death of any persons, including, but not limited to, customers, agents a
nd employees of either party hereto (including payment under any worker's compensation law or under any plan for employee disability and death benefits) which may arise out of or be caused by any act or omission of Provider.
9.2 MCI shall
indemnify and hold Provider harmless from and against any and all loss, liability, damage and expense (including reasonable attorneys' fees) arising out of any demand, claim, suit or judgment for damages to any property or bodily injury to or death of an
y
persons, including, but not limited to, ...
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