Preview of our top selling Strategic Marketing Agreement
Level 3 / Data Return - Strategic Marketing & Sales Agreement
July 1, 1999
STRATEGIC MARKETING AND SALES AGREEMENT
THIS STRATEGIC MARKETING AND SALES AGREEMENT ("Agreement") is made and entered into this 1st day of July
, 1999, by and between LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company ("Level 3") and DATA RETURN CORPORATION, a Texas corporation ("Customer"). This Agreement modifies that certain Customer Order (including the Standard Terms and Condi
t
ions for Delivery of Services, a copy of which is attached hereto as Exhibit D) executed by Level 3 and Customer dated April 28, 1999; the Customer Order, and the Standard Terms and Conditions, are hereby incorporated into this Agreement. The terms and pr
o
visions contained in this Agreement modify the terms contained in the Customer Order as set forth herein. To the extent that the terms of this Agreement are inconsistent with the terms in any Customer Order (including the Standard Terms and Conditions), t
he terms set forth in this Agreement shall control.
ARTICLE 1
DEFINED TERMS
1.1 Advanced Microsoft Hosting Service. "Advanced Microsoft Hosting
---------------------------------- Service" shall mean hosting services delivered by Customer on the Microsoft platform and which has a Monthly Recurring Charge of one hundred dollars ($100.00) or more per customer.
1.2 Broadband Services. "Broadband Services" shall mean the services
------------------ provided by Level 3 to Customer originating in the United States hereunder. Broadband Services shall include (a) a local ethernet connection for distribution of content to other networks on the local ethernet in a
Gateway Facility, (b) InterGateway transport, with traffic terminating to any customer on the Level 3 Network or any Level 3 peer through non-paid peering points, and (c) transit services, with traffic terminating to Level 3 transit connections.
1.3 Capacity Forecasts. "Capacity Forecasts" shall mean forecasts of
------------------ Customer's reasonably anticipated needs for Broadband Services, Colocation Space, Private Line Service and other associated services and products which Level 3 can provide.
1.4 Colocation Space. "Colocation Space" shall mean space within Level
---------------- 3's Gateway Facilities in the United States which is used by Customer for the placement of electronic communications equipment and connec
tion of such equipment to other parties or networks (including, but not limited to, the Level 3 Network).
1.5 Technical Assistance: "Technical Assistance" shall mean technical
-------------------- support provided by Level 3 personnel wit
hin the Gateway Facility. Technical Assistance services shall be purchased in blocks of hourly time, and will cover basic hardware and operational functions such as: Power Cycling Equipment; Securing Cables; Setting Switches; Hot Swapping Components; Swa
pping Backup Tapes; and physical equipment Installs (but excluding configuration of such equipment).
1.6 Gateway Facility. "Gateway Facility" shall mean Level 3's leased or
---------------- owned facility in various cities in the United States where connections to the Level 3 Network can be accomplished.
1.7 Level 3 Network. "Level 3 Network" shall mean Level 3's leased or
--------------- owned Internet Protocol network, including the bandwidth capacity and connections to other networks and
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providers, and such future network capacity, connections and technologies as Level 3 shall hereafter acquire, lease or develop.
1.8 Monthly Recurring Charges. "Monthly Recurring Charges" shall mean the
------------------------- monthly charges for the various services delivered hereunder, as set forth in Exhibit A.
1.9 Nonrecurring Charges. "Nonrecurring Charges" shall mean the charges
-------------------- for the installation and reconfiguration of the various services delivered to each party hereunder, as set forth in Exhibit A.
1.10 Off-Net Services. "Off-Net Service" shall mean Broadband Services
---------------- that are not delivered through direct non-paid transit or peering connections to the Level 3 Network (i.e., those Broadband Services that are delivered through paid transit connections provided by other carriers).
1.11 On-Net Service. "On-Net Service" shall mean Broadband Services that
-------------- are delivered through direct connections to the Level 3 Network (i.e., those Broadband Services that are not delivered through paid transit connections provided by other carriers).
1.12 Preferred Provider. "Preferred Provider" refers to a designation by
------------------ Level 3 under Level 3's "Value Added Partner" program where Level 3 recommends (with appropriate disclaimers of any liability resulting from a cust
omer's reliance on such recommendation) the services and/or products provided by a Preferred Provider based on the unique capabilities of the designated company.
1.13 Private Line Service. "Private Line Service" shall mean point to
-------------------- point dedicated transport service connecting two locations, one of which is located within the continental United States.
1.14 Term. "Term" shall mean the period of time that commences upon
---- execution of this Agreement and ends five (5) years thereafter, unless sooner terminated in accordance with the requirements of the Standard Terms and Conditions.
ARTICLE 2
PURCHASE COMMITMENT
2.1 Services Included. Level 3 agrees to sell to Customer, and Customer
----------------- agrees to purchase from Level 3, the following Services: Colocation Space (including Technical Assistance); Broadband Services; Private Line Services (collectively the "Services").
2.2 Revenue Commitment. Provided Level 3 is delivering Services in
------------------ accordance with the requirements of this Agreement, Customer shall, on a monthly basis during the Term order and pay for the following volumes of Services (the "Revenue Commitment"):
Contract Year* Cumulative Monthly Recurring Charges Per Quarter
-------------- ------------------------------------------------
1 $ 200,000
2 $ 300,000
3 $ 400,000
4 $ 600,000
July 1, 1999
5 $1,000,000
* Each "Contract Year" shall be measured as each full year after execution of this Agreement (so that Contract Year 1 ends one year from execution hereof).
The Revenue Commitment is a "take-or-pay" commitment; on a quarterly basis Customer will be billed for the greater of (a) its actual usage of Services, or (b) the billing amount that would have been charged if the Revenue Commitment had been satisfied.
2.3 Requirements Commitment. Commencing twelve (12) months after
----------------------- execution hereof, Customer shall satisfy no less than seventy five percent (75%) of its requirements for all services which are substantially similar to and perform substantially the same function as the Services (incl
uding Colocation Space) through purchases from Level 3. Commencing eighteen (18) months after execution hereof and continuing for the remainder of the Term, Customer shall satisfy no less than ninety percent (90%) of its requirements for all services whic
h
are substantially similar to and perform substantially the same function as the Services through purchases from Level 3. Satisfaction of the foregoing percentage requirements will be determined by measuring Customer's use of (a) total Mbps of Broadband S
ervices, and (b) total square feet of Colocation Space.
2.4 Price for Broadband Service. In the event that, during the Term of
--------------------------- this Agreement, Level 3's standard prices for Broadband Services are (taken as a who
le and for customers making a dollar volume commitment which, on a monthly basis, is equal to or greater than the Revenue Commitment made by Customer herein) less than the prices for Broadband Services as set forth in Exhibit A, then the Monthly Recurring
Charges for Broadband Services delivered to Customer hereunder shall, from and after such date, be reduced so that such Monthly Recurring Charges are no greater than the standard discounted prices offered for such other customers.
ARTICLE 3
PURCHASE AND DELIVERY OF BROADBAND SERVICES
3.1 The Broadband Services. Level 3 shall, except as otherwise provided
---------------------- herein and upon request of Customer, deliver and provide Bro
adband Services to Customer. The Monthly Recurring Charges and Nonrecurring Charges applicable to the ordering and delivery of the Broadband Services are set forth in Exhibit A attached hereto. Customer hereby requests, and Level 3 hereby agrees to prov
ide, the Broadband Services described in Exhibit B attached hereto, which Broadband Services shall be delivered to Customer at the locations identified in Exhibit B.
3.2 Terms and Conditions. Except as modified by the terms of this
-------
------------- Agreement, the terms and conditions applicable to Level 3's delivery of, and Customer's purchase of, the Broadband Services shall be as set forth in Level 3's Terms and Conditions for Delivery of Services attached hereto as Exhibit D. The Br
oadband Services shall be considered to be "Services" as defined in Level 3's Terms and Conditions.
3.3 Forecasts and Capacity Management. Customer will submit Capacity
--------------------------------- Forecasts to Level 3 on a quarterly
basis during the Term. Level 3 will, on a periodic basis throughout the Term, evaluate Customer's consumption and use of Services and consult with Customer regarding the ordering and provisioning of sufficient capacity to meet Customer's needs.
July 1, 1999
ARTICLE 4
ADDITIONAL TERMS RELATING TO COLOCATION SPACE
4.1 Agreement to Service Order. The terms set forth in this Article 4
-------------------------- shall supplement and, to the extent inconsistent therewith, supersede, the terms and conditions set forth in the Customer Order.
4.2 Colocation Space. Subject to availability, Level 3 shall, upon
---------------- request of Customer, deliver and provide Colocation Space to Customer in Level 3's Gateway Facilities (only those located in the United States) for the Term hereof. The Monthly Recurring Charges and Nonrecurring Charges applicable to
the ordering and delivery of the Colocation Space (including charges for consumption of power) are set forth in Exhibit A attached hereto. The minimum term for Customer's use of Colocation Space (the "Colocation Term") shall be five (5) years from the da
te upon which the Colocation Space was delivered to Customer (regardless of whether the Term of this Agreement expires prior to such time).
4.3 Order for Colocation Space. Customer hereby orders, and Level 3
-------------------------- here
by agrees to provide, the Colocation Space within the Gateway Facilities identified and set forth in Exhibit B attached hereto. Level 3 shall complete the build-out of the Space and shall make such Space available to Customer on or before February 1, 1999
. Level 3 agrees to make individual Colocation Space available within 60 days of Customer's request.
ARTICLE 5
PREFERRED PROVIDER STATUS AND COOPERATIVE MARKETING
5.1 Designation as Preferred Provider. Upon execution of this Agreement
--------------------------------- and subject to execution Level 3's standard agreement "Value Added Partners", Level 3 will designate Customer as a Preferred Provider for Advanced Microsoft Hosting Service.
Such designation is non-exclusive, and shall continue and remain in place only for so long as Level 3 determines. Level 3 may, in its discretion, cease such designation at any time; provided, however, that in the event that Level 3 ceases such designation
other than "For Cause" (as defined below), and Level 3 has designated or subsequently designates another entity as its Preferred Provider for Advanced Microsoft Hosting Service, or discontinues the entire Preferred Provider and Value Added Partner Program
s
, then Customer may terminate its purchase commitments contained in Sections 2.3 hereof, and all other obligations shall continue in full force and effect. For purposes of the foregoing, "For Cause" termination by Level 3 shall mean a termination which r
e
sults from Level 3's reasonable determination that the quality of service or the breadth and usefulness of service offerings provided by Customer are materially changed, so that such service offerings are (in Level 3's judgement) inadequate to support con
t
inued designation of Customer as a Preferred Provider (which shall occur only after Level 3 has given Customer thirty (30) days advance written notice and Customer has failed to take such steps as Level 3 reasonably determines are necessary to continue Cu
s
tomer's designation as a Preferred Provider). Notwithstanding the foregoing, the following procedure shall apply to a termination "For Cause" during the first year after execution of this Agreement. In the event that, during such time, Level 3 becomes a
w
are of demonstrable and material deficiencies in Customer's delivery or service offerings, Level 3 may, on thirty (30) days' written notice to Customer and provided Customer has not within such time taken steps to cure the deficiencies specified by Level
3
, suspend Customer's designation as a Preferred Provider. Upon such suspension, Customer shall have a period of one hundred twenty (120) days within which to cure the deficiencies specified by Level 3. In the event Customer fails to do so, then Level 3 m
ay
July 1, 1999
terminate the designation as a Preferred Provider and such termination shall be deemed to be "For Cause" hereunder.
5.2 Sales Training. No later than September 30, 1999, Customer and Level
-------------- 3 will develop a mutually agreed schedule for Customer to provide sales training to the Level 3 sales staff at operational Gateway Facilities during 2000, and as required through the length of this contrac
t. The sales training will be sufficient to provide the Level 3 sales staff with a basic working knowledge of the Advanced Microsoft Hosting Service offered by Customer so that the sales staff can identify Prospects which might be able to use the Advanced
Microsoft Hosting Service in their business applications. Sales training will be provided at Customer's expense (except that Level 3 will be responsible for the payment of compensation of such personnel and travel and lodging expenses incurred by its per
sonnel in connection therewith), and will be prioritized according to a mutually agreed upon schedule to coincide, to the extent feasible, with the opening of each new Gateway Facility.
5.3 Prospect Contacts. Each party will cause its employed and independent
----------------- sales force to assist the other party's employed and independent sales force in the sale of the other party's services (so that Level 3 shall provide leads to Customer for the sale of Advanced Microsoft Hosting Servic
es, and Customer shall provide Level 3 with leads for the sale of Service) as set forth herein. Such assistance shall include providing customers who may have an interest in or need for the other party's services ("Prospects") with the name and marketing
materials for the services of the other party, providing the other party with names of Prospects and (where such party determines appropriate) introducing the other party's professional sales staff to Prospects. The referral of Prospects contemplated her
e
by is non-exclusive; either party may provide referrals to other suppliers of services competitive with the services provided by the other party. Notwithstanding the foregoing, both parties agree that they will inform the other of all Prospect leads of w
h
ich they become aware during the Term (but either party may also refer or provide such Prospect leads to other companies). A failure or alleged failure of either party to refer a Prospect to the other, to provide marketing material respecting the other's
service to such Prospect, or to otherwise perform the cooperative marketing envisioned by this Article 4 shall not constitute a default in the performance of this Agreement.
5.4 Managers. Each party shall identify management personnel to supervise
-------- and monitor the performance of the cooperative marketing contemplated by this Article 4. Level 3 will identify a "Channel Manager" for the management of this Agreement to oversee all activities in connection with such cooperative market
i
ng and to supervise and monitor local cooperative marketing activities. The Channel Manager's general responsibilities are delineated in Exhibit C. The Channel Manager will schedule and moderate a day-long seminar for regional sales groups, which seminar
s shall be conducted by Customer at its sole cost and expense, and which will cover the following general topics:
a. overview of Customer and the Advanced Microsoft Hosting Services, as
well as an overview of web hosting services generally;
b. an overview of Level 3 incentive programs for the sales personnel will
be presented by the Channel Manager; and
c. processes for qualification and referral of Prospects.
July 1, 1999
The marketing managers for each party shall use good faith efforts to assure that the seminars are attended by all relevant and required personnel (it being Level 3's goal to assure that at least ninety percent (90%) of its sales staff attends
such seminar). The marketing managers of each party will work together to jointly develop sales support materials, including an overview of the Customer/Level 3 service package, comprehensive sales kit for distribution to Prospects and development of a
w
eb site (or development of additional pages to the Level 3 and Customer web sites) to promote the services of each party. Level 3 shall, within forty five (45) days after execution of this Agreement, generate a written plan for implementation of the fore
g
oing activities. While no sales quota or other objective performance criteria is applicable to either party's performance of this Article 4, the parties agree to define specific strategic goals of the relationship, periodically evaluate the performance o
f
both parties hereunder, and work together in good faith to take steps designed to ensure that the specific strategic goals of the parties are met. The parties agree that a failure or alleged failure of a party to perform any obligation imposed by this A
rticle 4 shall not constitute a material default in the performance of this Agreement.
5.5 Value Added Partner Program. Level 3 will make Customer a
--------------------------- participant in Level 3's "Value Added Partner" program (which
is generally described in Exhibit C) and will provide Customer with all of the benefits associated with such program (including participation in the web-enabled customer support system ("WECSS") when such system is implemented by Level 3). Level 3 reserve
s
the right to change the terms of its "Value Added Partners" program at any time; provided, however, that in the event that Level 3 materially alters the Value Added Partners program during the Term of this Agreement, Level 3 and Customer shall meet and d
iscuss measures to preserve the benefits associated with the program.
5.6 Vendor Relationships. Customer acknowledges that Level 3 has
-------------------- established relationships and high level contacts with certain vendors (including Mi
crosoft and Compaq) and this Agreement and the relationship created hereby will not give Customer any right to participate in or otherwise influence or affect Level 3's business dealings and relationships with such vendors. Customer also has independent b
u
siness relationships with certain vendors (including Microsoft and Compaq) and intends and commits to use those business relationships in connection with a good faith effort to generate increased platform demand for Level 3's Services. Further, it is Lev
e
l 3's intention to feature Customer's Advanced Microsoft Hosting Services as part of Level 3's relationship with Microsoft and Compaq. Toward this objective, Customer and Level 3 will work cooperatively together to address Microsoft initiatives such Micr
o
soft's Business to Consumer and Business to Business E-Commerce programs in a manner that features Level 3's Services and Customer's Advanced Microsoft Hosting Services. Likewise, Data Return and Level 3 will work cooperatively together to address Compaq
market development initiatives in a manner that features Level 3's Services and Customer's Advanced Microsoft Hosting Services.
5.7 Product Development. Customer and Level 3 will work together to
------------------- develop new products an
d services to grow the Advanced Microsoft Hosting Services. To the extent allowed by Customer's contractual commitments and non- disclosure agreements with Microsoft, Customer will involve Level 3 in the "Windows 2000" readiness deployment partners task
force.
5.8 Commissions. A sale to a Prospect shall only generate Commission, as
----------- defined below, if a sale is closed within 120 days of initial introduction of the Prospect to the selling party. Each party will pay to the other t
he commission ("Commission") set forth in this Section. The Commission payable by Customer hereunder shall be equal to thirty percent (30%) of the gross recurring revenue (not including any set-up fees) received by Customer in the first full billing
July 1, 1999
month after initiation of delivery of service to the Prospect received by Customer as a result of a sale of services to a Prospect introduced to Customer by Level 3. The Commissi
on payable by Level 3 shall be determined in accordance with Exhibit D. Only the party which initiated a sales call to a Prospect shall be entitled to a Commission; any dispute respecting which party is entitled to a Commission on the sale of services to
a Prospect shall be resolved by designated sales management for each party. A party's failure to pay a Commission allegedly owing as a result of a good faith dispute shall not constitute a material default of this Agreement.
5.9 Prospect Terms and Conditions. Each party shall have the sole and
----------------------------- absolute discretion respecting the terms and conditions for such party's agreement for the sale of services to Prospects. Nothing in this Agreement shall be construed to
be a binding commitment on the part of either party to sell services to Prospects. Each party shall be solely responsible for the performance of any agreements it enters into with any Prospects. Neither party shall have (or represent to any Prospects th
a
t it has) the authority to act as agent for the other, enter into contracts for, or otherwise commit the other party to, the delivery of services to any Prospect. Each party shall use its best efforts to preserve the goodwill and business reputation of t
he other party in connection with the cooperative marketing of services contemplated hereby.
ARTICLE 6
DEFAULT AND TERMINATION
In the event that, other than as may be caused by an event of for
ce majeure or by the wrongful actions or omissions of the other party, a party fails to timely observe or perform any material covenant, agreement, obligation, term or condition required to be observed or performed hereunder, which failure is not cured wi
t
hin thirty (30) days after receipt of written notice thereof (a "Default"), then the other party may, in addition to any other remedies which it has hereunder (including but not limited to the remedies set forth in Exhibit D, which remedies would be appli
c
able for a Default hereunder), terminate this Agreement by providing written notice of termination to the defaulting party. In the event that this Agreement is terminated as a result of a Default by Customer (other than a Default in the payment of money d
u
e), then Customer may, notwithstanding such termination, continue to use the Colocation Space ordered by Customer hereunder for a period of not longer than 150 days after the effective date of termination; PROVIDED, however, that (a) Customer timely pays
any charges due for the use of such Colocation Space during such period, and (b) Customer abides by all other terms and conditions applicable to the use of such Colocation Space during such period.
ARTICLE 7
GENERAL PROVISIONS
7.1 Press Releases.
--------------
(a) Neither party shall, without the advance written consent of the other party (which may be granted or withheld in the sole discretion of such party), issue
any press release respecting this Agreement or the terms hereof or otherwise disclose this Agreement or the terms hereof to any other party.
(b) In the event either party shall be required to disclose all or any part of this Agreement in, or attach
all or any part of this Agreement to, any regulatory filing or statement, each party agrees to discuss and work cooperatively, in good faith, with the other party, to protect, to the
July 1, 1999
extent possible, those items or matters which the other party deems confidential and which may, in accordance with applicable laws, be deleted therefrom.
7.2 No Agency. This Agreement does not constitute either party as the
----
----- agent or legal representative of the other party and does not create a partnership or joint venture between the parties. Neither party shall have any authority to agree for or bind the other party in any manner whatsoever, unless otherwise authoriz
ed to do so in writing during the Term. This Agreement confers no rights of any kind upon any third party.
7.3 Entire Agreement; Amendment. This Agreement (including the Customer
--------------------------- Order) sets forth the entire und
erstanding of the parties and supersedes any and all prior agreements, arrangements or understandings relating to the subject matter hereof. No subsequent amendment to this Agreement shall be effective or binding unless it is made in writing by authorize
d representatives of the parties.
7.4 Enforceability. If any part of any provision of this Agreement or any
-------------- other Agreement, document or writing given pursuant to or in connection with this Agreement shall be invalid or unen
forceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement.
7.5 Governing Law. This Agreement is made pursuant to and shall be
------------- construed and enforced in accordance with the laws in force in the State of Colorado.
7.6 Non-Exclusive. This Agreement is non-exclusive. Except as might result
------------- from Section 2.3, nothing in this Agreement shall prevent either party from entering into similar arrangements with, or otherwise providing services to, any other person or entity.
7.7 Notices. All notices or other communications which are required or
------- permitted herein shall be in writing and sufficient if delivered personally, sent by prepaid overnight air courier, or sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
IF TO LEVEL 3
LEVEL 3 COMMUNICATIONS, LLC
1025 Eldorado Blvd.
Broomfield, Colorado 80021
Attn: General Counsel
IF TO CUSTOMER:
DATA RETURN CORPORATION
801 Stadium Drive
Suite 117
Arlington, Texas 76011
Attn: President
or at such other address as the party to whom notice is to be given may have furnished to the other party in writing in accordance herewith.
Any such communication shall be deemed to have been given when delivered if delivered personally, on the business day after dispatch if sent by overnight air courier, or on the third business day after posting if sent by mail
July 1, 1999
7.8 Successors and Assigns. This Agreement shall be binding upon and
---------------------- inure to the benefit of the parties hereto and their respective successors and assigns.
7.9 Change of Control. In the event that there is a Change of Control (as
----------------- defined below) which results in either party owing or being owned by a Direct Competitor (as defined below) of the other party, then the other party sh
all (if it is not then in Default hereunder) have the rights and alternatives specified herein. If a Change of Control which results in Level 3 owning or being owned by or being under common ownership with a Direct Competitor of Customer occurs, then Cust
omer shall have the right, by written notice delivered to Level 3 within thirty (30) days after Customer learns of such event, to elect to:
(a) terminate the obligations of both parties under Article 5 of this
Agreement; and/or
(b) terminate its obligations under Section 2.3 of this Agreement, in which
event Customer would remain obligated to satisfy the purchase commitment
contained in Section 2.2 hereof.
If a Change of Control which results in Customer owning or being owned by o
r being under common ownership with a Direct Competitor of Level 3 occurs, then Level 3 shall have the right, by written notice delivered to Customer within thirty (30) days after Level 3 learns of such event, to elect to:
(y) terminate the obligations of both parties under Article 5 of the
Agreement; and/or
(z) terminate this Agreement (including the provision of Service to
Customer) in its entirety, in which event Customer would be responsible for
payment of a termination charge equal to the Revenue Commitment for the
balance of the Term hereof (so that if the Agreement was terminated on the
fourth anniversary of the date of this Agreement, for example, Customer
would pay a termination charge of $4 million ($1 million multiplied by the
remaining quarters in the Term).
Provided Customer is not then in default of any other material terms, Customer shall be permitted a reasonable period of time (not to exceed ninety (90) days) within which to terminate consumptio
n of Service delivered hereunder (except that any obligation to vacate the Colocation Space shall occur within the time frames set forth in Article 6 hereof). For purposes of the foregoing, "Change of Control" shall mean the act, by any person or entity,
of obtaining "control", meaning ownership (direct or indirect), of more than twenty five percent (25%) of the equity, or the ability to direct more than twenty five percent (25%) of voting power, or ability to direct management policies, of an entity. Wi
t
h respect to Customer, a "Direct Competitor" is any entity that derives revenue that is greater than or equal to Customer from the sale or delivery of Advanced NT Hosting Services. With respect to Level 3, a "Direct Competitor" is any entity that derives
more than eighty percent (80%) of its revenue from the sale or delivery of Services.
7.10 International Negotiations. Promptly following the date hereof, the
-------------- parties agree to negotiate in good faith to enter into an agreemen
t or agreements for Services on a world-wide basis upon substantially the same terms and conditions as provided in this Agreement, with appropriate changes to address (a) non-United States legal issues with respect to the countries in which such services
are to be performed, and (b) different pricing terms to be agreed by the parties to take into
July 1, 1999
account different costs to Level 3 of providing such services outside of the Uni
ted States. Neither party shall be obligated to execute any such agreement or agreements, and the failure or alleged failure of either party to negotiate in good faith shall not constitute a Default under Article 6 hereof.
7.11 Multiple Counterparts. This Agreement may be executed in one or more
--------------------- counterparts, which when taken together, shall constitute one and the same document. The parties hereby agree that facsimile signatures are valid and binding on the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
LEVEL 3 COMMUNICATIONS, LLC
By: /s/ Michael C. Knaisch
------------------------------ Its: V.P. WEBBUSINESS
----------------------------- Dated: JULY 1, 1999
---------------------------
DATA RETURN, INC.
By: /s/ Sunny C. Vanderbeck
------------------------------ Its: Chairman & CEO
----------------------------- Dated: July 1, 1999
---------------------------
Exhibit A - Pricing Exhibit B - Colocation Space Ordered by Customer Exhibit C - Level 3 Value Added Partner Program Exhibit D - Standard Terms and Conditions for Delivery of Services
July 1, 1999
Exhibit A
Pricing for Broadband Services and Colocation Space
A. Broadband Services Monthly Recurring Charges: - ---------------------------------------------------
Intra-Gateway Exchange
- -----------------------------------------------------------------------------------------------------
Ethernet Port Speed Year 1 Year 2 Year 3
- -----------------------------------------------------------------------------------------------------
100 Mbps $1,000/mo $1,000/mo $1,000/mo
- -----------------------------------------------------------------------------------------------------
1000 Mbps $1,500/mo $1,500/mo $1,500/mo
- -----------------------------------------------------------------------------------------------------
On-Net Transport
- -----------------------------------------------------------------------------------------------------
Monthly Mbps Year 1 Year 2 Year 3
- -----------------------------------------------------------------------------------------------------
000-500 Mbps/mo $300/Mbps $270/Mbps $245/Mbps
- ----------------------------------------------...
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