SERVICES AGREEMENT
This Agreement is made as of 12/3 , 199 9 ("Effective Date"), between Covad Communications Company, a California corporation) ("Covad") FASTNET, A PENNSYLVANIA CORPORATION, the "Customer" listed below.
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Customer Information
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Customer Name: FastNet Contact: Scot Reynolds
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Address: Two Courtney Place, Suite 130, 3864 Courtney St. Phone: 610-266-6700
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City: Bethlehem State: Pa. Zip: 18015 Fax: 610-231-9525
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Type: -X- ISP ______ Corporate E-Mail: scotr@fast.net
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Exhibits Terms Page
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Terms and Conditions Expires: 1-2
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Volume Commitment 5,000 line commitment 3
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Price Schedule - TeleSpeed" Services 4-6
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Service Level Agreement 7-10
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Price Schedule TeleSurfer Services
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Advantage Addendum with National Circuit
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Marketing Development Funds
THIS AGREEMENT INCLUDES THE ATTACHED TERMS AND CONDITIONS AND ALL OTHER EXHIBITS REFERENCED HEREIN, AND CONTAINS, AMONG OTHER THINGS, WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS. Any different or additional terms of any related purchase order, confirmation, or similar form shall have no force or effect, unless signed by both parties after the date hereof. References in this Agreement or any exhibit to a capitalized term appearing on this cover page shall have the meaning or value of such term on this cover page.
COVAD COMMUNICATIONS COMPANY: CUSTOMER: FASTNET
/s/ David Van Allen 12/3/99 - -------------------------------- ------------------------------------------ Name Date Name Date
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ADVANTAGE PROGRAM ADDENDUM
This Advantage Program Addendum ("Addendum") is made effective as of the third day of December, 1999 ("Addendum Effective Date") by and between Covad Communications Company, a California corporation ("Covad"), and the "Customer" described in the Services Agreement between Covad and Customer (the "Agreement"). Covad and Customer now wish to amend the Agreement.
The parties agree: that this Addendum supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Addendum and all past dealing or industry custom; that this Addendum shall be integrated in and form part of the Agreement upon execution; and that all terms and conditions of the Agreement shall remain unchanged except as modified in this Addendum, and where the terms of the Agreement conflict with those of this Addendum, however, the terms of this Addendum shall control.
In consideration of the foregoing and the mutual covenants contained in this Addendum, and other consideration, which the parties acknowledge is sufficient, Covad and Customer agree that the Agreement is hereby amended in the manner set forth in the attachment hereto ("Addendum Specifics").
IN WITNESS WHEREOF this Addendum has been executed by the parties hereto by their employees duly authorized as they so declare.
COVAD COMMUNICATIONS COMPANY: CUSTOMER: FASTNET
/s/ David Van Allen 12/3/99 - -------------------------------- ------------------------------------------ Name Date Name Date
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Advantage Program Addendum - Schedule A - --------------------------------------------------------------------------------
The parties hereby amend the Agreement to provide as follows:
1. Customer agrees that Covad shall be Customer's preferred DSL provider
such that 90% of all DSL services (or similar services) sold or resold
by Customer to its End Users shall be purchased from Covad and not from
any other provider, provided that if Covad is unable to provide DSL
service to an End User within 60 days of a bona fide order being placed
with Covad for such, Customer may provide DSL service to such End User
through a party other than Covad. Customer will provide Covad on a
quarterly basis, an accounting of all DSL services sold or resold by
Customer during such prior quarter so that Covad may verify Customer's
compliance with the 90% preferred provider commitment set forth above.
2. Customer agrees to staff a subject matter expert on Covad and DSL that
is dedicated to receiving information from Covad about DSL as well as
any sales leads that Covad may send to Customer as part of any demand
generation programs.
3. Customer agrees to develop a strategy to implement e-commerce links
between Customer and Covad. These links include, but are not limited
to, API implementation, Covad-branded landing pages on Customer's web
site from which End Users can place orders, and detailed reporting on
End User lines sold through e-commerce links.
4. If customer abides by all of its obligations under this Addendum and
under the Agreement, customer will be eligible to participate in
Covad's then-applicable Advantage Program as such Program may exist
from time to time. Pricing and other terms for services specifically
related to the Advantage program are attached as schedules to this
TERMS AND CONDITIONS
SCHEDULE A
National Customer Circuit Service
Covad hereby offers to Customer a National Customer Circuit Service
(the "National Service") option to its TeleSpeed and TeleSurfer
The National Service will provide National backhaul connectivity across
Covad's National network and will include local access connectivity
over one (1) DS-3 Customer Circuit to a single point within Covad's
current service area. Pricing does not include TeleSpeed and TeleSurfer
End User monthly charges.
NATIONAL CUSTOMER CIRCUIT MONTHLY RECURRING CHARGES:
Subscribed Data Rate -- Billed-in advance
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Data Price per
Rate* Month
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5 Mbps [ * ]
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10 Mbps [ * ]
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20 Mbps [ * ]
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30 Mbps [ * ]
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Full DS-3 [ * ]
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*Total peak bit rate, including all ATM headers
EXCESS USAGE - if Customers actual aggregate data rate utilization over a National Circuit exceeds the subscribed data rate on the above schedule, the following excess usage charges shall apply, billed in arrears:
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0-5% of usage samples (per month) above subscribed rate: [NO CHARGE]
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5% or higher of usage samples (per month) above subscribed rate: [ * ]
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Customer shall have the option to change the subscribed data rate for the current month until 5:00 p.m. PST on the day prior to the last business day of each current month. Changes in the subscribed data rate will be credited or debited in the following billing cycle.
NATIONAL CUSTOMER CIRCUIT NON-RECURRING CHARGES:
New Customer Circuits - [ * ]
Conversion of Existing Local Customer Circuit to a National Circuit -
No charge.
Conversion of National Customer Circuit to a Local Circuit* - No
[*] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Exchange Commission.
TERMS AND CONDITIONS
Re-provisioning ("Migration") of end-user PVCs between two different
Local and National Circuits - [*] per end user PVC until such time as
Covad introduces an automated tool on support.covad.com. Covad expects
to introduce such tool on or before February 28, 2000. Migration of
end-user PVCs between any two individual Local and National Circuits
with the automated tool will incur a charge of [*] per use, for an
unlimited number of PVC migrations.
All non-local TeleSurfer end user PVCs must be migrated off of the
National Circuit before it can be converted to a Local Circuit.
TERMS OF USE
Customer will pay the applicable Monthly and Non-Recurring Charges specified above pursuant to the terms of the Agreement. Remote region End User traffic can be combined with and carried with local region traffic on the National Service Customer Circuit, however all traffic will be included in the data rate subscribed to as indicated in the above table.
National Service is to be used expressly for the provisioning of TeleSpeed and TeleSurfer Service to individual End Users. Customer represents that the actual aggregate data rate utilization by End Users shall not exceed the maximum data rate subscribed to above (95% or more of Customer Circuit data rate usage samples, sampled at 5-minute intervals, shall be less than subscribed data rate in any calendar month). If the actual Customer Circuit data rate used by Customer (for more than 5% of samples over specified intervals) for National Service exceeds the subscribed data rate, then Customer shall pay the appropriate monthly excess usage charges outlined above.
Covad expects to introduce SLAs for TeleSpeed Service provisioned on a National Circuit prior to December 31, 1999, which will replace the standard TeleSpeed SLA Agreement outlined elsewhere in the Agreement. Customer shall not receive the benefit of the SLA for National Service prior to its introduction.
[*] We are seeking confidential treatment of these terms, which have been omitted. The confidential portion has been filed separately with the Securities and Exchange Commission.
TERMS AND CONDITIONS
1. DEFINITIONS. As used herein: "Services" are services using digital subscriber line ("DSL") technology to provide high-speed telecommunications data services identified in the attached Price Schedule(s) which may include business-grade TeleSpeed and TeleSpeed Remote Services and consumer-grade Telesurfer Services) to Customer's Internet and network access customers ("End User"), that Covad makes available at its discretion, and as more fully described on the Covad Web Site: "End User Circuit" is a digital data telecommunications service that consists of one permanent virtual circuit to an End User's premise utilizing DSL technology. An End User Circuit provides upstream and downstream maximum throughout rates that range from 144Kbp,-up to 1.5 Mbps (depending on what Customer orders for that End User). Provision of an End User Circuit does not include any Internet access service: "Customer Circuit" is a backhaul circuit between Covad's regional data center or hub and Customers point-of-presence in a particular region, this is generally required before Covad can provide Services in that region. Customer may order a Customer Circuit from the Web Site. "Web Site" means Covad's customer ordering web site located at: http://support.covad.com.
2. PROVISION OF SERVICES. Subject to payment of all applicable fees, Covad will use reasonable commercial efforts to supply the Services that Customer may order from time to time through the Web Site. All Services will be supplied in accordance with the Agreement, these Terms and Conditions, and the current standard Customer Policies. Customer shall purchase Services for each End User for an initial term of one (1) year ("End User Term"), and shall maintain each Customer Circuit for a minimum one (1) year term ("Customer Term"), after which Covad shall continue to provide Services to such Customer on a monthly basis, subject to continuing payment of applicable fees and Customer's compliance of terms and conditions requested by Covad. Covad reserves the sole and exclusive right to determine the expansion of its service area, and the fight to maintain, reconfigure, or discontinue any Service. Customer understands that Covad's performance is dependent in part on third party actions, including, without limitation, Customer and its End Users. Accordingly, any performance to be rendered by Covad hereunder shall be appropriately waived or delayed to account for such actions or inactions. Customer shall provide Covad with all information reasonably requested (including, without limitation, information about each End User) in connection with each order placed.
3. CUSTOMER CIRCUITS. Customer must order, and Covad must provide, a Customer Circuit before Covad can supply any End User Circuits or Services through such Customer Circuit. All one-time fees ("One-time Fees") will be due, and all monthly fees will start, for each Customer Circuit upon Covad's notification to Customer that the Customer Circuit is complete.
4. END USER CIRCUITS. Customer must order and Covad must successfully provide, an End User Circuit for each End User before Covad can supply any Services for that End User. Covad and Customer agree that an End User Circuit shall be successfully provided if the maximum throughput of such End User Circuit is 80% of the ordered Service. If Covad is unable to
TERMS AND CONDITIONS
successfully provide an End User Circuit for the ordered service, Covad will offer the End User the maximum available throughput rate and available Service. Covad will notify Customer if End User declined the Circuit, or at what throughput rate the End User accepted the Circuit. All One-time Fees will be due, and all monthly fees will start, for each End User Circuit upon Covad's notification to Customer of successfully providing of such End User Circuit.
5. EQUIPMENT. Customer may choose to have Covad supply and configure the necessary equipment for an End User Circuit and Services at the End User premises. Customer is responsible for changes to any End User premise equipment, software and configuration after Covad completes its service setup. Covad will bill any equipment charges to Customer as part of the One-time Fees for the End User Circuit. Covad shall have no obligation or liability in connection, with any equipment not purchased through Covad and configured by Covad, or for any abuse or misuse of any equipment by any party other than Covad. Covad shall pass through to Customer any warranties from the manufacturers of equipment that Covad installs at Customer's or an End User's premises. Covad shall have no obligation to repair or maintain any equipment, and Customer shall be responsible for seeking warranty and other service directly from the manufacturer. However, Covad shall provide replacement End User premise equipment as described in the Service Level Agreement ("SLA"). If Customer purchases End User premise equipment directly from Covad, it can be returned to Covad only if the equipment is in original working condition and in its original packing within thirty (30) days from Covad's original shipment date. A 25% equipment handling and restocking charge will be charged to the Customer by Covad. Customer should call Covad Customer Care to receive a Return Materials Authorization (RMA) number and to ship the equipment back to Covad. (the Customer shall pay all shipping charges associated with this return).
6. FEES AND PAYMENT TERMS. Customer shall pay Covad the One-time monthly fees and other fees shown in the applicable Pricing Schedule(s) for the setup, operation and providing of Services, Customer Circuits, and End User Circuits. The fees billed to Customer for Services shall not change during the Initial Term (as defined below); thereafter. Covad shall be free to change any of the fees upon notice to Customer. Covad shall invoice Customer once a month, Covad's invoices shall bill Customer for Services one month in advance. For new End Users, setup during a month, Covad's invoice will reflect all One-time Fees, prorated monthly fees for such month and the advance monthly fees. Customer shall pay all invoiced fees no later than thirty days from invoice date. Late payments will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever s lower, and Customer shall pay all collection costs incurred by Covad (including, without limitation, reasonable attorney's fees). In certain situations, Covad may require Customer to deposit funds with Covad to secure payment of fees owed by Customer hereunder. Such deposited funds shall not bear interest If Customer has a bone Fide dispute with any of the amounts on an invoice ("Disputed Amounts"), Customer must pay all amounts not in dispute as set forth above. and provide Covad with a written request for billing adjustment together with all supporting documentation within sixty (60) days from the date of the invoice or customers' fight to billing adjustment shall be waived. In the event of a billing dispute the parties shall promptly resolve the dispute by mutual agreement or by arbitration. Unless otherwise specified by Covad air payments shall be made to Covad Communications Company and mailed to Accounts
TERMS AND CONDITIONS
Receivable Dept., Covad Communications Company, 2330 Central Expressway, Santa Clara, CA 95050. Customer shall be responsible for all applicable Federal, state, and local mandated surcharges, fees, user's fees, universal service contributions and taxes applicable under this Agreement.
7. CANCELLATION AND DISCONNECTION. Customer shall give thirty (30) days written notice to Covad to disconnect a Customer Circuit. All End User Circuits served by a Customer Circuit must be disconnected at the same time or before disconnecting such Customer Circuit. If Customer disconnects a Customer Circuit during the Customer Term for that Customer Circuit, Customer shall incur fees for the balance of the Customer Term. If Customer disconnects Services for an End User during the End User Term, Customer shall incur the lesser of the fees for the balance of the End User Term or the Disconnect Fee set forth in the Pricing Schedule. In any case, Customer will be obligated to pay Service Setup fees and will not be entitled to a refund of any fees at any time. If Customer cancels an End User Circuit prior to setup of such End User Circuit, Customer shall incur the End User Cancellation Fee as set forth in the Price Schedule.
8. SUPPORT AND MAINTENANCE. Customer shall provide all first-level support for all End Users. Covad shall use reasonable commercial efforts to provide second-level support for the Customer Circuits, End User Circuits and Services. Customer understands that Covad may, from time to time, need to interrupt services . for maintenance and other operational reasons, and that Customer shall not receive any compensation for such interruptions. Covad will give Customer reasonable advance notice of all such interruptions.
9. LIMITED PERFORMANCE WARRANTY. Covad warrants to Customer, and only Customer, that the Services shall perform in substantial accordance with the performance criteria set forth in the SLA. This warranty shall be void if: (i) any equipment has been subjected to physical or electrical stress, misuse, neglect, accident or abuse, or damaged by any other external causes; (ii) the Service or any equipment has been repaired or altered by anyone other than Covad or Covad's subcontractors or affiliates, without Covad's express and prior written approval; (iii) the Service or any equipment has been provided by someone other than Covad or Covad's subcontractors or affiliates; or (iv) the Service or any equipment is used in violation of applicable law or in violation of instructions furnished by Covad. During the term of this Agreement. Covad shall supply Customer with the reports specified in the SLA showing performance of the Services. Covad's sole obligation if the Services fail to meet the SLA shall be to use reasonable commercial efforts to correct such failure, provided that Customer promptly reports such failure and the failure can be reproduced by Covad, and the cause of the failure is within Covad's control. Such a failure to meet the SLA shall not be a material breach of this Agreement. If a performance failure occurs that is within Covad's control, and Covad is unable to correct such failure within the time periods set forth in the SLA, then. as Customer's sole remedy, Covad will credit Customer's account with the amounts set forth in the SLA for that type of failure, but only up to the amount paid by Customer for such Services in the month in which such failure occurred. Covad shall have no liability in connection with the future of the Services to meet any transmission speed. throughput rates or other performance criteria.
TERMS AND CONDITIONS
10. YEAR 2000 WARRANTY. Covad warrants to its Customer, and only Customer, that the Services, provided are used correctly and are supplied with dates in proper format, will be capable of processing dates before and after the year 2000. Customer acknowledges that the Services are dependent on third party equipment, software, and systems, including, without limitation, those of local telephone companies and other carriers. Covad makes no representations and will not be liable with respect to Year 2000 compliance of such equipment, software, systems and third parties. Covad's sole obligation for a failure or the Services to comply with the foregoing warranty is to use its best efforts to correct such a failure.
11. WARRANTY DISCLAIMER EXCEPT FOR THE WARRANTIES SET OUT IN SECTIONS 9 AND 10, THE SERVICES, CUSTOMER CIRCUITS, AND END-USER CIRCUITS, AND ALL OTHER PRODUCTS AND SERVICES THEREUNDER ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S AND END USER'S USE THEREOF IS AT ITS OWN RISK. COVAD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COVAD DOES NOT WARRANT THAT THE SERVICES, CUSTOMER CIRCUITS, AND END-USER CIRCUITS WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
12. CUSTOMER REPRESENTATIONS AND WARRANTIES. Customer represents and warrants that: (i) Covad has informed Customer that the Services constitute telecommunications or telecommunications services ("Telecommunication Services") as defined by federal law, and as a result, Covad will assume the obligations of providing such Telecommunications Services, including, billing, collecting and remitting to governmental authorities the applicable taxes such as the universal service tax (collectively, "Telecommunication Obligations"). In the event, Customer chooses to use the Services to provide Telecommunication Services, Customer will provide Covad thirty (30) days prior written notice so that Covad may discontinue such Telecommunication Obligations and Customer will assume such Telecommunication Obligations thereafter); (ii) it shall not, in the ordinary course of its business, when using Services, be able to identify, and distinguish between, packet data transmissions that originate and terminate within the same state (intrastate transmissions), and those packet data transmissions that originate and terminate in different states (interstate transmissions), and states that it is impractical to identify, distinguish and measure its intrastate and interstate transmissions on Covad's network; (iii) Customer estimates in good faith that more than ten percent (10%) of all data packets transmitted through Services will consist of interstate transmissions; and. (iv) it will inform all End Users that Services do not include 911 or other emergency and ancillary services conventionally available from incumbent local phone companies.
13. TERM AND TERMINATION. This Agreement shall remain in effect until terminated as set forth in this Section. The initial term of this Agreement shall be one (1) year (the "Initial Term"). After the Initial Term, either party may ...
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