Private Line Service Level Agreement

GENERAL TERMS AND CONDITIONS
FOR DELIVERY OF SERVICE


These Terms and Conditions for Delivery of Service are applicable to Customer Orders executed by Customer for Services delivered by Level 3 Communications, LLC ("Level 3"), and are incorporated into each Customer Order. The Terms and Conditions include these General Terms and Conditions for Delivery of Service and all terms and conditions attached thereto which relate to any Service provided by Level 3 to Customer. These Terms and Conditions are applicable to sales of Services originating or terminating in the United States.


DEFINITIONS


CONFIDENTIAL INFORMATION: Licensed Software, and all source code, source documentation, inventions, know-how, and ideas, updates and any documentation and information related to the Licensed Software, and any non-public information regarding the business of a party provided to either party by the other party where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information is, by its nature, confidential.


COMMITTED DATA RATE: A commitment made by Customer (where applicable) obligating it to order and pay for a minimum amount of a Level 3 Service expressed in Megabits per second (Mbps).


CUSTOMER: The person, firm or corporation so named on the Customer Order.


CUSTOMER ORDER: A request for Level 3 Service submitted by the Customer for acceptance by Level 3.


FACILITIES: Any and all devices supplied by Level 3 used to deliver Services, including but not limited to all terminal and other equipment, wires, lines, circuits, ports, routers, switches, channel service units, data service units, cabinets, racks, private rooms and the like. Facilities shall not include any such devices sold to Customer by Level 3 and paid for by Customer or owned by Customer or any third party.


LICENSED SOFTWARE: Computer software, in object code format only, the use of which is required for use of Service ordered by Customer.


PREMISES: The location(s) occupied by Customer or its end users to which Service will be delivered by Level 3. Premises does not include Space as defined below.


REVENUE COMMITMENT: A commitment made by Customer obligating it to order and pay for a minimum volume of Services during an agreed term.


SERVICE: A service offered by Level 3 pursuant to a Customer Order.


SPACE: The location(s) within Level 3 gateways into which Customer is permitted to colocate telecommunications or internet equipment pursuant to a colocation Customer Order accepted by Level 3.


TARGET INSTALL DATE: A written communication from Level 3 to Customer indicating the date upon which it is anticipated that Services will be available to Customer.


SECTION 1. CUSTOMER ORDERS


1.1 SUBMISSION OF CUSTOMER ORDERS. To order any Service, Customer may submit to Level 3 an order form for Services, completed with Level 3's assistance ("Customer Order") requesting the provision of Service. Level 3's delivery of a Target Install Date respecting such Service shall constitute Level 3's acceptance of the Customer Order. The Customer Order and its backup detail shall set forth the Service, the Premises and/or Space, the prices to be charged for Services and any applicable term and/or Revenue Commitment.


1.2 UNDERTAKING OF LEVEL 3. If Level 3 issued a Target Install Date respecting Services, Level 3 will furnish such Services in accordance with the Terms and Conditions and any Customer Orders.


SECTION 2. BILLING AND PAYMENT


2.1 PAYMENT OF BILLS. Level 3 bills all charges incurred by Customer on a monthly basis. Level 3 bills in advance for all Services to be provided during the ensuing month, except for charges which are dependent upon usage of Service, which are billed in arrears. Billing for partial months will be prorated based on a Calendar month. All bills are due upon receipt, and become past due thirty (30) days later. The unpaid balance of any past due bills shall bear interest at a rate of 1.5% per month (prorated on a daily basis beginning on the past due date), or the highest rate allowed by law, whichever is less.


To the extent Customer orders any service designated as "Burstable," the following billing method shall apply: Customer will be billed as set forth above for its Committed Data Rate. In addition, over each month, Customer's usage of the Service will be sampled by Level 3 in five minute inbound and outbound averages. At the end of the month, the top ten percent of the


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2 inbound and outbound averages shall be discarded. The highest of the resulting ninetieth percentile for inbound and outbound traffic will be compared to the Committed Data Rate. If the ninetieth percentile of either inbound or outbound traffic is higher than the Committed Data Rate, Customer will, in addition to being billed for its Committed Data Rate, be billed for its utilization of the Service that exceeds their Committed Data Rate, which shall be billed at the contracted-for price per Mbps.


2.2 TAXES AND FEES. Except for taxes based on Level 3's net income and ad valorem, personal and real property taxes imposed on Level 3's property, Customer shall be responsible for payment of all sales, use, gross receipts, excise, access, bypass, franchise or other local, state and federal taxes, fees, charges, or surcharges, however designated, imposed on or based upon the provision, sale or use of the Services.


2.3 REGULATORY AND LEGAL CHANGES. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, Level 3 and Customer agree to negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within thirty (30) days after Level 3's delivery of written notice requesting renegotiation, then (a) Level 3 may pass such increased costs through to Customer, and (b) Customer may terminate the affected Customer Order without termination liability upon sixty (60) days' prior written notice.


2.4 DISPUTED BILLS. In the event that Customer disputes any portion of a Level 3 bill, Customer must pay the undisputed portion of the bill and submit a written claim for the disputed amount. All claims must be submitted to Level 3 within sixty (60) days of receipt of billing for those Services. Customer acknowledges that it is able to and that it is reasonable to require Customer to dispute bills within that time, and Customer therefore waives the right to dispute charges not disputed within the time frame set forth above.


2.5 CREDIT APPROVAL AND DEPOSITS. Customer shall provide Level 3 with credit information as requested, and delivery of Service is subject to credit approval. Level 3 may require Customer to make a deposit (which will not exceed Customer's estimated charges for two months' Service) as a condition to Level 3's acceptance of any Customer Order, or as a condition to Level 3's continuation of Service, which deposit shall be held by Level 3 as security for payment of Customer's charges. At such time as the provision of Service to Customer is terminated, the amount of the deposit will be credited to Customer's account and any credit balance which may remain will be refunded.


2.6 FRAUDULENT USE OF SERVICES. Customer is responsible for all charges attributable to Customer incurred respecting the Services, even if incurred as the result of fraudulent or unauthorized use of the Services, unless Level 3 has actual knowledge of the same and fails to notify Customer thereof. Level 3 may, but is not obligated to, detect or report unauthorized or fraudulent use of Services.


SECTION 3. DISCONTINUANCE OF CUSTOMER ORDERS


3.1 DISCONTINUANCE OF CUSTOMER ORDER BY LEVEL 3. Level 3 may terminate any Customer Order and discontinue Service without liability:


A. If Customer fails to pay a past due balance for Services within thirty (30) days of written notice thereof provided by Level 3;


B. If Customer violates any law, rule, regulation or policy of any government authority having jurisdiction over the Services; if Customer makes a material misrepresentation in any submission of information in a Customer Order or other submission of information to Level 3; if Customer engages in any fraudulent use of the Services; or if a court or other government authority having jurisdiction over the Services prohibits Level 3 from furnishing the Services;


C. If Customer fails to cure its breach of any provision of these Terms and Conditions or any Customer Order within thirty (30) days written notice thereof provided by Level 3;


D. If Customer files bankruptcy, for reorganization, or fails to discharge an involuntary petition therefore within sixty (60) days;


E. If Customer's use of the Services materially exceeds Customer's credit limit, unless within fourteen (14) days written notice thereof by Level 3, Customer provides adequate security for payment for the Services.


3.2 EFFECT OF DISCONTINUANCE. Upon Level 3's discontinuance of Service to Customer, Level 3 may, in addition to all other remedies that may be available to Level 3 at law or in equity, assess and collect from Customer any applicable termination charge.


3.3 RESUMPTION OF SERVICE. If Service has been discontinued by Level 3 and Customer requests that Service be restored, Level 3 shall have the sole and absolute discretion to restore such Service. Nonrecurring charges, with the exception of any charges for the build-out of Colocation Space already paid by Customer, may apply to restoration of Service.


3.4 DISCONTINUANCE OF CUSTOMER ORDER BY CUSTOMER. Customer shall have the right to terminate any Customer Order and discontinue Service prior to the end of the agreed term with respect to which a Customer Order has been executed without payment of any applicable termination charge if: (i) such Service is


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Unavailable (as defined below) on two or more separate occasions of more than eight (8) hours each in any 30 day period, and (ii) following written notice thereof from Customer to Level 3, Level 3 has an Unavailability event of more than 12 hours at any time within the 12 month period immediately following said notice. For purposes of the foregoing, Unavailability shall mean the period of time beginning when Customer reports an outage in its Service to the Level 3 Customer Service and Support Organization (1-877-4LEVEL3) and shall end when the Service is operative. Unavailability shall not apply to any outage which is caused by Customer, Customer's end users or any third party, which results from failure of power or equipment provided by Customer or others, which occurs or continues during any period in which Level 3 is not given access to the Premises or the Space, or which results from maintenance events. Customer must exercise its right to terminate under this Section, in writing, no later than thirty (30) days after the Unavailability event giving rise to a right of termination hereunder.


SECTION 4. DELIVERY OF SERVICES


4.1 LEVEL 3 ACCESS TO PREMISES AND SPACE. Customer shall allow Level 3 access to the Premises to the extent reasonably determined by Level 3 for the installation, inspection and scheduled or emergency maintenance of Facilities relating to the Service. Level 3 shall notify Customer two (2) business days in advance of any regularly scheduled maintenance that will require access to the Premises. Level 3 retains the right to access any Space for any legitimate business purpose.


4.2 LEVEL 3 FACILITIES. Level 3 will use reasonable efforts to provide and maintain the Facilities in good working order. Customer shall not and shall not permit others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any of the Facilities. If the same occurs without first obtaining Level 3's written approval, in addition to being a breach by Customer of Customer's obligations hereunder, Customer shall (1) pay Level 3 the cost to repair any damage to the Facilities caused thereby; and (2) be responsible for the payment of service charges in the event that maintenance or inspection of the Facilities is required as a result of Customer's breach of this Section. In no event shall Level 3 be liable to Customer or any other person for interruption of Service or for any other loss, cost or damage caused or related to improper use or maintenance of the Facilities, unless the same is caused by the negligence of Level 3, and then only to the extent of Section 5.2.


4.3 TITLE AND POWER. Title to all Facilities (except as otherwise agreed) shall remain with Level 3. The electric power consumed by such Facilities on the Premises shall be provided by and maintained at the expense of Customer. Electric power to the Space shall be provided by Level 3.


4.4 CUSTOMER-PROVIDED EQUIPMENT. Level 3 may install certain Customer provided communications equipment upon installation of Service and the Facilities, but unless otherwise agreed by Level 3 in writing, Level 3 shall not thereafter be responsible for the operation or maintenance of any Customer provided communication equipment. Level 3 shall not be responsible for the transmission or reception of signals by Customer-provided equipment or for the quality of, or defects in, such transmission.


4.5 REMOVAL OF FACILITIES. Customer agrees to allow Level 3 to remove all Facilities from the Premises:


A. after termination of the Service in connection with which the Facilities were used; and


B. for repair, replacement or otherwise as Level 3 may determine is necessary, but Level 3 shall use reasonable efforts to minimize disruptions to the Service caused thereby.


At the time of such removal, the Facilities shall be in the same condition as when installed, normal wear and tear excepted. Customer shall reimburse Level 3 for the depreciated cost of any Facilities not in such condition.


4.6 SERVICE SUBJECT TO AVAILABILITY. The furnishing of Service is subject to the availability thereof, on a continuing basis, and is limited to the capacity of Level 3 to provide the Service as well as the capacity which Level 3 may obtain from other carriers to furnish Service from time to time as required at the sole discretion of Level 3. Nothing in these Terms and Conditions shall be construed to obligate Customer to submit, or Level 3 to accept, Customer Orders. In the event Service becomes unavailable pursuant to this paragraph 4.6, Customer shall have the rights set forth in Section 3.4 of these Terms and Conditions.


SECTION 5. OBLIGATIONS AND LIABILITY LIMITATION


5.1 OBLIGATIONS OF THE CUSTOMER. Customer shall be responsible for:


A. The Payment of all charges applicable to the Service;


B. Damage or loss of the Facilities installed on the Premises or in the Space (unless caused by the negligence or willful misconduct of the employees or agents of Level 3);


C. Providing the level of power, heating and air conditioning necessary to maintain the proper environment on the Premises for the provision of Service;


D. Providing a safe place to work and complying with all laws and regulations regarding the working conditions on the Premises;


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4 E. Granting Level 3 or its employees access to the Premises as set forth in Section 4.1 of these Terms and conditions; and


F. Keeping Level 3's facilities located on Premises free and clear of any liens or encumbrances.


5.2 LIABILITY. Except as provided in Section 8.4, the liability of Level 3 for damages arising out of the furnishing of or the failure to furnish Service, including but not limited to mistakes, omissions, interruptions, delays, tortious conduct, representations, errors, or other defects, whether caused by acts of commission or omission, shall be limited to the extension of credit allowances or refunds due under any applicable Service Level Agreement. Except as provided in Section 8.4, the extension of such credit allowances or refunds shall be the sole remedy of Customer and the sole liability of Level 3.


5.3 NO SPECIAL DAMAGES. Notwithstanding any other provision hereof, neither party shall be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including but not limited to damages for lost profits or lost revenues), whether or not caused by the acts of omissions or negligence of its employees or agents, and regardless of whether such party has been informed by the possibility of likelihood of such damages.


5.4 DISCLAIMER OF WARRANTIES. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN ANY APPLICABLE SERVICE LEVEL AGREEMENT.


SECTION 6. SOFTWARE TERMS


6.1 LICENSE. If and to the extent that Customer requires the use of Licensed Software in order to use the Service supplied under any Customer Order, Customer shall have a nonexclusive, nontransferable (except pursuant to paragraph 8.2 hereof) license to use such Licensed Software only and solely to the extent required to permit delivery of the Service. Customer may not claim title to or any ownership interest in any Licensed Software (or any derivations or improvements thereto), and Customer shall execute any documentation reasonably required by Level 3 to memorialize Level 3's existing and continued ownership of the Licensed Software.


6.2 RESTRICTIONS. Customer agrees that it shall not:


A. copy the Licensed Software except for emergency backup purposes or as permitted by the express written consent of Level 3;


B. reverse engineer, decompile or disassemble the Licensed Software;


C. sell, lease, license or sublicense the Licensed Software; or


D. create, write or develop any derivative software or any other software program based on the Licensed Software.


SECTION 7. CONFIDENTIAL INFORMATION


7.1 DISCLOSURE AND USE. Any Confidential Information disclosed by either party shall be kept by the receiving party in strict confidence and not disclose to any third party (except as authorized by these Terms and Conditions) without the disclosing party's express written consent. Each party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case will the degree of care be less than reasonable care.


7.2 RESTRICTED USE. Each party agrees:


A. to use Confidential Information only for the purpose of performance of any Customer Order or as otherwise expressly permitted by these Terms and Conditions;


B. not to make copies of Confidential Information or any part thereof except for purposes consistent with these Terms and Conditions; and


C. to reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices (whether of disclosing party or a third party) as are contained in or on the original or as the disclosing party may otherwise reasonably request.


7.3 EXCEPTIONS. Notwithstanding the foregoing, each party's confidentiality obligations hereunder shall not apply to information which:


A. is already known to the receiving party;


B. becomes publicly available without fault of the receiving party;


C. is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party;


D. is developed independently by the receiving party without use of the disclosing party's Confidential Information;


E. is required to be disclosed by law.


7.4 PUBLICITY. This agreement grants no right to use any party's or its affiliates' trademarks, service marks or trade names or to otherwise refer to the other party in any marketing, promotional or advertising materials or activities. Neither party shall issue any publication or press release relating to, or otherwise disclose the existence of, or the terms and conditions of any contractual relationship between Level 3 and Customer, except as may be required by law.


7.5 REMEDIES. Notwithstanding any other section of these Terms and Conditions, the non-beaching party


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shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief. Nothing stated herein shall be construed to limit any other remedies available to the parties.


7.6 SURVIVAL. The obligations of confidentiality and limitation of use shall survive the termination of any applicable Customer Order.


SECTION 8. GENERAL TERMS


8.1 FORCE MAJEURE. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party's reasonable control, including but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties. In the event any of the foregoing occur and Level 3 is unable to deliver the Service for fourteen (14) consecutive days, Customer shall not be obligated to pay Level 3 for the affected Service for so long as Level 3 is unable to delivery them, provided, however, that the term of the Customer Order respecting those Services shall be extended for a period of time equal to the period of time for which Level 3 was unable to provide and Customer was not required to pay for the affected Service.


8.2 ASSIGNMENT OR TRANSFER. Except with respect to a merger or sale of substantially all of Customer's Assets, Customer may not transfer, sublease or assign the use of Service without the express prior written consent of Level 3, and then only when such transfer or assignment can be accomplished without interruption of the use or location of Service. Level 3 will not unreasonably withhold its consent. These Terms and Conditions shall apply to any transferees or assignees. Customer shall remain liable for the payment of all charges due under each Customer Order.


8.3 NOTICES. Notices hereunder shall be deemed properly given when delivered, if delivered in person, or when sent via facsimile, overnight courier, electronic mail or when deposited with the U.S. Postal Service, (a) with respect to Customer, the address listed on any Customer Order, or (b) with respect to Level 3, to: Contracts Administration, Level 3 Communications, LLC, 1450 Infinite Drive, Louisville, CO 80027. Customer shall notify Level 3 of any changes to its addresses listed on any Customer Order.


8.4 INDEMNIFICATION BY LEVEL 3. Level 3 shall indemnify, defend and hold Customer harmless from any claim, loss, damage, expense or liability (including attorney's fees and court costs) (hereinafter "Claims") made against Customer for property damage, patent infringement or personal injury caused by Level 3's negligence or willful misconduct.


8.5 INDEMNIFICATION BY CUSTOMER. Customer shall indemnify, defend and hold Level 3 harmless from Claims (including Claims for patent infringement) (i) made against Level 3 by any end user of Customer in connection with the delivery or consumption of Service, (ii) made against Level 3 arising out of any commission or negligent omission by Customer in connection with the Service, or (iii) arising from Customer's negligence or willful misconduct.


8.6 APPLICATION OF TARIFFS. Level 3 may elect or be required to file with the appropriate regulatory agency tariffs respecting the delivery of certain Service. In the event that such tariffs are filed respecting Service ordered by Customer, then (to the extent such provisions are not inconsistent with the terms of a Customer Order) the terms set forth in the applicable tariff shall govern Level 3's delivery of, and Customer's consumption or use of, such Service.


8.7 CONTENTS OF COMMUNICATIONS. Level 3 does not monitor and shall have no liability or responsibility for the content of any communications transmitted via the Service, and Customer shall hold Level 3 harmless from any and all claims (including claims by governmental entities seeking to impose penal sanctions) related to such content attributable to Customer or its agents, employees or end users.


8.8 ENTIRE UNDERSTANDING. These Terms and Conditions, including any Customer Orders executed hereunder, constitute the entire understanding of the parties related to the subject matter hereof. In the event of any conflict between these Terms and Conditions and the terms and conditions of any Customer Order, these Terms and Conditions shall control. These Terms and Conditions shall be governed and construed in accordance with the laws of the state of Colorado.


8.9 NO WAIVER. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).


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ADDITIONAL TERMS AND CONDITIONS
FOR PRIVATE LINE SERVICE


The following additional terms and conditions are applicable where, pursuant to a Customer Order, Customer orders metropolitan (local), city to city (within the United States) and international (from the United States to another country) private line, non-switchable circuits (the "Private Line Services").


1. Any state or federal tariffs applicable to the Private Line Services to be delivered under any Customer Order are incorporated into the terms thereof. Level 3's pricing to Customer for Private Line Services may, if required, be subject to PUC or other regulatory approval.


2. The nonrecurring charges and monthly recurring rates for the Private Line Services provided by Level 3 are shall be set forth in each Customer Order.


3. The rates and other charges set forth in each Customer Order are established in reliance on the term commitment made therein, and Customer shall pay the same in accordance therewith. In the event that Customer terminates Services ordered in any Customer Order which is accepted by Level 3 or in the event that the delivery of Services is terminated due to a failure of Customer to satisfy the requirements set forth in these Terms and Conditions prior to the end of the agreed term, Customer shall (unless Customer has made a Revenue Commitment) pay a termination charge equal to the percentage of the monthly recurring charges for the terminated Private Line Service calculated as follows:


A. 100% of the monthly recurring charge that would have been incurred for the private line service for months 1-12 of the agreed term; plus


B. 75% of the monthly recurring charge that would have been incurred for the Private Line Service for months 13-24 of the agreed term; plus


C. 50% of the monthly recurring charge that would have been incurred for the Private Line Service for months 25 through the end of the agreed term.


In the event that a Revenue Commitment is made and is then being satisfied by Customer. Customer may terminate, rearrange or reconfigure the Private Line Services ordered under a Customer Order without payment of the termination charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible for payment of Level 3's then-current standard nonrecurring charges applicable to such termination, rearrangement or reconfiguration.


4. Level 3 makes the Service Level Agreements in the attached Exhibit "A" respecting Private Line Service.


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7
Standard Service Level Agreement (SLA)


INTERNATIONAL / US NATIONAL PRIVATE LINE


International/National Private Line service will be backed by a Standard Service Level Agreement that has two components: a Service Delivery SLA and a Network Performance SLA.


NOTE: The total number of credits per month for both Service Delive ...