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EXHIBIT 10.2
EXECUTION COPY
DIGITAL SERVICE AGREEMENT
This Digital Service Agreement (the "Agreement") is entered into as of August
5, 1994, by and between MSM Associates, Limited Partnership, a Delaware limited
partnership ("Lessor"), and Allnet Communications Services, Inc., a Michigan
corporation ("Lessee").
In consideration of the mutual promises set forth below and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
(a) "Accepted" shall mean, with respect to a Circuit, that Lessee has
performed whatever tests it deems necessary to confirm that such Circuit
operates in accordance with MCI's Specifications and has so informed Lessor. A
Circuit shall be deemed to be Accepted by Lessee 48 hours after notice from
Lessor to Lessee that such Circuit is Available, unless Lessee has theretofore
given notice to Lessor that such Circuit does not operate in accordance with
MCI's Specifications.
(b) "Affiliate" See Section 16(b).
(c) "Available" shall mean, with respect to any Circuit, that all
necessary equipment with respect to such Circuit has been installed, connected,
tested in accordance with MCI's acceptance testing criteria and confirmed by
Lessor to be operating in accordance with MCI's Specifications.
(d) "Activation Date" shall mean, with respect to any Circuit, the date
such Circuit is first made Available to, and Accepted by, Lessee.
(e) "Circuit" shall mean a DS-3.
(f) "Circuit Lease Term" shall mean, with respect to any Circuit, the term
in months for which Lessee desires to obtain Service on such Circuit from the
Activation Date of such Circuit, as specified in the Purchase Order for such
Circuit.
(g) "Circuit Mileage" shall mean, with respect to any Circuit, the length
of such Circuit in airline miles computed according to industry standard V&H
coordinates, as specified in the Purchase Order for such Circuit.
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(h) "City Pair" shall mean, with respect to any Circuit, the two cities in
which such Circuit terminates, as specified in the Purchase Order for such
Circuit.
(i) "DS-0 Circuit Mile Rate" shall mean, with respect to any Circuit, the
rate, if any, so designated with respect to such Circuit in the Purchase Order
pursuant to which such Circuit is ordered.
(j) "DS-3" shall mean a fiber optic circuit leased by Lessor from MCI
pursuant to the MCI Agreement meeting MCI's Specifications.
(k) "MCI" shall mean MCI Telecommunications Corporation, a Delaware
corporation.
(l) "MCI Agreement" shall mean that certain Construction and Use Agreement
dated as of July _____, 1994 between Lessor and MCI.
(m) "MCI's Specifications" shall mean the technical specifications set
forth in the MCI Agreement for the MSM Capacity (as such term is defined
therein) as set forth in Exhibit G thereto.
(n) "Monthly Lease Rate" shall mean, with respect to any Circuit, the
amount so designated in the Purchase Order pursuant to which such Circuit is
ordered. In the event no such amount is so designated, such term shall mean
the product of (i) 672, (ii) the DS-0 Circuit Mile Rate for such DS-3 and (iii)
the Circuit Mileage for such DS-3.
(o) "Purchase Order" shall mean any written purchase order in
substantially the form as those attached hereto as Exhibit B made hereunder by
Lessee and accepted by Lessor.
(p) "Requested Service Commencement Date" shall mean, with respect to any
Circuit, the date Service on such Circuit is requested by Lessee to commence as
specified in the Purchase Order for such Circuit.
(q) "Service" shall mean the digital telecommunications transmission
service leased by Lessor from MCI pursuant to the MCI Agreement and provided by
Lessor to Lessee hereunder. Service hereunder specifically does not include
leased circuit capacity and related support provided by Lessor to Lessee on
Lessor's Fiber Optic System (as described in that certain Amended & Restated
Fiber Optic Lease Agreement between Lessor and Lessee dated August 1, 1994) in
Michigan.
(r) "Support" See Section 2(g).
2. Scope and Lease Rates. Lessor shall provide Service to Lessee upon the
terms and conditions set forth below:
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(a) Service shall be provided with respect to each Circuit set forth in
each Purchase Order between Lessor's locations in each city of the City Pair
specified in such Purchase Order with respect to such Circuit.
(b) Lessor shall provide maintenance for all digital transmission
equipment owned by Lessor used in connection herewith. MCI shall provide
maintenance for all its digital transmission equipment used in connection
herewith.
(c) Lessor shall use its best efforts consistent with its obligations to
its other customers and availability of Circuits from MCI under the MCI
Agreement to provide Service on each Circuit for which it has accepted a
Purchase Order, commencing on the Requested Service Commencement Date specified
with respect to such Circuit.
(d) Except as otherwise provided herein, Lessor shall provide Service on
each Circuit ordered hereunder from the Activation Date of such Circuit for the
Circuit Lease Term of such Circuit.
(e) Lessee hereby makes, and Lessor hereby accepts, the Purchase Order
attached hereto as Exhibit A for Service on Lessor's available DS-3's from MCI
under the MCI Agreement between the City Pairs listed therein.
(f) Each additional DS-3 provided by Lessor hereunder shall have a DS-0
Circuit Mile Rate of: (i) * from the first Activation Date
of any Circuit hereunder; and (ii) a mutually agreeable rate thereafter.
(g) Lessee may, subject to availability, order other services or
associated customer maintenance support (collectively "Support") offered by
Lessor as set forth in Exhibit C.
3. Payments.
(a) Lessee agrees to pay in advance to Lessor each month during the term
of this Agreement the Monthly Lease Rate for each Circuit ordered by Lessee
hereunder which has been made Available to, and Accepted by, Lessee, and the
applicable charges, including installation charges, if any, for any associated
services listed in Exhibit C hereto delivered to Lessee.
(b) Lessor's invoices for amounts payable hereunder shall be due *
after Lessee's receipt of invoice. The first such invoice shall be for the
first two months' Service and each monthly invoice thereafter shall be for the
following month.
(c) In the event the Activation Date for a Circuit is on any day other
than the first day of the month, the Monthly Lease Rate for that month shall be
pro-rated according to the number of days for which such Circuit was activated.
* Confidential Treatment Applied For
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(d) In case an amount is or becomes subject to dispute, Lessee shall
provide written notice to Lessor of such dispute within * following
Lessee's receipt of the invoice. In the event that any undisputed portion of
such invoice remains unpaid after * following Lessee's receipt of the
invoice, such undisputed portion of such invoice shall be subject to a late
payment charge equal to the lesser of (1) one and one-half percent of the
unpaid balance per month or (2) the maximum rate allowed under applicable state
law. In the event that any undisputed portion of any invoice is unpaid thirty
days following the date of the invoice for such payment, in addition to any
other remedies available to Lessor at law or otherwise, Lessor may terminate
the Service after providing Lessee written notice and allowing Lessee a 15-
calendar-day period to remit payment.
4. Term. The term of this Agreement shall commence upon the date hereof and
shall continue until the end of the Circuit Lease Term of each of the Circuits
ordered hereunder. *
5. Termination.
(a) Lessee may terminate Service with respect to any Circuit prior to
expiration of the Circuit Lease Term for the Circuit upon * prior
written notice thereof to Lessor and payment of all termination charges set
forth below. Such termination charges shall include:
(i) In the event such termination occurs prior to the Activation Date
specified with respect to such Circuit, all nonrecoverable costs of the
implementation of, and expenditures or liabilities reasonably incurred and
directly connected with, the provision of Service, including, but not limited
to, all professional, consulting and other costs incurred by Lessor in
furtherance of implementing such Service provided that total costs do not
exceed one month's recurring cost for the Circuit; and
(ii) In the event such termination occurs at or after the Activation Date
specified with respect to such Circuit, Lessee shall pay all charges hereunder
for the period during which Service is rendered on such Circuit. If Service on
a Circuit is terminated prior to the expiration of the Circuit Lease Term for
such Circuit, Lessor shall make its best efforts to lease Service on such
Circuit at no less than the Monthly Lease Rate for such Circuit. In the event
Lessor cannot lease Service on such Circuit on the same or substantially
similar terms and conditions as set forth herein, Lessee shall be liable to
Lessor for payment (1) for the total amount due through the end of the term of
the Circuit Lease
* Confidential Treatment Applied For
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Term for such Circuit with respect to such Circuit less (2) the total amount
collected by Lessor from any other lessee with respect to such Circuit.
(b) Lessee shall give written notice to Lessor of any material breach in
performance hereunder. Lessor shall have * after such notice to cure
such breach. If after such * period, Lessor fails to cure such breach,
including but not limited to, compliance with the material technical and
operational MCI Specifications, Lessee may terminate Service on the affected
Circuits. In the event of such termination, Lessee's liability with respect to
such Circuits shall be limited to the Monthly Lease Rate for the affected
Service which was properly rendered prior to the effective date of such
termination.
(c) In the event Lessor fails to provide (after using its best efforts as
set forth in Section 2(c)) the Service with respect to any Circuit within *
* of the Requested Service Commencement Date for such Circuit, then
Lessee, at its option, may terminate that Service on the affected Circuit
without any further liability of either party whatsoever with respect to such
Circuit. In the event any Circuit ordered hereunder is not made available by
MCI, Lessor may terminate this Agreement with respect to such Circuit without
liability to Lessee.
6. Force Majeure. Lessor shall not be liable for any interruptions of
Service which are solely attributable to interruptions of Service by MCI or to
causes outside Lessor's reasonable control, including fires, floods, national
emergencies, insurrections, riots, civil disorders, wars, or acts of God so
long as it uses its best efforts to restore Service within * after the
initiation of the interruption. Should Lessor fail to restore the service
within such * Lessee may, as its sole remedy hereunder, terminate
the affected Service without further liability for the termination of such
affected Service.
7. Allowance for Service Outage Periods.
(a) A Circuit shall be deemed to be in an outage condition under this
Agreement if, while Lessee is using or attempting to use such Circuit, such
Circuit loses continuity and fails to comply with MCI's Specifications. An
outage period begins when a report is received by Lessor's Customer Service
Group from Lessee by telephone that Service has been interrupted and that such
Circuit is released for repair. An outage period ends when Lessor notifies
Lessee by telephone that Service has been restored to the level set forth in
MCI's Specifications.
(b) A credit for each outage period shall be allowed and calculated as
follows:
(i) Lessee is credited for any outage period at the rate of 1/1440 of the
monthly rate or charge applicable to the actual Service which is subject to the
outage period for each 1/2 hour or major fraction thereof that an outage period
continues.
* Confidential Treatment Applied For
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(ii) No credit shall be allowed with respect to any period during which
Lessee fails to afford access to any facilities provided by Lessor for the
purpose of investigating and correcting an interruption to Service.
(iii) The Monthly Lease Rates used to determine any credit hereunder
shall be the then current Monthly Lease Rates being assessed.
(iv) In no event shall any credit be allowed hereunder (1) in excess of
the then current Monthly Lease Rate for the applicable Circuit or (2) with
respect to any Circuit for which Lessee (A) fails to make or (B) is excused
from making any payment because of operation of law or any other reason.
(c) Calculations of credits shall be based upon Lessor's Customer Service
Group Log maintained in Lessor's Network Status Center.
(d) No credit allowance will be made for outage periods:
(i) caused by Lessee;
(ii) caused by the failure of equipment or systems provided by Lessee or
persons other than Lessor (unless Lessor has engaged such persons to provide
the equipment or systems which failed), in particular, any provider of local
access service;
(iii) occurring with respect to a Circuit released by Lessee to Lessor to
perform maintenance, to make rearrangements, or to implement an order for a
change in the Circuit during the time that was agreed with Lessee prior to the
release of such Circuit (thereafter, a credit allowance as set forth above will
be applied), or
(iv) occurring with respect to a Circuit which Lessee elects not to
release for testing or repair and continues to use on an impaired basis.
(e) The credit provided for hereunder shall be Lessor's sole liability and
Lessee's sole remedy in the event of any outage periods or interruption of
Service, except as set forth in Section 5.
(f) In the event of an outage period that is required for maintenance by
Lessor, Lessor shall use its best efforts to give Lessee notice thereof by
telephone so that adequate alternative measures can be taken by Lessee. Lessor
will use its best efforts to schedule such Service interruptions on weekends
between midnight and 3:00 a.m. Service credits will not apply to scheduled
Service interruptions. Lessor shall use all reasonable efforts to give Lessee
two weeks' notice of scheduled maintenance when possible but in no event less
than 72 hours where such maintenance will require a Service interruption.
8. Representations and Warranties of Lessor and Lessee.
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(a) Lessor hereby represents and warrants to Lessee that this Agreement
has been validly authorized, executed and delivered by Lessor and represents a
valid and binding obligation of Lessor.
(b) Lessee hereby represents and warrants to Lessor that this Agreement
has been validly authorized, executed and delivered by Lessee and represents a
valid and binding obligation of Lessee.
(c) Except as set out in Paragraphs (a) and (b) above:
(i) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR USE ARE EXPRESSLY
EXCLUDED AND DISCLAIMED. LESSEE ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY
WRITTEN OR ORAL REPRESENTATIONS BY LESSOR CONCERNING THE SUBJECT OF THIS
AGREEMENT OTHER THAN THOSE EXPRESSED IN THIS AGREEMENT;
(ii) EXCEPT TO THE EXTENT THE INDEMNIFICATION PROVIDED IN SECTION 16 MAY
INCLUDE COVERAGE OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE OR
CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING BUT NOT LIMITED
TO, DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST
OF CAPITAL, OR CLAIMS OF CUSTOMERS FOR SERVICE INTERRUPTIONS OR TRANSMISSION
PROBLEMS, OCCASIONED BY ANY DEFECT IN THE SERVICE PROVIDED HEREUNDER, DELAY IN
AVAILABILITY OF THE SERVICE PROVIDED HEREUNDER, FAILURE OF THE SERVICE PROVIDED
HEREUNDER OR ANY OTHER CAUSE WHATSOEVER; and
(iii) LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, TO
ANY OTHER PERSON OR ENTITY CONCERNING THE SERVICE PROVIDED HEREUNDER AND LESSEE
SHALL DEFEND AND INDEMNIFY LESSOR FROM ANY CLAIMS MADE UNDER ANY WARRANTY OR
REPRESENTATION BY LESSEE TO ANY THIRD PARTY.
9. FCC Permits, Authorization and Filings. Lessor shall take all necessary
and appropriate steps, as soon as possible, to procure from the Federal
Communications Commission the necessary authorizations, if any, to deliver
Service hereunder to Lessee and whatever approvals are necessary from any other
federal or state agency. In the event that Lessor cannot obtain all necessary
federal, state or local authority to provide Service hereunder, Lessor shall
promptly give written notice thereof to Lessee, and such notice shall
constitute termination without liability of either party hereto of all
obligations hereunder.
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10. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the validity and performance hereof, shall be governed by
the internal laws, and not the conflicts law, of the State of Michigan.
11. Convenience of Titles. Headings contained herein are for convenience
only and do not modify, enlarge or limit the scope of the body of the sections
hereof in any manner.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given as of the date of delivery,
facsimile transmission or mailing, and if mailed, first class postage prepaid,
certified or registered mail, return receipt requested to the following
persons, unless contrary instructions are given by the parties in writing:
If to Lessee: Allnet Communications Services, Inc.
30300 Telegraph Road, Suite 350
Bingham Farms, Michigan 48025-4510
Attention: Vice President, ATC
and a copy to: Allnet Communication Services, Inc.
30300 Telegraph Rd., Suite 350
Bingham Farms, MI 48025-4510
Attention: General Counsel
If to Lessor: MSM Associates, Limited Partnership
5000 Plaza on the Lake, Suite 200
Austin, Texas 78746
Attention: Vice President, Sales and
Marketing
13. Waiver of Breach or Violation not Deemed Continuing. The waiver by
either party hereto of a breach or violation of any provision of this Agreement
shall not operate as or be construed to be a waiver of any subsequent breach
hereof.
14. Bankruptcy. In the event of the bankruptcy of either party hereto or if
either party hereto shall make an assignment for the benefit of creditors or
take advantage of any act or law for relief of debtors, the other party to this
Agreement shall have the right to terminate this Agreement without further
obligation or liability on its part.
15. Limits of Liability. Lessor's sole duty under this Agreement shall be
the provision of Service to Lessee under the terms and conditions set forth
herein. Lessee's
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sole remedy for Lessor's failure to perform its obligations hereunder shall be
Lessee's right to credit with respect to outage periods.
16. Indemnity.
(a) Each party hereto and its officers, agents and employees engaged in
performance under this Agreement, shall at no time be deemed to be performing
as agents or employees of the other party, and any acts, errors or omissions of
such party, officers, agents and employees shall not be deemed to be those of
the other party.
(b) Each party hereto shall indemnify and hold the other and/or all of its
officers, agents, servants, subcontractors, subsidiaries, employees and other
affiliates (collectively "Affiliates"), and each of them, harmless, from and
against any and all losses, claims, damages, liabilities, costs, attorneys'
fees and expenses ("Claims") imposed upon either party by reason of damages to
property or injuries, including death, as a result of an intentional or a
negligent act or omission on the part of the indemnifying party or its
Affiliates in connection with the performance of this Agreement.
(c) In the event any action shall be brought against the indemnified
party, such party shall immediately notify the indemnifying party in writing,
and the indemnifying party, upon the request of the indemnified party, shall
assume the defense thereof on behalf of the indemnified party and its
Affiliates and shall pay all expenses and satisfy all judgments which may be
incurred by or rendered against the indemnified party or its Affiliates in
connection therewith, provided that the indemnified party shall not be liable
for any settlement of any such action effected without its written consent.
17. Assignment. Neither party hereto may assign this Agreement without the
express written consent of the other party hereto. Consent by either party
shall not be unreasonably withheld. Provided further, any language to the
contrary notwithstanding, either party may assign the Agreement to a parent,
subsidiary or affiliate corporation without the consent of the other party.
Nothing contained herein shall be construed to release the assigning party from
any obligations or liabilities unless the other party expressly consents to
such release.
18. Confidential Relationship. Unless required by law, the parties hereto
shall not disclose, duplicate, or copy, or use for any purpose other than the
performance of this Agreement, and shall treat as confidential and as
proprietary all information, specifications, drawings, blueprints,
nomenclature, samples, and models supplied or disclosed to each other in
connection with this Agreement, all of which shall be returned to the
respective owners thereof upon completion of this Agreement. Notwithstanding
the foregoing, however, either party may make such information available to its
lenders. Neither party shall in any manner advertise or publish or release for
publication any statement mentioning the other party or the fact that the other
party has furnished or contracted to furnish goods and services hereunder or
quote the opinion of any employees of
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such other party, unless written consent of such other party shall first be
obtained or unless required by law.
19. Taxes. The amounts payable by Lessee under this Agreement do not
include any State or local sales or use taxes, or utility taxes, however
designated, which may be levied on the goods and services provided by Lessor
hereunder. With respect to such taxes, if applicable, Lessee shall furnish
Lessor with an appropriate exemption certificate or pay to Lessor, upon timely
presentation of invoices therefore (i.e. within 90 days after the provisions
of the goods or services relating to the invoice), such amounts thereof as
Lessor may be by law required to collect or pay. Any and all other taxes,
including but not limited to franchise, net or gross income, license,
occupation, and real or personal property taxes, shall be timely paid by
Lessor.
20. Binding Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association. Any such proceedings shall take place in Austin, Texas unless
otherwise agreed to by the parties. A three person panel of arbitrators shall
interpret this Agreement in accordance with the substantive laws of the State
of Michigan. Each party shall select one arbitrator and the two arbitrators
shall then select a third member of the arbitration panel. The panel of
arbitrators shall have the power to order specific performance if requested.
Any award, order, or judgment pursuant to such arbitration shall be deemed
final and may be enforceable in any court of competent jurisdiction for
purposes of enforcement of the arbitrators' decision and for no other purpose.
The parties agree that any arbitration proceedings shall be conducted on a
confidential basis. Lessee may, at its option, continue to accept what it
considers to be below-standard Service and pay the charges hereunder relating
thereto during such pendency of such arbitration, without prejudice thereto.
21. Survival. Rights and obligations of the parties relating to monies owed
and other rights and obligations of the parties that by their nature extend
beyond termination or expiration of this Agreement, such as without limitation,
the parties' rights and obligations under the confidentiality, indemnification
and limitation on liability provisions, survive termination or expiration of
this Agreement.
22. Legal Construction. In case any one or more of the provisions contained
in this Agreement shall, for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
23. Entire Agreement. This Agreement constitutes the entire agreement among
the parties pertaining to the Circuits leased hereunder. This Agreement may be
modified or supplemented only by a written instrument executed by each party
hereto.
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In witness to the foregoing, the parties hereto have executed this Agreement
below.
Allnet Communications Services, Inc. MSM Associates, Limited Partnership
By: Mutual Signa Corporation of Michigan
Its: General Partner
By: Marvin C. Moses By: John J. Willingham
Title: Executive Vice President Title: Vice President
Chief Financial Officer
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LIST OF ATTACHMENTS
Exhibit A Initial Purchase Order
Exhibit B Form of Purchase Order
Exhibit C Schedule of Other Services
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EXHIBIT A
Initial Purchase Order
CITY PAIR CIRCUIT MILEAGE
--------- ---------------
* *
*
The Requested Service Commencement Date of each of the above Circuits
is as soon as possible after the date MCI makes such Circuits available to
Lessor.
The Circuit Lease Term of each of the above Circuits will be *
from the Activation Date thereof.
* Confidential Treatment Applied For
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EXHIBIT B
OFFICE USE ONLY
REQ'ST SERVICE DATE:______ MSM ASSOCIATES _________________
ACCEPTED EARLIER ACTIVATION: LIMITED PARTNERSHIP |MSO#_____________|
Y___________ N_________ | |
CKT ID:____________________ |RELATED MSO:____ |
|_________________|
PURCHASE ORDER FORM FOR CUSTOMER ORDER NO:_____________
Pursuant to the DIGITAL SERVICE AGREEMENT by and between MSM ASSOCIATES LIMITED
PARTNERSHIP as LESSOR and ________________________________________________ as
LESSEE, dated___________,19_____, LESSEE orders and LESSOR shall provide the
following Digital Transmission Service:
NEW__________ RENEW________________ QTY RATE TERM MILES
CANCEL_______ DISCONNECT___________ DS-3 _____ _____ _____ _____
CHANGE_______ EXPEDITE Y___ N ____ DS-1 _____ _____ _____ _____
ON NET_______ OFF NET______________ DSO _____ _____ _____ _____
PROTOCOL_____ RECONFIGURE__________ CIF _____ _____ _____ _____
OTHER:_______________________________ OTHER _____ _____ _____ _____
CUSTOMER CONTACT:____________________ PHONE # _____________ FAX # __________
TECHNICAL CONTACT:___________________ PHONE # _____________ FAX # __________
CITY LOCATION A:_____________________ CITY LOCATION B:_______________________
_____________________________________ _______________________________________
Special _____ Switched____ Special _____ Switched______
Bypass Y ___ N ___ Owner_______ Bypass Y ___ N ___ Owner_________
LESSOR TO PROVIDE: CFA: Y ___ N ___ LESSOR TO PROVIDE: CFA: Y ___ N ___
LOA: Y ___ N ___ ASR: Y ___ N ___ LOA: Y ___ N ___ ASR: Y ___ N ___
CUSTOMER (LESSEE) TO PROVIDE: CUSTOMER (LESSEE) TO PROVIDE:
LOA: Coordinated LOA: Y__ N__ Coordinated Y ___ N ___
Y__ N__ Conversion: Y ___ N ___ Conversion:
CIF CIF Attached CIF arrangement Y___ N___ CIF Attached
arrangement Y___ N___ Y___ N ___ Y___ N ___
SPECIAL INSTRUCTIONS__________________ SPECIAL INSTRUCTIONS___________________
______________________________________ _______________________________________
______________________________________ _______________________________________
MONTHLY LEASE RATE: NON RECURRING CHARGES:
Monthly IXC Charge: $________ Installation: $____ ASR: $____
EQPT. Lease Charge: $________ Installation: $____ Reconfigure: $____
Echo Canceller: $________ Installation: $____ Expedite: $____
CIF Racks: $________ Installation: $____
CIF Power: $________ Installation: $____
Other: $________ Installation: $____
TOTAL: $________ TOTAL OF NON RECURRING CHARGES: $____
Notwithstanding anything in the Digital Service Agreement to the
contrary, (1) a security interest in this Agreement may be granted
by Lessor to any Lender and (2) Lessor may from time to time assign
all its rights and obligations hereunder with respect to any Circuits
to any Affiliate. Upon such assignment, this Agreement shall be deemed
to be multiple agreements, each upon the terms and conditions set forth
herein by and between Lessee and such affiliate with respect to such
circuit between Lessor and Lessee with respect to the circuit not so
assigned.
IN WITNESS WHEREOF, the parties have executed this PURCHASE ORDER on
the________day of_________19__
______________________________ ______________________________________
LESSOR APPROVAL/TITLE LESSEE AUTHORIZED REPRESENTATIVE/TITLE
Please fax this document to Sales and Marketing Department FAX # (512) 328-7632
____________________________________________________________________________
| FOR OFFICE USE ONLY |
| VERSION 1.2/7.19.93 |
|____________________________________________________________________________|
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EXHIBIT C
CUSTOMER MAINTENANCE SUPPORT
----------------------------
MSM's standard fees for customer maintenance support services are as
follows (unless set by precedence in a service contract):
Maintenance services shall be defined as all work performed by MSM on
equipment provided by or on behalf of the Customer, or supervision of the
Customer's work within MSM's terminate facilities. Maintenance Service charges
are not billed for troubles found within that portion of a circuit provided by
MSM. The following billing rates apply for these services:
A. $75 per hour (4 hour minimum-if dispatch is required) Monday
through Friday during the business hours of 8:00 a.m. - 5:00 p.m. local time,
exclusive of the following holidays:
New Years Day
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day and the day after Thanksgiving
Christmas Day
B. $95 per hour (4 hour minimum) for overtime work done after business
hours (defined above) and/or on holidays (defined above) and/or all day on
Saturdays and Sundays.
C. As requests for maintenance services are typically made via
telephone, MSM must be advised, in writing as to the person(s) who are
authorized to request service. It is the Customer's responsibility to keep MSM
apprised of any changes to its list of representative(s).
D. To request technical assistance and help under the maintenance
services, a call must be made to our Network Control Center at 1-800-526-2488.
This number should be used for MSM technical assistance, troubleshooting or
testing of circuits, not for service impairment or outages. The person calling
in must be on the authorized list in order to commit for charges for this
technical assistance. If that person is not on the list, the request cannot be
accommodated.
1. The Network Control Center personnel will take the call,
record the caller's name and phone number along with facts concerning the
assistance and support needed. The caller will then be given the number of the
"Assistance Ticket."
2. Upon completion of work, this "Assistance Ticket" will be
given to MSM's Accounting Department, and the customer will subsequently be
billed based upon the information on that ticket. A copy will be attached to
the invoice.
E. Except for emergencies, MSM technicians cannot be dispatched
unless requests are made in accordance with the above call-out procedure.
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EXHIBIT C
MAINTENANCE POLICY & ANCILLARY PRICING
NONRECURRING CHARGES DS-1 DS-3
- - -------------------- ---- ----
New Order Installation * *
Order Change (prior to circuit turnup)
Order Cancellation (prior to circuit turnup)
plus additional charges incurred
ASR (new or disconnect)
ASR Supplement
Order Expedite
Reconfiguration (city pair remains the same)
Ramped DS-3 Installation Per DS1
Distributed DS-3 Installation Per DS1
MONTHLY RECURRING CHARGES
- - -------------------------
* *
IXC Minimum circuit charge
Cross-connect Charge
Other IXC to MSM local access or bypass
facility (CTI long haul involved)
Local bypass - charge MSM POP to MSM POP in
same city, with no MSM long haul attached
at either MSM POP
Transit Cross-connect (MSM long haul not
included)
MISCELLANEOUS
- - ------------- * *
M13 1 yr Term
2+ yr Term
3+ yr Term
ECHO CANCELLERS
SECOND END LOOP (Ex: for ADPCM)
MAINTENANCE
* *
CIF FLOOR SPACE
CIF SHELF SPACE
CIF DC POWER
CIF AC/DC POWER
ALL OTHER SERVICES
(1) All of the above charges are subject to change with a 30-day notice.
(2) Services not described above will be considered special handling and
charges will be assessed on an individual basis.
* Confidential Treatment Applied For