Level 3 Communications, LLC
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 hereto 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 issues 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
balance which is not reasonably disputed under Section
2.4 hereof 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
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.
In the event the Services ordered by Customer involve a
local loop, Customer may arrange, through a local
exchange carrier colocated in Level 3's gateway Space,
for its own local loop, or it may have Level 3 provide the
same. In the event Customer provides for its own local
loop, Customer must provide to Level 3 all circuit facility
assignment information, firm order commitment
information and the design layout records necessary to
enable Level 3 to make the necessary cross-connection
between the Services and Customer's designated local
exchange carrier. Level 3 may charge Customer a non-
recurring cross-connect fee to make such connection,
and an additional non-recurring charge may apply in the
event that Customer requests and Level 3 permits
Customer to change its Service installation date. In the
event Customer provides for its own local loop, Level 3's
billing for the Services will commence once it has
installed and tested the Services up to the Level 3 side
of the cross-connect circuit. Otherwise, Level 3's billing
for the Services will commence once the Services are
installed and tested.
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: (i) usage based and billed in arrears, provided
the same is not paid within three (3) days of written
notice thereof provided by Level 3; or (ii) flat rated and
billed in advance, provided the same is not paid within
fourteen (14) 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
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;
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 or omissions or negligence of its employees
or agents, and regardless of whether such party has
been informed of the possibility or 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 OF 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 purposes
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-breaching party
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 deliver 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 Management, Level 3 Communications, LLC,
1025 Eldorado Boulevard, Broomfield CO 80021.
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,
infringement of third party proprietary rights 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 infringement of third party
proprietary rights) (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).
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
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 Services 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 as
attached respecting Private Line Service.
ADDITIONAL TERMS AND CONDITIONS
FOR COLOCATION
The following additional terms and conditions are applicable
where, pursuant to a Customer Order, Customer orders the
use of space within Level 3 gateways to be used for the
purpose of colocating telecommunications equipment or
equipment used for connection to the internet (the "Space").
1. Customer is granted the right to occupy the Space
identified in a Customer Order. Customer shall be
permitted reasonable access to the Space subject to any
and all rules, regulations and access requirements
imposed by Level 3 governing such access. Customer
may submit multiple Customer Orders requesting use of
different Space, each of which shall be governed by the
terms hereof.
2. Customer shall be permitted to use the Space only
for placement and maintenance of communications
equipment. The nonrecurring and monthly recurring
charges for the Space and any Services ordered by
Customer shall be set forth in each Customer Order.
Customer hereby agrees, within six (6) months of
ordering such Space, to use the Space for placement
and maintenance of telecommunications or internet
access equipment. In the event Customer fails to fill
said Space as set forth herein, Level 3 has the right to
reclaim the proportion of Space not being used
exclusively as indicated above, if the same is not cured
within forty-five (45) days' prior notice thereof to
Customer. Customer agrees to immediately vacate such
recaptured Space and Level 3 shall reduce the
Colocation fees allocated to such recaptured Space.
Customer further agrees that no refunds shall be made
to Customer regarding such recaptured Space.
3. Level 3 shall perform such janitorial services,
environmental systems maintenance, power plant
maintenance and other actions as are reasonably
required to maintain the gateway in which the Space is
located in a condition which is suitable for the placement
of telecommunications and internet access equipment.
Customer shall maintain the Space in an orderly and
safe condition, and shall return the Space to Level 3 at
the conclusion of the term set forth in the Customer
Order in the same condition (reasonable wear and tear
excepted) as when such Space was delivered to
Customer. EXCEPT AS EXPRESSLY STATED HEREIN OR
IN ANY CUSTOMER ORDER, THE SPACE SHALL BE
DELIVERED AND ACCEPTED "AS IS" BY CUSTOMER, AND
NO REPRESENTATION HAS BEEN MADE BY LEVEL 3 AS
TO THE FITNESS OF THE SPACE FOR CUSTOMER'S
INTENDED PURPOSE.
4. The term of use of the Space shall begin on the later
to occur of the date requested by Customer or the date
that Level 3 completes the build-out of the Space.
Customer's use of the Space beyond the initial term
shall be on a month-to-month basis, unless Customer
and Level 3 have agreed in writing to a renewal of the
right to use such Space. Customer hereby agrees to pay
for the Space and any related Services for the term of
this Agreement. The rates and other charges set forth in
each Customer Order are established in reliance on the
term commitment made therein. In the event that
Customer terminates a Customer Order for Space which
is accepted by Level 3 or in the event that the Customer
Order is terminated due to a failure of Customer to
satisfy the requirements set forth herein or in the
Customer Order prior to the end of the agreed term,
Customer shall pay a termination charge equal to the
costs incurred by Level 3 in returning the Space to a
condition suitable for use by other parties, plus the
percentage of the monthly recurring fees for the
terminated Space calculated as follows:
a. 100% of the monthly recurring fees that would
have been charged for the Space for months 1-12 of the
agreed term; plus
b. 75% of the monthly recurring fees that would
have been charged for the Space for months 13-24 of
the agreed term; plus
c. 50% of the monthly recurring fees that would
have been charged for the Space 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 the Space ordered pursuant to 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.
5. Level 3 shall use reasonable efforts to complete the
build-out and make the Space available to Customer on
or before the date requested by Customer. In the event
that Level 3 fails to complete the build-out within sixty
(60) days of the date requested by Customer, then
Customer may terminate its rights to use such Space
and receive a refund of any fees paid for the use or
build-out of such Space.
6. Customer shall abide by any posted or otherwise
communicated rules relating to use of, access to, or
security measures respecting the Space. Customer's
use of the Space will be immediately terminated in the
event Customer or any of its agents or employees is
found in Level 3's gateway with any firearms, drugs,
alcohol or is found engaging in any criminal activity,
eavesdropping, foreign intelligence, card selling or
slamming. Persons found engaging in any such activity
or in possession of the aforementioned prohibited items
will be immediately escorted from the gateway. In the
event that unauthorized parties gain access to the Space
through access cards, keys or other access devices
provided to Customer, Customer shall be responsible for
any damages incurred as a result thereof. Customer
shall be responsible for the cost of replacing any security
devices lost or stolen after delivery thereof to Customer.
In addition, Level 3 shall have the right to terminate
Customer's use of the Space or the Services in the
event that: (a) Level 3's rights to use the facility within
which the Space is located terminates or expires for any
reason; (b) Customer has violated the terms hereof or of
any Customer Order submitted hereunder; (c) Customer
makes any material alterations to the Space without first
obtaining the written consent of Level 3; (d) Customer
allows personnel or contractors to enter the Space who
have not been approved by Level 3 in advance; or (e)
Customer violates any posted or otherwise
communicated rules relating to use of or access to the
Space. With respect to items (b), (c), (d) and (e)
immediately above, unless the same interferes or has
the potential to interfere with other Level 3 Colocation
customers, Level 3 shall provide Customer a written
notice of the foregoing and a 10-day opportunity to cure
the same before terminating Customer's rights to the
Space.
7. Customer may sublease the Space under the
following conditions: i) all proposed sublessees must be
approved, in writing, by Level 3 in Level 3's sole
discretion; ii) Customer hereby guarantees that all
Sublessees shall abide by all terms and conditions set
forth between Customer and Level 3; iii) Customer shall
indemnify, defend and hold Level 3 harmless from all
claims brought against Level 3 arising from any act or
omission of any subcontractor and iv) any sublessee
shall be considered customer's agent and all of
sublessees' acts and omissions and usage of the Space
or Services hereunder shall be attributable to Customer
for the purposes of these Terms and Conditions.
8. Level 3 reserves the right to change the location or
configuration of the Space, provided, however, that
Level 3 shall not arbitrarily or discriminatorily require
such changes. Level 3 and Customer shall work in good
faith to minimize any disruption in Customer's services
that may be caused by such changes in location or
configuration of the Space.
9. Prior to occupancy and during the term of use of any
Space, Customer shall procure and maintain the
following minimum insurance coverage: (a) Workers'
Compensation in compliance with all applicable statutes
of appropriate jurisdiction. Employer's Liability with limits
of $500,000 each accident; (b) Commercial General
Liability with combined single limits of $1,000,000 each
occurrence; and (c) "All Risk" Property insurance
covering all of Customers personal property located in
the Space. Customer's Commercial General Liability
policy shall be endorsed to show Level 3 (and any
underlying property owner, as requested by Level 3) as
an additional insured. All policies shall provide that
Customer's insurers waive all rights of subrogation
against Level 3. Customer shall furnish Level 3 with
certificates of insurance demonstrating that Customer
has obtained the required insurance coverages prior to
occupancy of the Space. Such certificates shall contain
a statement that the insurance coverage shall not be
materially changed or cancelled without at least thirty
(30) days prior written notice to Level 3. Customer shall
require any contractor entering the Space on its behalf to
procure and maintain the same types, amounts and
coverage extensions as required of Customer above.
10. Customer may order and pay for Level 3 to perform
certain limited ("remote hands") maintenance services
on Customer's equipment within the space, which shall
be performed in accordance with Customer's directions.
"Remote hands" maintenance services includes power
cycling equipment. Level 3 shall in no event be
responsible for the repair, configuration or tuning of
equipment, or for installation of Customer's equipment
(although Level 3 will provide reasonable assistance to
Customer in such installation).
11. Level 3 makes the Service Level Agreement as
attached respecting Colocation Services.
ADDITIONAL TERMS AND CONDITIONS FOR
DEDICATED INTERNET ACCESS AND RAPID ACCESS
The following additional terms and conditions are
applicable where, pursuant to a Customer Order, Customer
orders Dedicated Internet Access and Rapid Access
(the "Internet Access Services").
1. Any state or federal tariffs applicable to the
Internet Access Services to be delivered under any
Customer Order are incorporated into the terms thereof.
The Internet Access Services shall at all times be used
in compliance with Level 3's then-current Acceptable Use
Policy and Privacy Policy, as amended by Level 3 from
time to time and which are available through Level 3's
web site.
2. The nonrecurring charges and monthly recurring
rates for the Internet Access Services provided by Level
3 to Customer are 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
and/or volume commitment made therein, and Customer
agrees to pay the same. In the event that Customer
terminates Internet Access Services ordered in any
Customer Order which is accepted by Level 3 or in the
event that the delivery of Internet Access Services is
terminated due to a failure of Customer to satisfy the
requirements set forth herein or in the Customer Order
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 Internet
Access Services calculated as follows:
a. 100% of the monthly recurring charge that would
have been incurred for the Internet Access Service for
months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would
have been incurred for the Internet Access Service for
months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would
have been incurred for the Internet Access Service for
months 25 through the end of the agreed term.
Customer may, in the event that a Revenue
Commitment is made and is then being satisfied by
Customer, terminate, rearrange or reconfigure the
Internet Access 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 provides only access to the Internet; Level 3
does not operate or control the information, services,
opinions or other content of the Internet. Customer
agrees that it shall make no claim whatsoever against
Level 3 relating to the content of the Internet or
respecting any information, product, service or software
ordered through or provided by virtue of the Internet.
5. If Customer orders Burstable Dedicated Internet
Access Services pursuant to a Customer Order, the
Customer shall be permitted to make two (2) changes to
its Committed Data Rate each contract year, provided
that such change be to a higher Committed Data Rate.
6. Level 3 makes the following Service Level
Agreements as attached respecting Dedicated Internet
Access and Rapid Access Service.
ADDITIONAL TERMS AND CONDITIONS FOR
MANAGED MODEM -- DEDICATED, QUICKSTART AND TRANSIT SERVICES
The following additional terms and conditions are
applicable where, pursuant to a Customer Order Customer
orders services required to allow access to "Dedicated
Services," "Dedicated Service with QuickStart" and
"Transit Services" as offered by Level 3 (the "Managed
Modem Services") ordered by Customer under
any Customer Order.
1. Any state or federal tariffs applicable to the Managed
Modem Services to be delivered under any Customer
Order are incorporated into the terms thereof. The
Managed Modem Services shall at all times be used in
compliance with Level 3's then-current Acceptable Use
Policy and Privacy Policy, as amended by Level 3 from
time to time and which are available through Level 3's
web site.
2. In the event Customer orders "Dedicated Service,"
end user traffic will be routed through and aggregated in
Level 3's facility, sent to the Customer's Premises via a
dedicated circuit, and then routed to its final destination
by Customer. In the event that Customer orders "Transit
Services," End User traffic will be routed to Level 3's
facility and then routed to its final destination by Level 3
via the Internet. Dedicated Service with "QuickStart" will
initially be provisioned to the Customer in the same
fashion as Transit Services, until such time as Level 3
has provisioned the dedicated circuit to send end user
traffic from Level 3's facility to the Customer's Premises.
QuickStart will then be migrated to standard Dedicated
Service. Customers ordering Dedicated Services will be
required to make a portion of the Premises available to
Level 3 for the placement of equipment necessary to
provide such Dedicated Services. For Dedicated
Service, all Customer CPE as well as the private line
necessary to support this service will be ordered,
installed and managed by Level 3. Level 3 cannot and
does not guarantee the availability of any port ordered
for installation greater than 90 days from the date of the
order. Any telephone numbers used in providing the
Managed Modem Services shall be released to
Customer upon expiration or termination hereof to the
extent that it is technically feasible for Level 3 to port
packet switched telephone numbers and then only if
Customer is in compliance with all of the terms
contained herein and in the General Terms and
Conditions.
3. Section 1.1 of the General Terms and Conditions for
Delivery of Service notwithstanding, a Customer order
for Managed Modem Service shall be accepted by Level
3 once Level 3 has provisioned and tested the ports.
Customer's billing respecting said ports shall commence
once tested and found to be functioning properly by
Level 3 notwithstanding Customer's: i) refusal to accept
the ports or ii) Customer's refusal to acknowledge
communications by Level 3 to Customer respecting the
ports. In the event Customer moves an installation date
provided by Level 3 more than ten (10) business days
out from the original requested date, Level 3 will begin
billing for Managed Modem Service eleven (11) business
days after the initial requested installation date whether
or not the Service is installed.
4. The nonrecurring charges and monthly recurring
rates for the Managed Modem Services provided by
Level 3 to Customer shall be set forth in each Customer
Order. Level 3 will dedicate the specified number of
ports to Customer in the Level 3 facilities as identified in
each Customer Order.
Customer shall have the option to purchase twenty
percent (20%) port overage from Level 3. If ordered,
Level 3 shall provision an additional twenty percent
(20%) of ports over the number of ports actually ordered
by Customer to accept Customer traffic in the event
Customer's traffic bursts and its usage exceeds the
capacity of the ports actually ordered. In the event
Customer chooses not to purchase twenty percent
(20%) port overage from Level 3, if the Customer's traffic
bursts as set forth above, Customer will get a busy
signal in the event its ordered capacity is exceeded. In
the event that Customer purchases 20% port overage,
Customer will be responsible for additional monthly
charges to the extent it utilizes any additional capacity
provided by Level 3.
5. Customer must utilize all Managed Modem ports
provisioned hereunder at no less than fifty percent (50%)
of the capacity of such port. Customer agrees to allow
Level 3 to monitor Customer's utilization of the ports
provisioned herein. In the event Customer is Under-
Utilizing (as defined below) such ports, Level 3 retains
the right to reclaim such ports after which Customer shall
have no further right to use the ports Under-Utilized.
Termination liability shall apply to any ports reclaimed
pursuant to this paragraph.
For the purpose of this Section, "Under-Utilization" shall
mean the use of less than fifty percent (50%) of the
capacity of any given port for any sixty (60) day period
as determined by Level 3. Under-Utilization shall not be
applicable to the first sixty (60) day period immediately
following the provisioning of any Managed Modem port.
6. The rates and other charges set forth in each
Customer Order are established in reliance on the term
commitment made therein, and Customer agrees to pay
the same. In the event that Customer terminates
Managed Modem Services ordered in any Customer
Order which is accepted by Level 3 or in the event that
the delivery of Managed Modem Services is terminated
due to a failure of Customer to satisfy the requirements
set forth herein or in the Customer Order 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 Managed Modem Services
calculated as follows:
a. 100% of the monthly recurring charge that would
have been incurred for the Managed Modem Service for
months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would
have been incurred for the Managed Modem Service for
months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would
have been incurred for the Managed Modem Service for
months 25 through the end of the agreed term.
Customer may, in the event that a Revenue
Commitment is made and is then being satisfied by
Customer, terminate, rearrange or reconfigure the
Managed Modem 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 for such
termination, rearrangement or reconfiguration.
7. Level 3 provides only access to the Internet; Level 3
does not operate or control the information, services,
opinions or other content of the Internet. Customer
agrees that it shall make no claim whatsoever against
Level 3 relating to the content of the Internet or
respecting any information, product, service or software
ordered through or provided by virtue of the Internet.
8. Level 3 makes the Service Level Agreement as
attached respecting Managed Modem Services.
ADDITIONAL TERMS AND CONDITIONS FOR
IP CROSSROADS
The following additional terms and conditions are
applicable where, pursuant
to a Customer Order, Customer orders
IP CrossRoads Services.
1. Any state or federal tariffs applicable to the
IP CrossRoads Services to be delivered under any
Customer Order are incorporated into the terms thereof.
The IP CrossRoads Services shall at all times be used in
compliance with Level 3's then-current Acceptable Use
Policy and Privacy Policy, as amended by Level 3 from
time to time and which are available through Level 3's
web site.
2. The nonrecurring charges and monthly recurring
rates for the IP CrossRoads Services provided by
Level 3 to Customer are 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
and/or volume commitment made therein, and Customer
agrees to pay the same. In the event that Customer
terminates IP CrossRoads Services ordered in any
Customer Order which is accepted by Level 3 or in the
event that the delivery of IP CrossRoads Services is
terminated due to a failure of Customer to satisfy the
requirements set forth herein or in the Customer Order
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
IP CrossRoads Services calculated as follows:
a. 100% of the monthly recurring charge that would
have been incurred for the IP CrossRoads Service for
months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would
have been incurred for the IP CrossRoads Service for
months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would
have been incurred for the IP CrossRoads Service for
months 25 through the end of the agreed term.
Customer may, in the event that a Revenue
Commitment is made and is then being satisfied by
Customer, terminate, rearrange or reconfigure the
IP CrossRoads 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 provides only access to the Internet; Level 3
does not operate or control the information, services,
opinions or other content of the Internet. Customer
agrees that it shall make no claim whatsoever against
Level 3 relating to the content of the Internet or
respecting any information, product, service or software
ordered through or provided by virtue of the Internet.
5. If Customer orders IP CrossRoads Services pursuant
to a Customer Order, the Customer shall be permitted to
make two (2) changes to its Committed Data Rate each
contract year, provided that such change be to a higher
Committed Data Rate.
6. Level 3 reserves the right, but does not undertake the
obligation, to provide any Customer or potential
customer bound by a Nondisclosure Agreement access
to a list of (i) Level 3's Customers which are connected
to the IP CrossRoads Intra-Gateway Exchange Network
Platform; and/or (ii) Autonomous Systems Internet
Networks connected to the IP CrossRoads On-Net
Transport Network Platform. By this Agreement,
Customer consents to such disclosures.
Level 3 makes no guarantee of any Customer's
willingness to exchange Internet traffic with any other
customer. Level 3 will, however, use reasonable efforts
to arrange an introduction between customers or
prospective customers bound by a Nondisclosure
Agreement to facilitate an agreement between them
respecting the exchange of Internet traffic.
Level 3 undertakes no obligations and accepts no
liability for the configuration, management, performance
or any other issue relating to Customer's routers or other
customer provided equipment used for access to or the
exchange of traffic in connection with Level 3's
IP CrossRoads Service.
7. Level 3 makes the Service Level Agreement as
attached respecting IP CrossRoads Service.
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