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EXHIBIT 10.33
THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
INTERCONNECTION AGREEMENT
This Interconnection Agreement (the "Agreement") is made, effective as
of April 1, 1998 (the "Effective Date"), by and between Verio, Inc., a Delaware
corporation, with its principal place of business at 8005 S. Chester Street,
Suite 200, Englewood, CO 80112 ("Company") and UUNET Technologies, Inc., a
Delaware corporation, with its principal place of business at 3060 Williams
Drive, Fairfax, VA 22031 ("UUNET").
R E C I T A L S
1. Each of Company and UUNET operates an Internet Network, as defined below;
and
2. The parties wish to provide for the interconnection of, and exchange of
traffic between, their respective Internet Networks on the terms and conditions
herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 "Internet Network" shall mean a communications network running the
TCP/IP and other Internet protocols.
1.2 "Interconnection Point" shall mean any interconnection point at which
the parties agree to connect their respective Internet Networks under this
Agreement. A description of all Interconnection Points, together with all direct
interconnections agreed to by the parties, is set forth on the attached Schedule
1, and Schedule 1 shall be amended by the agreement of Company and UUNET in the
event of any changes.
2. EXCHANGE OF TRAFFIC
2.1 The parties agree to exchange digital communications traffic over their
respective Internet Networks at the Interconnection Points, subject to the terms
and conditions set forth in this Agreement. UUNET's obligations under this
Agreement are subject to (***).
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
2.2 Each party shall provide, at its own expense, a connection from its
Internet Network to the Interconnection Point(s) within (***) of the date of
this Agreement. Company will send over the Interconnection Points only traffic
destined for UUNET and Verio customers. The data rates at which the parties will
connect hereunder is set forth in the attached Schedule 1.
2.3 The parties agree not to restrict the use of their respective Internet
Networks based on the subject matter of the traffic unless required to do so by
applicable law.
2.4 Except for control traffic which must be examined in order for the
parties to operate their respective Internet Networks, neither party shall
monitor or capture the contents of any data or other traffic which passes
through the Interconnection Points. Neither party shall modify the
infrastructure in any way to examine any data unless an appropriate court order
is in force. Except as otherwise agreed between the parties and with third
parties as appropriate, neither party shall provide to third parties any
statistical information itemized by service provider, by company, or by IP
address; provided, that each party may provide its customers with their own
statistical data.
2.5 Neither party will establish a route of last resort directed toward the
other party's Internet Network. Instead, the parties will fully exchange
explicit routes comprising public Internet service destinations of entities to
whom either party is contractually obligated to handle traffic.
3. TERM AND TERMINATION
This Agreement shall have an initial term of one year following the
Effective Date. Either party may terminate this Agreement upon 60 calendar days'
written notice to the other at any time after the end of the initial term. If
neither party terminates this Agreement upon expiration of the initial term,
this Agreement shall continue on its present terms and conditions, specifically
including the requirement that the parties continue their discussions and
activities under Paragraphs 4 and 5 hereof, until either party terminates it by
60 calendar days' written notice to the other.
4. TECHNICAL AND OPERATIONAL MATTERS
4.1 The parties will work together during the term of this Agreement to
establish mutually agreed performance objectives and operational procedures to
enable each party to provide the highest practical quality of service over its
Internet Network and the interconnection provided hereunder, in a cost effective
fashion. In connection therewith, the parties shall use their reasonable efforts
to achieve a minimum end-to-end one-way packet delay.
4.2 Each of the parties will use its reasonable efforts to achieve a mean
time to repair of (***) for all outages at the Interconnection
Point(s) set forth on
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
Schedule 1. The parties will cooperate with each other in each party's efforts
under this paragraph 4.2.
4.3 Each of the parties will develop scheduled maintenance procedures that
provide for notification by one party to the other of all scheduled maintenance
that could cause end-to-end connectivity loss for any user of more than (***)
. Each party agrees to give the other three calendar days advance notice
for scheduled maintenance that is expected to result in (***) of
end-to-end connectivity loss.
4.4 Each party will, at its own expense and on a reasonable efforts basis,
provide Network Operations Center ("NOC") support in cooperation with the other
so as to maintain the smooth operation of the network service. The parties shall
develop operational procedures for the interconnection of their respective
Internet Networks, including without limitation inter-NOC problem management
information exchanges (e.g., trouble ticket tracking), and NOC escalation
procedures for addressing unscheduled outages or emergency maintenance.
4.5 Each of the parties will provide the other with certain limited access
to data for the purpose of operational monitoring and the diagnosis of
end-to-end connectivity problems. The parties will use their reasonable efforts
to develop procedures to govern the timing and other terms and conditions upon
which this access will be provided.
4.6 Each of the parties will use its reasonable efforts to collect during
the term hereof and provide to the other party traffic information with respect
to its Internet Network in order to better understand the nature of the traffic
passing through the parties' respective Internet Networks. In addition, each
party shall use its reasonable efforts to track and provide the other party with
average and peak utilization data over the interconnection facilities set forth
on Schedule 1 hereto.
5. CUSTOMER RELATIONS
Each party will be responsible for communicating with its own customers
with respect to its Internet Network. Each party will use its reasonable efforts
to notify the other promptly in writing of all trouble reports made to it by
customers of the other party. Each party shall be responsible to screen the
traffic of its own customers not desiring public Internet access from
distribution across the Interconnection Point(s). Each party will independently
establish the charges to its own customers for the services provided in
connection with this Agreement.
6. LIMITATION ON SERVICES
This Agreement shall apply only to traffic passing through the public
Internet. Virtual private data network services and services involving protocols
other than the Internet protocols are not covered by this Agreement. Neither
party shall be entitled or
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required to carry traffic hereunder if doing so would conflict with any
condition imposed by an agreement between the other party and any third party
with whom the other party connects.
7. NONEXCLUSIVITY
This Agreement shall not prohibit or restrain either party's entry into any
separate similar or dissimilar contract or agreement with one or more third
parties.
8. NO LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OR DAMAGE ARISING
FROM: (I) ANY FAILURE IN OR BREAKDOWN OF ANY FACILITIES OR SERVICES HEREUNDER,
WHATSOEVER THE CAUSE AND HOWEVER LONG IT SHALL LAST; (II) ANY INTERRUPTION OF
SERVICE, WHATSOEVER THE CAUSE AND HOWEVER LONG IT SHALL LAST; (III) SUCH PARTY'S
SUBMITTING TRAFFIC TO OR ACCEPTING TRAFFIC FROM THE OTHER PARTY HEREUNDER; OR
(IV) ANY OTHER CIRCUMSTANCE RELATING TO THIS AGREEMENT.
9. INSURANCE
Each party is responsible for assessing its own need for property, casualty
and liability insurance and each shall obtain such insurance as each sees fit.
Each party shall bear the risk of loss and damage with respect to its own
equipment and agrees not to make any claims against the other, or assign any
such claims to third parties, for any property loss or damage.
10. AUTHORIZATIONS
All undertakings and obligations assumed hereunder by either party are
subject to all applicable existing and future laws, rules and regulations, and
are further subject to the issuance and continuance of all necessary
governmental licenses, waivers, consents, registrations, permissions and
approvals.
11. FORCE MAJEURE
No failure or omission by either party to carry out or observe any of the
terms and conditions of this Agreement shall give rise to any claim against the
party in question or be deemed to be a breach of this Agreement if such failure
or omission arises from any cause reasonably beyond the control of that party (a
"Force Majeure Event"). Each party shall give the other notice in the event it
experiences a failure or delay due to a Force Majeure Event. Upon such notice,
the party affected by the Force Majeure Event may delay performance hereunder
during the pendency of such Force Majeure Event, and shall have no liability for
such delay.
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12. RELATIONSHIP OF PARTIES
In their performance hereunder the parties are acting as independent
contractors, and nothing contained herein shall be construed to create a
partnership, joint venture or other agency relationship between the parties.
13. REGULATORY APPROVAL
The parties acknowledge that this Agreement, and any or all of the terms
hereof, may become subject to regulatory approval by various local, state or
federal agencies. Should such approval be required from time to time or at any
time, the parties shall cooperate, to the extent reasonable and lawful, in
providing such information as is necessary to complete any required filing.
14. ASSIGNMENT
Neither party shall transfer or assign its rights or obligations under this
Agreement or transfer by way of merger, consolidation, sale of all or
substantially all of its assets without the prior written consent of the other
party which consent shall not be unreasonably withheld; provided, that either
party may transfer its interest herein to any subsidiary or affiliate of such
party.
15. NOTICES
All notices between the parties required or permitted hereunder shall be
effective if hand delivered or sent by post or courier, postage or fees paid, or
by facsimile to the address specified below. All notices shall be effective when
sent.
If to Company: If to UUNET:
Verio Inc. UUNET Technologies, Inc.
8005 S. Chester Street, Suite 200 3060 Williams Drive
Englewood, CO 80112 Fairfax, VA 22031
ATTN: Chris Demarche ATTN: Vice-President, Systems Engineering
Chief Technical Officer Fax: 703-206-5601
with a copy to: with a copy to:
Verio UUNET Technologies, Inc.
8005 S. Chester Street 3060 Williams Drive
Suite 200 Fairfax, VA 22031
Englewood, CO 80112 ATTN: General Counsel
ATTN: General Counsel Fax: 703-206-5807
Fax: 303-792-3879
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
16. ENTIRE AGREEMENT
This Agreement represents the entire understanding between the parties
regarding the subject matter hereof and supersedes all other prior and
contemporaneous agreements, understandings, negotiations and discussions between
the parties with respect to such subject matter. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Virginia, without regard to the conflicts of laws principles thereof.
17. SEVERABILITY
If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this Agreement
will remain in full force and effect.
18. AMENDMENT
This Agreement may be modified only by a written amendment signed by both
parties. The Company may acquire interests in additional Internet service
providers ("Additional ISPs") whose networks it may wish to include within the
terms of this Agreement. Any such inclusion shall constitute an amendment to
this Agreement. In the event that such Additional ISP is a customer of UUNET, it
shall be a condition of any such amendment that (***)
.
19, NO THIRD PARTY BENEFICIARIES
Nothing contained in this Agreement shall be deemed to confer any rights in
any third party not a signatory to this Agreement.
20. CONFIDENTIALITY
All information exchanged between the parties under this Agreement or
during the negotiations preceding this Agreement and relating either to the
terms and conditions of this Agreement or any activities contemplated by this
Agreement is confidential and neither party shall disclose to any third party
any of the other party's confidential information disclosed to it. Any
announcement of this Agreement must be mutually agreed upon by both parties,
including the timing and wording of press releases and other announcements to
third parties. Should the parties not come to agreement on a press release or
other announcement of the Agreement within 60 days after execution and delivery
of the Agreement, either party may publicly acknowledge that this Agreement
exists, provided that the acknowledgment is not in the form of a press release.
Either party may disclose the existence of this Agreement
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and its terms, which may include providing a copy thereof, pursuant to any
requirement of law or regulation or pursuant to a judicial or administrative
order.
21. DISPUTES
All disputes arising out of or relating to this Agreement which are not
resolved within 30 days after notice of the dispute is given by either party to
the other shall be finally settled by arbitration conducted expeditiously in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration shall be conducted by a single arbitrator in
Washington, D.C. The arbitration shall be governed by the United States
Arbitration Act, and judgment upon the award rendered by the arbitrator may be
entered by any court with jurisdiction. The arbitrator is not empowered to
award damages in excess of direct compensatory damages. EACH PARTY HEREBY WAIVES
ANY DAMAGES IN EXCESS OF DIRECT COMPENSATORY DAMAGES.
IN WITNESS WHEREOF, the parties have caused their respective authorized
representatives to sign this Agreement on their behalf, effective as of the date
first written above.
Verio Inc. UUNET Technologies, Inc
By: /s/ CHRIS DEMARCHE By: /s/ GEORGE P. ALBER
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Name: Chris DeMarche Name: George P. Alber
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Title: Chief Technical Officer Title: Vice President
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE 1
INTERCONNECTED POINTS
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SPEEDS
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THE INFORMATION BELOW MARKED (*) OR (***) HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE 2
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