Resolution No. 88171
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RESOLUTION NO. 8817
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON
APPROVING AND AUTHORIZING THE EXECUTION OF A WHOLESALE
MASTER SERVICE AGREEMENT AND SERVICE ORDER FORM BY AND
BETWEEN THE CITY OF VERNON AND WILTEL COMMUNICATIONS,
LLC FOR FIBER OPTIC INTERNET ACCESS
WHEREAS, the City of Vernon ( "Vernon ") has installed a
fiber -optic cable network around the perimeter of the City and is
providing excess unactivated or dark fibers to businesses in the City
to enable such businesses to have access to voice, data and /or video
services; and
WHEREAS, Vernon desires to lease internet bandwidth from
internet content providers in order to provide dedicated internet
access services to Vernon businesses using Vernon's fiber optic
network infrastructure; and
WHEREAS, on April 13, 2005, the City Council of the City of
Vernon adopted Resolution No. 8710 approving Agreement No. FO- 344
01/2005 Optical Fiber Use Lease Agreement (the "LADWP Agreement ") with
the Department of Water and Power of the City of Los Angeles ( "LADWP ")
to connect the Vernon fiber network to internet content providers in
downtown Los Angeles through the fiber network of LADWP; and
WHEREAS, subsequent to Vernon's approval and execution of
the LADWP Agreement, LADWP notified Vernon that further internal
review was necessary and that said review may take some time; and
WHEREAS, Vernon has determined that having internet content
providers deliver their services directly to Vernon City Hall instead
of central offices in Los Angeles using copper T3 service is a viable
alternative until such time as the LADWP Agreement is fully executed
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whereupon the alternate internet access providers will "swing" their
links over to the LADWP fiber system; and
WHEREAS, by memo dated July 13, 2005, Ali Nour, the Fiber
Optics and Gas Systems Manager, has recommended that Vernon procure the
upstream service provider services of WilTel Communications, LLC
( "WilTel ") ; and
WHEREAS, the City and WilTel have negotiated a Wholesale
Master Service Agreement and Service Order Form for dedicated internet
access and direct network access services; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into a agreement with WilTel.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Wholesale Master Service Agreement and Service Order Form
(collectively, the "Agreement ") with WilTel, a copy of which is
attached hereto as Exhibit "A" and incorporated by this reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor to execute said Agreement for, and on behalf of,
the City of Vernon and the City Clerk is hereby authorized to attest
thereto.
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/ / /
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SECTION 4: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to send one executed
Agreement to:
WilTel Communications, Inc.
Attn. Mardi de Verges, Sr. VP, Finance
One Technology Center
100 S. Cincinnati, 13th Floor
Tulsa, Oklahoma 74103
SECTION 5: The Acting City Clerk, or his authorized
designee, is hereby authorized to make whatever nonsubstantive
changes, upon advice of counsel, to the Agreement and all related
documents that become necessary to implement and carry out the
purposes of this resolution
SECTION 6: The Acting City Clerk, or his authorized
designee, is hereby authorized to execute all forms necessary to
secure, implement and carry out the purposes specified in the
Agreement.
SECTION 7: The Acting City Clerk of the City of Vernon
shall certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 3rd day of August, 2005.
ATTEST:
SCE V. MALKENHORST, JR.
Acting City Clerk
-147014`a, THOMAS A. YBARRA, Mayor Pro -Tem
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STATE OF CALIFORNIA
ss
COUNTY OF LOS ANGELES
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8817, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, August 3, 2005, and thereafter was duly signed by the Mayor
Pro -Tem of the City of Vernon.
(SEAL)
CE V. MALKENHORST, Jr.
Acting City Clerk
EXHIBIT
A
This Wholesale Master Service Agreement is effective this 3rd day of August, 2005 ( "Effective Date "),
by and between WilTel Communications, LLC, located at One Technology Center, 100 South
Wi /Te/ Cincinnati, 13th Floor, Tulsa, Oklahoma, 74103, a Delaware limited liability company ( "WilTel "), and
COMMUNICATIONS City of Vernon, located at 4305 S. Santa Fe Ave., Vernon, California 90058, a California corporation
( "Customer ").
1. Services. Subject to the Customer placing orders and WilTel accepting such orders as contemplated herein, Customer agrees to
purchase, and WilTel agrees to provide, the services described in the attached service schedule(s) ( "Service Schedule(s) ") as indicated in
Appendix A (check as applicable) (the "WilTel Services "), and Third Party Service described in Section 17 (WilTel Services and Third
Party Service, collectively or individually, the "Services "). WilTel Services may consist of any combination of WilTel's voice products
and/or data products (each referred to as "Network Services "), and/or professional services. All Services shall be provided according to
the terms and conditions in this WMSA (defined below) and as specified in an accepted order for Services placed by Customer
contemporaneously herewith, subsequent hereto or in contemplation hereof ( "Service Order(s) "). This Wholesale Master Services
Agreement ( "WMSA" or "Agreement ") is comprised of the general terms and conditions contained in Sections 1 through 22 herein (the
"General Terms ") together with any appendices, Service Schedules and Service Orders attached or incorporated by reference, and the
foregoing shall be deemed one, integrated agreement and not as separate, severable contracts. The Service Schedules may be attached
hereto, separately executed, or added by amendment. All Services are subject to availability and approval of Customer's credit by WilTel
at the time of each Service Order.
2. WMSA Term. The WMSA (referring not to individual Services, which will each have their own term as described in Section 3
below) shall continue in effect for two (2) years from the Effective Date ( "WMSA Term "), and shall then automatically renew for
successive one (1) year periods ( "WMSA Renewal Term(s) "), unless either party gives written notice to the other party of non - renewal,
such notice to be delivered at least sixty (60) calendar days before the end of the WMSA Term or the WMSA Renewal Term.
Notwithstanding the prior sentence, unless Customer is in Default, any Service being provided at the time of termination of this WMSA
shall continue upon the terms and conditions of this WMSA until the end of the Service Term or any applicable Extension Period for
Service as specified in the applicable Service Order or until such Service Order is terminated; provided, however, that Customer may not
order any new Service until Customer and WilTel have entered into a new agreement or mutually agreed in writing to extend this
WMSA.
3. Service Term. The term for each Service as described in a Service Order shall be as indicated on the Service Order ( "Service
Term"). At the end of the Service Term for any Service, such Service shall continue on a month -to -month basis ( "Extension Period ")
unless either party gives written notice to the other that the Service(s) shall be disconnected, such notice to be delivered at least sixty (60)
calendar days before the end of the Service Term, or if during the Extension Period, then upon at least thirty (30) calendar days' prior
written notice. Notwithstanding the foregoing, if Customer disconnects Service and Customer has ordered its own local access service,
Customer must provide WilTel written notification of Customer's disconnect with the local access service provider in the form of a
disconnection firm order commitment ( "DFOC ") from the local access service provider.
4. Payment Terms and Charges. Customer agrees to pay recurring and non - recurring charges for WilTel Services, as set forth in
applicable Service Order and/or quote ( "Quote ") referenced in such Service Order and all charges for Third Party Services, if applicable.
WilTel provides and charges for Services in U.S. Dollars, commencing on the date WilTel notifies Customer that the relevant Service is
available for use by Customer. Subject to Section 5 below, all amounts stated on each invoice are due and payable within ten (10)
calendar days of the date of the invoice, except with respect to Services related to voice products, which shall be due and payable
immediately upon receipt of the invoice ( "Due Date "). Customer agrees to accept delivery of invoices electronically via the Internet and
agrees to remit payment via Automated Clearinghouse ( "ACH ") or wire transfer to WilTel Communications, LLC to the account
indicated on Customer's invoice. In the event Customer fails to make full payment of undisputed amounts by the Due Date, Customer
shall also pay a late fee in the amount of the lesser of (i) one and one -half percent (11/2%) per month or (ii) the maximum lawful monthly
rate under applicable state law, of the unpaid balance which amount shall accrue from the Due Date ( "Late Fee "). WilTel may make
billing adjustments for WilTel Services for a period of one hundred eighty (180) calendar days after the date a Service is rendered, and for
Third Party Services at any time within two (2) months of WilTel's receipt of any invoice from the Third Party Provider (defined in
Section 17 below), or any other time frame allowed by contract, law, or government rule or regulation, whichever is later. WilTel will
invoice Customer for any billing adjustments and Customer agrees to pay such amounts in accordance with this Section.
5. Billing Disputes. (a) Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (ii) present by
the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii)
negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days from the Due Date. (b) Disputed charges resolved
in favor of WilTel, with a Late Fee, are due and payable within ten (10) calendar days of WilTel's written notice denying the dispute,
which shall be the Due Date for such payment. Disputed charges resolved in favor of Customer will be credited to Customer on the
following month's billing cycle and no Late Fees shall apply.
6. Right to Assurance. If a Customer suffers a material adverse change in its financial condition, and/or if at any time during the Term
or Renewal Term the value of Services ordered by and/or delivered to Customer meets or exceeds Customer's established credit limit(s),
WilTel may: (i) require initial or additional financial information; (ii) request adequate assurance of Customer's performance per
applicable law, (iii) require adjustments to Customer's payment terms and/or (iv) decline to accept or process a Service Order.
7. Credit Default. A "Credit Default" shall occur (i) if Customer fails to make full and timely payment for all amounts due (subject to
Section 5 herein governing billing disputes) and/or (ii) if Customer fails to comply with a request for assurance as provided in Section 6
and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable. In the event of a Credit
Default, WilTel may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer upon written
notice; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this WMSA upon written notice. If this WMSA is
terminated because of a Credit Default, all Early Termination Charges (defined in Section 19 below) shall apply.
Page 1 of 12 WilTel is registered trademarks of WilTel Communications Group, Inc. WMSA (2005 -1Q)
The WilTel logo is a service mark of WilTel Communications Group, Inc.
8. Other Defaults, AUP Violation and Remedies. An "Other Default" shall occur if either party fails to perform or observe any
material term or obligation, excluding payment or right of assurance terms, contained in this WMSA, and any such failure remains
uncorrected for the lesser of thirty (30) calendar days after written notice from the non - defaulting party or such different cure period, if
any, as may be set forth below. In the event of an Other Default by Customer, WilTel may, in addition to its rights available to it at law
or in equity: (i) suspend any or all Services to Customer; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this
WMSA. If this WMSA is terminated because of an Other Default by Customer, all Early Termination Charges shall apply. In the event
of an Other Default by WilTel, Customer's remedies are limited to its proven direct damages and the right to terminate any or all affected
Service Orders, unless this WMSA provides for exclusive remedies in the applicable Service Schedule, in which case Customer's
remedies are exclusively as described therein. If Customer uses the Services for any unlawful purpose or in any unlawful manner, or
causes WilTel to violate any applicable law, such action shall be an Other Default and WilTel shall have the right immediately to suspend
and/or terminate any or all Services hereunder without notice to Customer. Customer affirms that it has reviewed and assented to the
Acceptable Use Policy ( "AUP ") posted on WilTel's AUP website at www.wiltel.com/customers /r use s.html, which is incorporated
herein by reference. A violation of the AUP shall be an Other Default. If the violation of the AUP affects WilTel's network, or other
parties on WilTel's network, WilTel shall have the right immediately to suspend and/or terminate any or all Services hereunder and/or the
WMSA without notice to Customer. For any violations of WilTel's AUP that are not affecting either WilTel's network or third parties on
WilTel's network, Customer shall, upon three (3) business days notice, have the opportunity to cure such violation prior to suspension or
termination. For the purposes of this WMSA, a Credit Default and/or an Other Default may each be referred to individually as a
"Default ".
9. Taxes and USF Charges. (a) If any local, state, national, international, public or quasi - public governmental entity or foreign
government or its political subdivision imposes any taxes (excluding taxes based on WilTel's net income or capital or any property
taxes), fees, surcharges, or other charges or impositions on WilTel as a result of WilTel's sale of Services or Customer's use of Services,
Customer shall pay any such impositions ( "Additional Charges ") and indemnify WilTel from any liability or expense associated with the
Additional Charges. (b) In addition, if Additional Charges are assessable to support the federal Universal Service Fund ( "USF") or any
similar local, state, national, international, or foreign fund, WilTel may elect to calculate and charge Customer in accordance with
applicable regulations of the government authority having jurisdiction ( "USF Charges "), unless Customer is paying such Additional
Charges directly or is otherwise exempt (as indicated by Customer in Appendix B). To the extent USF Charges apply to Services,
Customer shall also pay WilTel an administrative fee equal to one percent (1%) of the total WilTel charges for such Services.
10. Indemnity. (a) Customer and WilTel will release, defend, indemnify and hold harmless the other from and against any loss, debt,
liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or
unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and
attorneys' fees ( "Claim "), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out
of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this
WMSA or the provision of Services hereunder. (b) Customer will release, defend, indemnify and hold harmless WilTel and its officers,
directors, employees, contractors and agents from and against any Claim to the extent such Claim (i) is brought by a downstream
customer of Customer or an end user and arises out of an alleged defect in or failure of Service, or (ii) arises out of failure by Customer or
downstream customers of Customer or end users to obtain approval, consent, or authorization relating to the content transmitted over
WilTel's network, including without limitation claims relating to any violation of copyright law, export control laws, or that such
transmissions are libelous, slanderous, an invasion of privacy or illegal.
11. Limitation of Liability. EXCEPT TO THE EXTENT A PARTY IS REQUIRED TO INDEMNIFY THE OTHER PARTY
HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY'S PERFORMANCE OF OR FAILURE TO PERFORM ITS
OBLIGATIONS HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE
OR LOSS.
12. Warranties and Disclaimer of Warranty. WILTEL'S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET
FORTH ON THE APPLICABLE SERVICE SCHEDULE. WILTEL DISCLAIMS ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WILTEL MAKES NO WARRANTY WITH
RESPECT TO ANY THIRD PARTY SERVICES.
13. Compliance with Law. Customer's use of the Services and WilTel's provision of the Services shall be in accordance, and comply,
with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents and authorizations necessary to conduct its
business and initiate or conduct any transmissions over any facilities covered by this WMSA. WilTel shall obtain all approvals, consents
and authorizations necessary to conduct its business and to provide the Services covered by this WMSA. Customer and WilTel will
release, defend, indemnify and hold harmless the other from and against any Claim arising out of, resulting from or based upon the
indemnifying party's violation of any law, rule or regulation.
14. Force Maieure. Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent
performance is beyond its reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric
conditions such as rain fade, cable cut caused by a third party, governmental action, national emergencies, war, riot, insurrection,
terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts. If the force majeure event continues for a period
of thirty (30) calendar days, then either party may, without incurring liability, terminate the affected Services or circuits, except for
Customer's liability for any charges of a Third Party Provider.
15. Proprietary Information. Except as required by law or stock exchange rule, the terms and conditions of this WMSA and all
proprietary information exchanged by the parties and all documents referenced herein (including invoices) are confidential and shall not
be disclosed without prior written consent of the other party.
Page 2 of 12 WMSA (2005 -1Q)
16. Interstate Service Representation. WilTel and its Affiliates (defined in Section 21 below) shall not be obligated to make available
intrastate Service, e.g., any Service on a circuit which originates/terminates at points both of which are situated within a single state,
unless WilTel or its Affiliates specifically offer an intrastate Service, or an information Service as defined in 47 U.S.C. Section 153(20)
or unless Customer represents in writing that such Service (other than switched voice services) or circuit shall be used to carry more than
ten percent (10 %) interstate or foreign telecommunications traffic. Customer hereby represents that more than ten percent (10 %) of the
transmissions on each circuit shall be interstate transmissions or foreign transmissions as those terms are defined in 47 U.S.C. Sections
153(17) and 153(22). If it is determined at any time that such Service or circuit is subject to regulation by a U.S. State regulatory agency,
the Service or circuit may be provided by WilTel or its Affiliates pursuant to applicable state laws, regulations and applicable tariffs, or
WilTel and its Affiliates may discontinue provision of the affected Service or circuit.
17. Third Party Services. In conjunction with WilTel Service, WilTel may, upon Customer's request, arrange for Service to be
provided by a third party ( "Third Party Service "), such as local access service, interexchange service, or international service. WilTel
shall not be obligated to provision any Third Party Service except in connection with a Service Order for WilTel Service. In the event
Customer requests that WilTel order Third Party Service, WilTel shall provision and coordinate the installation of such Service and
conduct the initial testing of an interconnection between the WilTel Service and Third Party Service. WilTel will not begin billing
Customer for such Third Party Service until related WilTel Service is available. Customer may be required to execute a letter of
authorization ( "LOA "), in a form provided by WilTel, authorizing WilTel to deliver such Third Party Service to Customer's location.
When Customer requests international service, WilTel may arrange for the foreign end of the Service or for a portion of the foreign end of
the Service to be provided by a third party carrier licensed in the relevant foreign point. In some cases, WilTel may be unable, and
Customer may be required, to arrange the foreign end of such Service with a foreign carrier. Although this WMSA governs the terms of
WilTel's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required
commitments, termination liability, limitations, and other service - specific terms of the Third Party Service shall be those of the provider
of the Third Party Service ( "Third Party Provider "). All charges incurred by WilTel for such Third Party Service, including without
limitation monthly recurring charges, installation charges, non - recurring charges, and applicable termination/cancellation charges of the
Third Party Provider, shall be invoiced to Customer and Customer shall be responsible for payment thereof.
18. Customer Ordered Local Access Service. Customer may order its own local access services from a local access provider who has
established entrance facilities in a WilTel point of presence upon receipt of a LOA or letter of authorization/carrier facility assignment
( "LOA/CFA "). Customer may order its own local access service with a vendor who does not have established entrance facilities within
WilTel's point of presence only with WilTel's written permission. Customer's local access provider shall directly bill Customer for such
local access service. Customer shall ensure that Customer - ordered local access service is available at the same time as the WilTel Service
and shall be obligated to pay for WilTel Service regardless of whether Customer- ordered local access service is available.
19. Early Termination. Customer may disconnect any WilTel Service after installation by providing written notification to WilTel
sixty (60) calendar days in advance of the effective date of the disconnection and paying to WilTel an "Early Termination Charge" in an
amount equal to: (i) the recurring charges associated with the Service Term less any recurring charges already paid, (ii) any non -
recurring charges not yet paid by Customer, (iii) installation charges discounted or waived at the time Service was installed, (iv) any
termination liability associated with Third Party Services, and (v) the balance of any minimum commitments by Customer required under
this WMSA, if applicable. If Customer terminates any WilTel Service during an Extension Period as provided in Section 3 above,
Customer shall only be responsible for any non - recurring charges not yet paid by Customer together with termination liability associated
with Third Party Services. It is the express intent and understanding of the parties that, this WMSA and all Service Orders hereunder
being one integrated agreement and not separate, severable contracts, Customer's right to early termination of any Service is not a right to
"reject ", on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws. In the event Customer orders its
own local access service, Customer's written disconnection notice must also include a DFOC from the local access service provider as
described in Section 3.
20. Publicity. The parties contemplate and agree that publication of information surrounding this WMSA may occur through press
releases, articles, interviews, marketing materials, online materials, and/or speeches ( "Publicity"). Both parties must approve the content
of any such Publicity prior to its publication, which approval shall not be unreasonably withheld. Routine references to the fact that
Customer is a customer of WilTel including advising others of Customer's presence in a WilTel POP and the general nature of Services
that Customer purchases under this WMSA are not considered Publicity for purposes of this section, and Customer and WilTel each
authorize the other, during the WMSA Term, to make such references unless otherwise specified in a Service Schedule.
21. Arbitration. The parties agree that any and all disputes arising out of or in relation to this Agreement, including without limitation
any action in tort but excluding any action for a Billing Dispute as defined in Section 5, shall be resolved exclusively, finally and
conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial Arbitration &
Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two arbitrators will then select a third. The three member
panel will make the final decision. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for
their decision. The arbitration decision shall be final and binding on the parties. Notwithstanding the foregoing, the parties shall be
permitted to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue
for any such action shall be the Superior Court of California, Los Angeles County.
22. Miscellaneous. (a) Neither party shall assign or otherwise transfer its rights or obligations under this WMSA without the prior
written consent of the other party, which shall not be unreasonably withheld; provided, however, either party may freely assign this
WMSA, upon notice to the other party, to (i) an "Affiliate" (defined as an entity that controls, is controlled by or is under common
control), or (ii) in the event of a sale of all or substantially all of its assets, to the purchaser of those assets, or (iii) in the event of a merger,
acquisition or recapitalization of the assigning party, to the surviving entity (the sale of assets, merger, acquisition or recapitalization to be
referred to as a "Change of Control "). For the purposes of this Section, "control" means to have more than a fifty percent (50 %)
ownership interest. In the event of an assignment by Customer to an Affiliate, the acquiring or surviving entity or assignee (as applicable)
must be at least as creditworthy as Customer and no such assignment will release Customer from Customer's obligations herein,
including, but not limited to payment, except to the extent that the acquiring or surviving entity or assignee meets its obligations under
Page 3 of 12 WMSA (2005 -1Q)
this WMSA. (b) This WMSA shall be governed by the laws of the State of California without regard to choice of law principles. (c) No
rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this WMSA. (d) The
provisions of this WMSA are only for the benefit of the parties hereto, and no third party may seek to enforce or benefit from these
provisions. (e) If any term or provision of this WMSA shall, to any extent, be determined to be invalid or unenforceable by a court or
body of competent jurisdiction, then (i) both parties shall be relieved of all obligations arising under such provision and this WMSA shall
be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and
(ii) the remainder of this WMSA shall be valid and enforceable. (f) The failure of either party to enforce any provision hereof shall not
constitute the permanent waiver of such provision. (g) No termination of this WMSA shall affect the rights or obligations of either party:
(i) with respect to any payment for Services rendered before termination; or (ii) pursuant to other provisions of this WMSA that, by their
sense and context, are intended to survive termination of this WMSA, including without limitation, indemnification, confidentiality and
limitation of liability. (h) This WMSA, including the General Terms and appurtenant appendices, Service Schedules and Service Orders
(including Quotes referenced therein), any applicable tariff and WilTel's AUP Website, comprise all of the terms and conditions of the
agreement between the parties relating to the Services and constitute the complete and exclusive statement of the understanding between
the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to Services provided hereunder.
(i) Customer acknowledges that the provisioning of interstate telecommunications services by WilTel to Customer is contingent upon
Customer's submission to WilTel of the representation in the form set forth in Appendix B to this WMSA; either that Customer has
properly registered with the Federal Communications Commission ( "FCC "), pursuant to 47 CFR 64.1195 (and WilTel's confirmation of
the same), or that Customer is not a telecommunications carrier subject to the FCC's registration requirements. (j) Without in any way
diminishing the nature of these General Terms, appurtenant appendices, Service Schedules and Service Orders as one, integrated, non-
severable agreement, in the event of any inconsistency between or among a Service Order or Quote referenced therein, a Service
Schedule, the General Terms, WilTel's AUP website, and/or any applicable tariff, the following order of precedence shall prevail (from
highest priority to lowest): the applicable tariff, if any, specific pricing contained in a Service Order or Quote referenced therein, the
provisions contained in the applicable Service Schedule, these General Terms, WilTel's AUP website, the applicable Service Order and
the Quote referenced therein (except pricing). (k) In the event of a Default, the prevailing party shall have the right to recover its
reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of its rights under the WMSA. (1) This
WMSA may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute
one and the same WMSA. (m) Facsimile signatures to this WMSA shall be deemed to be binding upon the parties.
23. Authorized Representatives. The individuals named below who are executing this WMSA on behalf of the parties are duly
authorized to make the representations contained herein.
CUSTOMER: CITY OF VERNON
WILTEL COMMUNICATIONS, LLC:
By
By.
PtietedName:
LEONIS C. MALBURG
PrintedName:� ,. I
,/ta�1 tom -
Tak: MAYOR
Tuk:
Date (' l l rl c 5
ATTEST:
BRUCE V. MALKENHORST, JR., ACTING CITY CLERK
ERIC T. FRESCH, CITY ATTORNEY
Page 4 of 12
WMSA (2005 -1Q)
WMSA Appendix A
Service Schedules
Schedule 1 ❑ Private Line Service
Schedule 1A ❑ Private Line Service End -to -End
Schedule 2 ❑ ATM Service
Schedule 2A ❑ ATM Service End -to -End
Schedule 3 ❑ Frame Relay Service
Schedule 3A ❑ Frame Relay Service End -to -End
Schedule 4 ® Dedicated Internet Service
Schedule 4A ❑ Dedicated Internet Service End -to -End
Schedule 5 ® Direct Network Access
Schedule 6 ❑ Optical Wave Service
Schedule 7 ❑ Switched Voice Service
Schedule 7A ❑ Access - Egress Switched Voice Service
Schedule 7B ❑ Forced ANI Load Implementation Switched Voice Service
Schedule 8 0 Carrier Voice Services
Schedule 8A 0 Access — Egress Carrier Voice Service
Schedule 8B ❑ Forced ANI Load Implementation Carrier Voice Service
Schedule 8D 0 ISP Express Service - Carrier Voice Service
Schedule 9 ❑ EWAN Service
Schedule 9A ❑ EWAN Service End -to -End
Schedule 10 ❑ Colocation Service
Schedule 11 ❑ Multi - Protocol Label Switching Internet Protocol Virtual Private
Network Service
Schedule 11A0 Multi - Protocol Label Switching Internet Protocol Virtual Private
Network Service End -to -End
Schedule 12 ❑ Extended On -Net Service
Schedule 13 ❑ International Private Line Service
Schedule 14 ❑ International Backhaul
Schedule 15 ❑ IP -E Voice Service
Schedule 16 ❑ FocalPoint Service
Schedule 17 ❑ Managed CPE -IP Service
Schedule 18 ❑ Managed Security Service
Schedule 19 ❑ CPE Purchase / Sublease and CPE Services
Schedule P ❑ Professional Services
Schedule W ❑ WGVS Service
Page 5 of 12 WMSA (2005 -1Q)
•
Appendix B
Federal Universal Service Fund/ Attestation of Customer Status Form
WilTel's determination regarding application of the Federal Universal Service Fund ( "USF ") surcharge on the Service noted herein will be based
upon the representations and information provided in this attestation form. This attestation form also allows WilTel to fulfill its obligation to
verify that its customers have either filed Federal Communications Commission ( "FCC ") Form 499 -A or are not subject to that filing
requirement.
Customer is:
❑ End user' - A U.S. based Customer purchasing Service for its own internal use and not for resale.
❑ ISP - A U.S. based information services provider ( "ISP ") or non - common carrier telecommunications provider that is not making its own
USF contributions and is not required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Carrier - A telecommunications carrier" (including a reseller) that is using the Service to provide telecommunications service"' to the
public for a fee, and Customer:
❑ Will resell the Service in the form of telecommunications and will contribute directly to the Universal Service Administrator pursuant
to FCC rules.
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ Will use the Service to provide services for which all revenues are from non - domestic (i.e., non- U.S.'") end users, and Customer is not
required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Qualifies for the de minimis exemption under FCC rules ", has met its obligation to file a FCC Form 499A, and is not making direct
contributions to the USF but is making direct contributions to: ❑ LNP ❑ TRS ❑ NANPA (please mark all that apply).
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ International End User or ISP — A non -U.S. based" end user, information services provider or non - common carrier. To qualify as a non-
U.S. end user, Customer must (1) not be a citizen or permanent resident of the U.S. if an individual and, if a legal entity, not be created under the
laws of the United States, (2) not be qualified to transact business in the U.S. (e.g., through registration with a state secretary of state as a foreign
company), (3) have a billing address outside the U.S."", and (4) not use the service for communications that both originate and terminate within
the U.S.
Customer understands that if it designates that it is acting as a "telecommunications carrier, not contributing" under the de minimis exemption, a
"domestic end user," a "domestic information service provider," or "domestic non - common carrier," WilTel will apply the USF surcharges to the
appropriate revenues from the Service and charge them to Customer along with any applicable administrative surcharge set forth in the written
Agreement.
WilTel is relying upon the information provided by Customer in this representation and any subsequent amendments to determine whether USF
surcharges and administrative surcharges apply. If the information contained herein is determined to be incorrect or if it changes, Customer shall
pay any applicable surcharges for any Service WilTel had provided or that it subsequently provides, in each case together with late - payment
interest and any Customer indemnity obligation or other liability as set forth in the Agreement. If there is no applicable written Agreement
between Customer and WilTel, WilTel's standard Agreement form in effect at the time the Service Order is placed will apply. If, at any time,
Customer's representation above is no longer accurate, Customer shall notify WilTel within thirty (30) calendar days by completing and
submitting a new representation to WilTel at the address set forth on page 1 of the Agreement.
' A customer obtaining service for use in its own broadcast operations is an end user.
"The term `telecommunications carrier' means any provider of telecommunications services, except that such term does not include aggregators of
telecommunications services." 47 U.S.C. § 153(44).
"The term `telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used." 47 U.S.0 § 153(46). "The term `telecommunications' means the transmission, between or among
points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 47 U.S.C. §
153(43).
'" "U.S." and "United States" means the United States of America, its possessions, territories, states, districts, and commonwealths, including, without limitation,
Guam, Puerto Rico, and the U.S. Virgin Islands.
" 47 CFR § 54.708.
"' See footnote iii.
WilTel will waive this requirement if Customer demonstrates that use of a U.S. billing address is solely to facilitate payment by an agent acting on Customer's
behalf. Such waiver must be in writing to be effective.
Page 6 of 12 WMSA (2005 -1Q)
Dedicated Internet Access Service — Schedule 4
This Dedicated Internet Access Service Schedule ( "Schedule ") is part of the agreement under which WilTel provides WilTel
Service to Customer and which incorporates this Schedule (the "Agreement ").
1.1 Service Description. Dedicated Internet Access Service is a dedicated high -speed connection to the Internet ( "DIA Service ").
Over a single access port connection ( "Port"), Customer may select from several connectivity options, speeds, and billing methods
as outlined below. Internet Protocol ( "IP ") addresses and/or secondary domain naming system are also available. DIA Service will
meet the Service Level Agreements ( "SLA(s) ") as set forth in Section 2.2.
1.2 Connectivity and Speeds. Customer may choose from connectivity and Port speed options listed in the tables below.
Additional options may be available on an individual case basis ( "ICB ").
2.1 Tech
Internet Engineering Task Force ("IETF").
2.2 Service Level Agreement. (a) DIA Service shall perform in accordance with the Port availability, latency and packet loss
SLAs set forth below, which are measured between WilTel IP points of presence in which service level management servers are
deployed ( "Core IP POP(s) ") only. The Outage Credits provided below are Customer's sole and exclusive remedy for any failure,
interruption or degradation of the DIA Service.
i. Port Availability. Port availability is a measurement of the total time that DIA Service is operative when measured in a one
calendar month (720 hours) period. DIA Service is considered operative when the Customer can exchange IP packets over the
WilTel IP network via the Customer's Port. Port availability for DIA Service shall be 99.999 %.
ii. Latency. Latency is measured as the round trip time required for a 100 byte IP packet to travel between WilTel Core IP POPs,
averaged over a one calendar month (720 hours) period. Latency shall not exceed a Core IP POP network average of 45
milliseconds or a maximum of 100 - milliseconds average between any two Core IP POPs.
iii. Packet Loss: Packet loss is measured as the percentage of 100 byte IP packets lost between WilTel Core IP POPs, averaged
over a one calendar month (720 hours) period. Packet loss shall not exceed 0.50% average between any two Core IP POPs.
3.1 Pricing and Charges. Charges for DIA Service include monthly recurring charges ( "MRC(s) ") and non - recurring charges
( "NRC(s) "), and Customer agrees to pay in accordance with the Payment and Charges Section of the Agreement. MRCs and
NRCs contained in a Quote(s) but not included in a Service Order are only valid for thirty (30) calendar days. MRCs and NRCs
contained in a Quote that is incorporated into a Service Order are firm for the Service Term reflected on the applicable Service
Order; provided that NRCs associated with any customer requested change, including without limitation a change order,
supplement or tech assist, shall be provided at WilTel's then current standard NRC rate. WilTel shall provide Customer with thirty
(30) calendar days notice of any change to its standard NRC rate. The MRCs set forth in the Service Order shall continue to apply
throughout any Extension Period, except that the MRC associated with a Port ordered at a promotional rate, charges associated
with Third Party Services that are Service Term specific or are purchased under tariff, are subject to change at the end of the
Service Term, or anytime thereafter, upon thirty (30) calendar days written or electronic notice. At the end of a Service Term or at
any time during an Extension Period, Customer may re -term an existing Port by placing a new Service Order specifying a new
Service Term, which shall be provided at the rate set forth on the applicable Service Order.
3.2 Pricing Options. Customer can choose from flat rate and peak usage pricing.
a. Flat Rate Pricing. A flat rate Port is provisioned as a full Port giving Customer the ability to use the full Port bandwidth. The
MRC is fixed each month and does not change due to usage of the Port.
b. Peak Usage Pricing. A peak usage Port is provisioned as a full Port giving Customer the ability to use full Port bandwidth.
Customer may select peak usage pricing with or without a minimum usage commitment.. At the end of the month, WilTel will
reconcile Customer's Port usage to determine if usage charges apply. Usage charges are calculated by multiplying the Port usage
( "Mbps ") by the usage rate. Customer's Port usage is applied to the following month's invoice as an NRC based on the Port usage
for the preceding month. Port usage in a given month shall be the higher of either inbound or outbound traffic measured at the
ninety -fifth percentile (95 %) (remove top 5% of total traffic readings) based on traffic sampled every five (5) minutes and
aggregated in fifteen (15) minute increments, as determined by WilTel.
i. Peak Usage Pricing With Minimum Port Usage Commitment. If Customer selects peak usage pricing with a minimum
Port usage commitment on Customer Service Order, then Customer's usage charges will be based on all Port usage during the
month in excess of Customer's minimum Port usage commitment and calculated as described above. In addition to any
applicable usage charge, Customer will be charged an MRC that remains fixed during the Service Term equal to the minimum
commitment level multiplied by the usage rate, and no fixed Port charge is applied. If customer's Port usage is less than the
minimum Port usage commitment, Customer's MRC will not change.
Dedicated Internet Connectivity and Speed Options
Access\Port
Speed
DS-1
Ethernet
DS-3
Fast
Ethernet
OC -3
OC-
12
Gigabit
Ethernet
PPP
Yes
NA
Yes
NA
Yes
Yes
NA
Frame
Yes
NA
Yes
NA
NA
NA
NA
ATM
Yes
NA
Yes
NA
Yes
Yes
NA
SONET
NA
NA
_
NA
NA
Yes
Yes
NA
ETHERNET
NA
Yes
NA
Yes
NA
NA
Yes
For the purposes of this Schedule, NA shall mean Not Available
Page 7 of 3 Agreement (2005-1Q)
Dedicated Internet Access 'Service— Schedule 4
ii. Peak Usage Pricing Without Minimum Port Usage Commitment. If Customer selects peak usage pricing with no
minimum Port usage commitment on Customer's Service Order, then Customer's usage charges will be based on all Port
usage during the month and will be calculated as described above. In addition to any applicable usage charge, Customer will
be charged an MRC Port charge that remains fixed during the Service Term.
4. Implementation Intervals. WilTel's standard service implementation interval objective is set forth in the Table below.
WilTel shall make reasonable efforts to provide DIA Services within its standard service implementation interval. The start date
of such interval begins on the acceptance date as provided to Customer in WilTel's order confirmation document. Failure of
WilTel to deliver by such date shall not constitute a default under the Agreement and WilTel shall not be liable to pay to Customer
any penalties or da
Service Type
Standard Interval POP to POP
DS -1
10 business days
DS -3, OC -3, OC -12, Ethernet, Fast and Gigabit
Ethernet
15 business days
5.1 Outage Credits. (a) Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time
during which DIA Service does not conform to the SLA as set forth in Section 2.2 above ( "Outage "). An Outage shall begin upon
the earlier of WilTel's actual knowledge of the Outage or WilTel's receipt of notice from the Customer of the Outage, provided
that Customer has released all or part of the DIA Service for testing if requested by WilTel. In the event of an Outage, Customer
shall be entitled to a credit ( "Outage Credit ") upon WilTel receipt of Customer's written request for such Outage Credit. Such
written request must be received by WilTel within thirty (30) calendar days of the Outage and the Outage Credit shall be applied to
Customer's next monthly invoice. If WilTel does not receive Customer's written notice within such thirty (30) calendar day
period, Customer shall be deemed to waive its right to the Outage Credit.
i. For Port availability, the amount of Outage Credit shall be as set forth in the table below and is credited as a percentage of the
MRC for the affected Port. Outages greater than 26 seconds are aggregated monthly and the aggregate outage credit is subject to a
maximum monthly credit of 50% of the applicable MRC for the affected Port.
Length of outage
Amount of Credit (% of MRC)
0 to 26 seconds
No Credit
27 seconds to 59 minutes
5 %
1 hour to2 hours 59 minutes
10%
3 hours to 4 hours 59 minutes
20%
5 hours to 7 hours 59 minutes
30%
8 hours to 11 hours 59 minutes
40%
12 hours or more
50%
ii. For latency, the amount of Outage Credit shall be a one -time credit of 5% of the MRC for the affected Port during any
calendar month that the affected Port fails to conform to the latency SLA. WilTel will report latency each month.
iii. For packet loss, amount of Outage Credit shall be an amount equal to a one -time credit of 5 %of the MRC for the affected Port
during any calendar month that the affected Port fails to conform to the packet loss SLA. WilTel will report packet loss each
month.
(b). In no event shall WilTel's total liability for all Outages exceed a total of one (1) month's MRC for the affected Port during any
calendar month.
5.2 Exceptions. Customer shall not receive an Outage Credit if the Outage is: (i) caused by Customer or others authorized by
Customer to use the DIA Services under the Agreement including failure to comply with all installation requirements including
environmental requirements for the applicable equipment; (ii) due to the failure of power, facilities, equipment, systems or
connections not provided by WilTel; (iii) caused by the failure of Third Party Service to WilTel's network; (iv) the result of
maintenance activities as set forth in Section 6.1 and Section 6.2 of this Schedule; or (v) due to a force majeure event as defined in
the Agreement.
6.1 Planned Network Maintenance Period ( "PNMP(s)"). WilTel shall avoid performing PNMP between 0600 to 2200 local
time, Monday through Friday. WilTel shall provide Customer with electronic mail, telephone, facsimile, or written notice of a
PNMP (i) not less than three (3) business days prior to performing a PNMP that in WilTel's reasonable opinion, has a substantial
likelihood of affecting Customer's traffic for up to fifty (50) milliseconds, or (ii) not less than ten (10) business days prior to
performing a PNMP that in WilTel's reasonable opinion, has a substantial likelihood of affecting Customer's traffic for more than
fifty (50) milliseconds. If the PNMP is canceled or delayed, WilTel shall promptly notify Customer and shall comply with the
provisions of this Section 6.1 to reschedule the PNMP.
6.2 Emergency Network Maintenance Period ( "ENMP(s)"). It may be necessary for WilTel to issue notification of an ENMP.
ENMPs allow WilTel to perform mandated maintenance with a shorter Customer notification interval than PNMPs.
7. Warranty. Subject to the warranty provisions set forth in the Agreement, WilTel warrants that DIA Service shall conform to
SLAs as set forth in Section 2.2 above. WilTel shall use commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the DIA Service and restore such DIA Service to comply with the
terms hereof. THE OUTAGE CREDIT(S) AS SET FORTH IN SECTION 5.1 SHALL BE THE SOLE AND EXCLUSIVE
Page 8 of 3 Agreement (2005-1Q)
Dedicated Internet•Access•$ervice— Schedule 4
REMEDY(IES) OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF DIA
SERVICE OR FOR BREACH OF THIS WARRANTY.
Page 9 of 3 Agreement (2005-1Q)
Direct Network Access Service— Schedule 5
This Direct Network Access Service Schedule ( "Schedule ") is part of the agreement under which WilTel provides WilTel Service to
Customer and which incorporates this Service Schedule (the "Agreement ").
1. Service Description. Direct Network AccesssM ( "DNA ") is a Wi1Tele provided web -based portal that will provide Customer with a
partitioned view into the portion of WilTel's network used by Customer through a graphical user interface ( "GUI "). Customer may
access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing and
data Service Orders for supported WilTel Services. OneStop is a function of DNA, allowing Customer the ability to place and manage
voice Service Orders as well as conduct expansive search activities. For purposes of this Schedule, references to WilTel Services shall be
deemed to be the Network Portion of WilTel Services where applicable.
2. Service Request. In order to receive access to DNA, Customer must have ordered WilTel Services. Customer must also complete
the "Request for Customer Administrator Access" form, attached hereto as Exhibit 1, prior to receiving access to DNA.
3. Availability of Service. WilTel reserves the right to change the basic functionality and information available to Customer through
DNA including adding or removing DNA features. WilTel will make reasonable efforts to provide thirty (30) days notice to Customer of
any material change to DNA. WilTel will provide use of the basic functions of DNA to Customer at no charge. Upon mutual agreement
between Customer and WilTel, enhanced functionality or additional features to the base system may be provided to Customer for a fee.
4. License. WilTel grants to Customer a limited, non - exclusive, non - transferable license (without the right to sublicense) to use DNA
for the purposes described herein. This license shall continue for so long as Customer is purchasing WilTel Service(s) under the
Agreement or until terminated by WilTel. WilTel is granting Customer no other rights or interest in DNA. This license is granted solely
to access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing
and Service Orders for supported WilTel Services as provided in accordance with the Agreement and this Schedule. Customer shall not
allow any third party access to DNA including access or use by an end user of the WilTel Service or any external dissemination or
duplication by Customer. Customer shall not sell, transfer, publish, disclose, display or otherwise make available DNA or information
obtained through DNA to any third party except for providing end users with utilization information specific to such end user. Customer
shall not copy, de- compile, reverse - engineer or otherwise attempt to derive the source code from DNA. Customer acknowledges that
DNA and all rights therein, including any patent, copyright, trademark, trade secret, any other intellectual property right, and related
source code are the exclusive property of WilTel and WilTel retains all such right, title and interest in DNA. This license grant shall not
entitle Customer to any service upgrades, maintenance, support, customization, modification, or enhancement to DNA. Customer
acknowledges and irrevocably authorizes WilTel's rights in, and all ownership and use of, data and Customer information compiled by
WilTel, including without limitation data and information arising out of use of DNA. Such acknowledgement and authorization is not
intended to limit or expand either party's rights or obligations with respect to Customer Proprietary Network Information (as then defined
by FCC rules, regulations and/or orders). Customer acknowledges that the information compiled is a representation of the WilTel
Service(s) and WilTel network performance and shall not be used to determine failure by WilTel to meet any applicable SLAs, if any.
WilTel reserves the right to terminate or limit Customer's use and access to DNA or replace DNA with another application, in WilTel's
sole discretion. Customer's inability to use DNA will not relieve Customer of its obligations to pay for Service nor will it give rise to any
WilTel obligation to pay Customer any Outage Credits.
5. Termination. Use of DNA for purposes other than those specifically set forth in this Schedule shall entitle WilTel to suspend or
terminate Customer's access to DNA. Should Customer misuse DNA, WilTel shall have the right to immediately terminate this Schedule
or suspend Customer's use of DNA until Customer can show that such misuse has been identified and corrected to WilTel's satisfaction.
Should Customer terminate associated WilTel Service(s) or fail to pay for monthly Service in accordance with Section 4 of the
Agreement, WilTel shall have the right to immediately terminate this Schedule or suspend Customer's use of DNA.
6. Use of DNA. Customer agrees not to enter into DNA any data that is profane, threatening, indecent, libelous, defamatory or
unlawful, or that violates or infringes any trademark, copyright or similar rights of others. Customer agrees not to knowingly enter any
data that is false or misleading. WilTel reserves the right to deny access to any user or group of users to DNA, at its sole discretion, at
any time, and for any reason or no reason. Customer agrees to indemnify, defend and hold harmless WilTel from any and all claims
arising from or related to Customer's use of or access to DNA.
7. Planned Maintenance Activity. From time to time WilTel may perform maintenance on its operating systems, which may cause
DNA to be unavailable. Whenever possible, WilTel will attempt to perform planned network maintenance during non - business hours. In
no event will any maintenance or other interruption of DNA give rise to any liability on behalf of WilTel.
8. Customer Responsibilities.
a. Customer shall appoint a "Customer DNA Administrator" ( "Administrator ") who will be responsible for setting up the security and
administration of Customer's use of DNA. The Administrator shall also be required to complete the "Request for Customer
Administrator Access" form, which will be submitted to WilTel. Customer shall assign each of its users a separate ID for entry into DNA
and Customer will control the level of security for each user (i.e. to which accounts /functions/features of DNA each user will have
access).
b. Customer shall have sole responsibility for the security, administration and actions of its users of DNA.
c. Customer shall use DNA only for the purposes as described in this Schedule.
d. Customer shall have the sole responsibility for adequate protection and backup of its data used in connection with DNA and
Customer shall not have any claim against WilTel for any reason relating to Customer's use of, or inability to use DNA including without
limitation claims for lost data, inaccurate data, work delays, or lost profits.
e. WilTel shall not be liable for any lack of action due to failure to receive information from Customer via DNA.
9. No Warranty. It is understood by Customer that DNA is provided "as-is" and WilTel makes no representations or warranties
regarding its use. WILTEL HEREBY DISCLAIMS ALL WARRANTIES INCLUDING ANY IMPLIED REPRESENTATIONS
OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, or that the use of DNA or any
Page 10 of 12 Agreement (2004- 1Q.v5)
Direct Network Access service — Schedule 5
Exhibit 1
Request for Customer Administrator Access
New ❑
Modify ❑ Delete ❑
Date:
First Name:
Company:
Phone:
Please Complete All Fields
Last Name:
Title:
Current Network Login ID:
Email Address:
Physical Address:
Primary Networking Contact:
Initial Number of DNA Users:
WilTel Service Purchased: Data ❑ Voice ❑ Other
Special Instructions: Authority to use the DNA is granted in accordance with the WilTel
DNA Service Schedule executed by WilTel and Customer. In the event WilTel and
Customer have not executed such a Schedule and Customer is allowed access to DNA, the
provision of DNA shall be subject to the terms and conditions in such DNA Service
Schedule. Customer understands that misuse of the DNA may result in the termination of its
rights to use DNA. Customer will assign each of its users their own DNA passwords and
will ensure that each user does not reveal their password to any other person.
Page 12 of 12 Agreement (2004- 1Q.v5)
DIA
Service Order Form
Price Quote #: 1 -OOHZ9
LOCATION PRICING UNE ITEMS
Local Access
DIA PRICING LINE ITEMS
DIA Usage
Install/NRC $
MRC $
$2,702.00
$2,660.98
$0.00
$0.00
InstaIIlNRC $
MRC $
$1,000.00
$1,403.00
$0.00
$0.00
MISCELLANEOUS PRICING UNE ITEM
InstaIUNRC $
MRC $
v
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
'Totals:
Install/NRC $
MRC $
$3,702.00
$4,063.98
Usage in excess of 25 mbps billed at $56.12 per mbps.
This Service Order is subject to, governed by and co nalubes an integral part of the relevant service agreement (Agreement" by and bete een bWTel Can. LLC OWN" and
Customer, (unless the Service is subject to any avpllcable Whet deaf, in which cue the tarif stag govern the provision of Ads Seance), and each Sent oOrder shad, together with the
Agreement, be.deaned one, integrated agreement and notes separate severable contacts.
Customer hereby represents more than 10% of the Customer's use of Service and or circuit provided by WHTei Pursuant to this Order will be interstate telecommunications. If it is
determined at any time such klearechanger Service or circuit is subject to state pagination, the Intereschange service or tarot may be provided by Wired or is ag isles, pursuant*
applicable state l w and appIcatle Tara!
WI Ters receipt of this service Order, including any implementation thereof, shag not be deemed an acceptance of an offer, and stall not obligate WITet to provide the Seance requested
herein unless and unlit a relevant service agreement *executed by both parties.
In the ward that WArei has provisioned Service pursherhtto this Service Order in contemplation of, but prior by, the execution and dN&ery Oa rlevantservbe agreemern and/orients*
schedules), this Service Order is subject to, tied by and constitutes an integral pant of Wirers relevant standard torn smite agrsemeat andbr relevant service sdheutoe(sj in effect
at the time the Service Order is placed.
This Service Order aid not be fully implemented until the customers credit has been approved, and Wirers denial of customers credit shall autonhaticWy and without further notice
cancel this Service Older.
Alt Service is provided in accordance with the processes and procedures set forth in Wirers Customer Data Guidelines, which may be found at
http: / /www.wittei.com /customers /contentiguldelines.htm
Insert Special Terms & Conditions here
Customer Company Name
Printed Name
Authorized Representative
Title
P/Te
ITe/�
COMMUNICATIONS
Billing Account Name: City of Vernon
Billing Account #:
Customer Order Contact: Ali Nour
Order Contact Phone #: 323-583-8811 x 316
DIA
Service Order Form
03/30/05
Customer Order Contact Email: ar r@ca,vernon.ca.us
Customer Install Contact:
Customer Install Phone #:
Customer Install! Contact Cell #:
GSA:
Customer Interface Type:
DSn Coding & Framing:
Customer Premise Equip:
Reverse DNS:
Tier Size:
If GSA is Yes, IFF:
Serial DS3 (PPP) - Fit
V I # of IP Address(es) Requested:
Customer Provided
Burst Range:
Billing Option:
-I
CPE Type:
Price Quote #: 1 -OHHZ9
Customer PON:
CRDD:
TSP:
Circuit Term:
Interval:
Standard
12 Months
V
/24 256 (Class C)
Usage (Complete Commit Level)
If Other:
Access Type:
Access Provider:
CFA/lle Down:
Jack Type:
Local Access - WdTeI Ordered
V
Use Existing TWC & Channel Assignment:
Site Name: City of Vernon - City Hall
Address: 4305 South Santa Fe
Bldg/Floor/Suite/Room:
City: Vernon
Commitment Level: 25mbps
If Other.
If Other:
- I DNS:
None
Route Advertising Method:
Mbps
BGP
NPA/NXX:
Access Hours:
Site Contact Name:
W(ITel to Extend the Demarc or Install inside wiring beyond the minimum point of entry
Extended Demarc Location/Assignment:
State: CA
Zip:
Site Contact Phone:
Click & Type Special Instructions into this space. Please include diversity requirements:
SUPPORTING
DOCUMENTS
This Wholesale Master Service Agreement is effective this 3rd day of August, 2005 ( "Effective Date "),
— by and between WilTel Communications, LLC, located at One Technology Center, 100 South
Cincinnati, 13th Floor, Tulsa, Oklahoma, 74103, a Delaware limited liability company ( "WilTel "), and
COMMUNICATIONS City of Vernon, located at 4305 S. Santa Fe Ave., Vernon, California 90058, a California corporation
( "Customer ").
1. Services. Subject to the Customer placing orders and WilTel accepting such orders as contemplated herein, Customer agrees to
purchase, and WilTel agrees to provide, the services described in the attached service schedule(s) ( "Service Schedule(s) ") as indicated in
Appendix A (check as applicable) (the "WilTel Services "), and Third Party Service described in Section 17 (WilTel Services and Third
Party Service, collectively or individually, the "Services "). WilTel Services may consist of any combination of WilTel's voice products
and/or data products (each referred to as "Network Services "), and/or professional services. All Services shall be provided according to
the terms and conditions in this WMSA (defined below) and as specified in an accepted order for Services placed by Customer
contemporaneously herewith, subsequent hereto or in contemplation hereof ( "Service Order(s) "). This Wholesale Master Services
Agreement ( "WMSA" or "Agreement ") is comprised of the general terms and conditions contained in Sections 1 through 22 herein (the
"General Terms ") together with any appendices, Service Schedules and Service Orders attached or incorporated by reference, and the
foregoing shall be deemed one, integrated agreement and not as separate, severable contracts. The Service Schedules may be attached
hereto, separately executed, or added by amendment. All Services are subject to availability and approval of Customer's credit by WilTel
at the time of each Service Order.
2. WMSA Term. The WMSA (referring not to individual Services, which will each have their own term as described in Section 3
below) shall continue in effect for two (2) years from the Effective Date ( "WMSA Term "), and shall then automatically renew for
successive one (1) year periods ( "WMSA Renewal Term(s) "), unless either party gives written notice to the other party of non- renewal,
such notice to be delivered at least sixty (60) calendar days before the end of the WMSA Term or the WMSA Renewal Term.
Notwithstanding the prior sentence, unless Customer is in Default, any Service being provided at the time of termination of this WMSA
shall continue upon the terms and conditions of this WMSA until the end of the Service Term or any applicable Extension Period for
Service as specified in the applicable Service Order or until such Service Order is terminated; provided, however, that Customer may not
order any new Service until Customer and WilTel have entered into a new agreement or mutually agreed in writing to extend this
WMSA.
3. Service Term. The term for each Service as described in a Service Order shall be as indicated on the Service Order ( "Service
Term "). At the end of the Service Term for any Service, such Service shall continue on a month -to -month basis ( "Extension Period ")
unless either party gives written notice to the other that the Service(s) shall be disconnected, such notice to be delivered at least sixty (60)
calendar days before the end of the Service Term, or if during the Extension Period, then upon at least thirty (30) calendar days' prior
written notice. Notwithstanding the foregoing, if Customer disconnects Service and Customer has ordered its own local access service,
Customer must provide WilTel written notification of Customer's disconnect with the local access service provider in the form of a
disconnection firm order commitment ( "DFOC ") from the local access service provider.
4. Payment Terms and Charges. Customer agrees to pay recurring and non-recurring charges for WilTel Services, as set forth in
applicable Service Order and/or quote ( "Quote ") referenced in such Service Order and all charges for Third Party Services, if applicable.
WilTel provides and charges for Services in U.S. Dollars, commencing on the date WilTel notifies Customer that the relevant Service is
available for use by Customer. Subject to Section 5 below, all amounts stated on each invoice are due and payable within ten (10)
calendar days of the date of the invoice, except with respect to Services related to voice products, which shall be due and payable
immediately upon receipt of the invoice ( "Due Date "). Customer agrees to accept delivery of invoices electronically via the Internet and
agrees to remit payment via Automated Clearinghouse ( "ACH ") or wire transfer to WilTel Communications, LLC to the account
indicated on Customer's invoice. In the event Customer fails to make full payment of undisputed amounts by the Due Date, Customer
shall also pay a late fee in the amount of the lesser of (i) one and one -half percent (1' /2 %) per month or (ii) the maximum lawful monthly
rate under applicable state law, of the unpaid balance which amount shall accrue from the Due Date ( "Late Fee "). WilTel may make
billing adjustments for WilTel Services for a period of one hundred eighty (180) calendar days after the date a Service is rendered, and for
Third Party Services at any time within two (2) months of WilTel's receipt of any invoice from the Third Party Provider (defined in
Section 17 below), or any other time frame allowed by contract, law, or government rule or regulation, whichever is later. WilTel will
invoice Customer for any billing adjustments and Customer agrees to pay such amounts in accordance with this Section.
5. Billing Disputes. (a) Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (ii) present by
the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii)
negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days from the Due Date. (b) Disputed charges resolved
in favor of WilTel, with a Late Fee, are due and payable within ten (10) calendar days of WilTel's written notice denying the dispute,
which shall be the Due Date for such payment. Disputed charges resolved in favor of Customer will be credited to Customer on the
following month's billing cycle and no Late Fees shall apply.
6. Right to Assurance. If a Customer suffers a material adverse change in its financial condition, and/or if at any time during the Term
or Renewal Term the value of Services ordered by and/or delivered to Customer meets or exceeds Customer's established credit limit(s),
WilTel may: (i) require initial or additional financial information; (ii) request adequate assurance of Customer's performance per
applicable law, (iii) require adjustments to Customer's payment terms and/or (iv) decline to accept or process a Service Order.
7. Credit Default. A "Credit Default" shall occur (i) if Customer fails to make full and timely payment for all amounts due (subject to
Section 5 herein governing billing disputes) and/or (ii) if Customer fails to comply with a request for assurance as provided in Section 6
and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable. In the event of a Credit
Default, WilTel may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer upon written
notice; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this WMSA upon written notice. If this WMSA is
terminated because of a Credit Default, all Early Termination Charges (defined in Section 19 below) shall apply.
Page 1 of 12 WilTel is registered trademarks of WilTel Communications Group, Inc. WMSA (2005 -1Q)
The WilTel logo is a service mark of WilTel Communications Group, Inc.
8. Other Defaults, AUP Violation and Remedies. An "Other Default" shall occur if either party fails to perform or observe any
material term or obligation, excluding payment or right of assurance terms, contained in this WMSA, and any such failure remains
uncorrected for the lesser of thirty (30) calendar days after written notice from the non - defaulting party or such different cure period, if
any, as may be set forth below. In the event of an Other Default by Customer, WilTel may, in addition to its rights available to it at law
or in equity: (i) suspend any or all Services to Customer; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this
WMSA. If this WMSA is terminated because of an Other Default by Customer, all Early Termination Charges shall apply. In the event
of an Other Default by WilTel, Customer's remedies are limited to its proven direct damages and the right to terminate any or all affected
Service Orders, unless this WMSA provides for exclusive remedies in the applicable Service Schedule, in which case Customer's
remedies are exclusively as described therein. If Customer uses the Services for any unlawful purpose or in any unlawful manner, or
causes WilTel to violate any applicable law, such action shall be an Other Default and WilTel shall have the right immediately to suspend
and/or terminate any or all Services hereunder without notice to Customer. Customer affirms that it has reviewed and assented to the
Acceptable Use Policy ( "AUP ") posted on WilTel's AUP website at www.wiltel.comlcustomers/r use s.html, which is incorporated
herein by reference. A violation of the AUP shall be an Other Default. If the violation of the AUP affects WilTel's network, or other
parties on WilTel's network, WilTel shall have the right immediately to suspend and/or terminate any or all Services hereunder and/or the
WMSA without notice to Customer. For any violations of WilTel's AUP that are not affecting either WilTel's network or third parties on
WilTel's network, Customer shall, upon three (3) business days notice, have the opportunity to cure such violation prior to suspension or
termination. For the purposes of this WMSA, a Credit Default and/or an Other Default may each be referred to individually as a
"Default ".
9. Taxes and USF Charges. (a) If any local, state, national, international, public or quasi- public governmental entity or foreign
government or its political subdivision imposes any taxes (excluding taxes based on WilTel's net income or capital or any property
taxes), fees, surcharges, or other charges or impositions on WilTel as a result of WilTel's sale of Services or Customer's use of Services,
Customer shall pay any such impositions ( "Additional Charges ") and indemnify WilTel from any liability or expense associated with the
Additional Charges. (b) In addition, if Additional Charges are assessable to support the federal Universal Service Fund ("USF") or any
similar local, state, national, international, or foreign fund, WilTel may elect to calculate and charge Customer in accordance with
applicable regulations of the government authority having jurisdiction ( "USF Charges "), unless Customer is paying such Additional
Charges directly or is otherwise exempt (as indicated by Customer in Appendix B). To the extent USF Charges apply to Services,
Customer shall also pay WilTel an administrative fee equal to one percent (1 %) of the total WilTel charges for such Services.
10. Indemnity. (a) Customer and WilTel will release, defend, indemnify and hold harmless the other from and against any loss, debt,
liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or
unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and
attorneys' fees ( "Claim "), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out
of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this
WMSA or the provision of Services hereunder. (b) Customer will release, defend, indemnify and hold harmless WilTel and its officers,
directors, employees, contractors and agents from and against any Claim to the extent such Claim (i) is brought by a downstream
customer of Customer or an end user and arises out of an alleged defect in or failure of Service, or (ii) arises out of failure by Customer or
downstream customers of Customer or end users to obtain approval, consent, or authorization relating to the content transmitted over
WilTel's network, including without limitation claims relating to any violation of copyright law, export control laws, or that such
transmissions are libelous, slanderous, an invasion of privacy or illegal.
11. Limitation of Liability. EXCEPT TO THE EXTENT A PARTY IS REQUIRED TO INDEMNIFY THE OTHER PARTY
HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY'S PERFORMANCE OF OR FAILURE TO PERFORM ITS
OBLIGATIONS HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE
OR LOSS.
12. Warranties and Disclaimer of Warranty. WILTEL'S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET
FORTH ON THE APPLICABLE SERVICE SCHEDULE. WILTEL DISCLAIMS ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WILTEL MAKES NO WARRANTY WITH
RESPECT TO ANY THIRD PARTY SERVICES.
13. Compliance with Law. Customer's use of the Services and WilTel's provision of the Services shall be in accordance, and comply,
with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents and authorizations necessary to conduct its
business and initiate or conduct any transmissions over any facilities covered by this WMSA. WilTel shall obtain all approvals, consents
and authorizations necessary to conduct its business and to provide the Services covered by this WMSA. Customer and WilTel will
release, defend, indemnify and hold harmless the other from and against any Claim arising out of, resulting from or based upon the
indemnifying party's violation of any law, rule or regulation.
14. Force Majeure. Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent
performance is beyond its reasonable control for reasons including, without limitation, acts of God, fire, explosion, atmospheric
conditions such as rain fade, cable cut caused by a third party, governmental action, national emergencies, war, riot, insurrection,
terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts. If the force majeure event continues for a period
of thirty (30) calendar days, then either party may, without incurring liability, terminate the affected Services or circuits, except for
Customer's liability for any charges of a Third Party Provider.
15. Proprietary Information. Except as required by law or stock exchange rule, the terms and conditions of this WMSA and all
proprietary information exchanged by the parties and all documents referenced herein (including invoices) are confidential and shall not
be disclosed without prior written consent of the other party.
Page 2 of 12 WMSA (2005 -1Q)
16. Interstate Service Representation. WilTel and its Affiliates (defined in Section 21 below) shall not be obligated to make available
intrastate Service, e.g., any Service on a circuit which originates /terminates at points both of which are situated within a single state,
unless WilTel or its Affiliates specifically offer an intrastate Service, or an information Service as defined in 47 U.S.C. Section 153(20)
or unless Customer represents in writing that such Service (other than switched voice services) or circuit shall be used to carry more than
ten percent (10 %) interstate or foreign teleconuuunications traffic. Customer hereby represents that more than ten percent (10 %) of the
transmissions on each circuit shall be interstate transmissions or foreign transmissions as those terms are defined in 47 U.S.C. Sections
153(17) and 153(22). If it is determined at any time that such Service or circuit is subject to regulation by a U.S. State regulatory agency,
the Service or circuit may be provided by WilTel or its Affiliates pursuant to applicable state laws, regulations and applicable tariffs, or
WilTel and its Affiliates may discontinue provision of the affected Service or circuit.
17. Third Party Services. In conjunction with WilTel Service, WilTel may, upon Customer's request, arrange for Service to be
provided by a third party ( "Third Party Service "), such as local access service, interexchange service, or international service. WilTel
shall not be obligated to provision any Third Party Service except in connection with a Service Order for WilTel Service. In the event
Customer requests that WilTel order Third Party Service, WilTel shall provision and coordinate the installation of such Service and
conduct the initial testing of an interconnection, between the WilTel Service and Third Party Service. WilTel will not begin billing
Customer for such Third Party Service until related WilTel Service is available. Customer may be required to execute a Letter of
authorization ( "LOA "), in a form provided by WilTel, authorizing WilTel to deliver such Third Party Service to Customer's location.
When Customer requests international service, WilTel may arrange for the foreign end of the Service or for a portion of the foreign end of
the Service to be provided by a third party carrier licensed in the relevant foreign point. In some cases, WilTel may be unable, and
Customer may be required, to arrange the foreign end of such Service with a foreign carrier. Although this WMSA governs the terms of
WilTel's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required
commitments, termination liability, limitations, and other service - specific terms of the Third Party Service shall be those of the provider
of the Third Party Service ( "Third Party Provider "). All charges incurred by WilTel for such Third Party Service, including without
limitation monthly. recurring charges, installation charges, non - recurring charges, and applicable termination /cancellation charges of the
Third Party Provider, shall be invoiced to Customer and Customer shall be responsible for payment thereof.
18. Customer Ordered Local Access Service. Customer may order its own local access services from a local access provider who has
established entrance facilities in a WilTel point of presence upon receipt of a LOA or letter of authorization/carrier facility assignment
( "LOA/CFA "). Customer may order its own local access service with a vendor who does not have established entrance facilities within
WilTel's point of presence only with WilTel's written permission. Customer's local access provider shall directly bill Customer for such
local access service. Customer shall ensure that Customer - ordered local access service is available at the same time as the WilTel Service
and shall be obligated to pay for WilTel Service regardless of whether Customer- ordered local access service is available.
19. Early Termination. Customer may disconnect any WilTel Service after installation by providing written notification to WilTel
sixty (60) calendar days in advance of the effective date of the disconnection and paying to WilTel an "Early Termination Charge" in an
amount equal to: (i) the recurring charges associated with the Service Term less any recurring charges already paid, (ii) any non-
recurring charges not yet paid by Customer, (iii) installation charges discounted or waived at the time Service was installed, (iv) any
termination liability associated with Third Party Services, and (v) the balance of any minimum commitments by Customer required under
this WMSA, if applicable. If Customer terminates any WilTel Service during an Extension Period as provided in Section 3 above,
Customer shall only be responsible for any non - recurring charges not yet paid by Customer together with termination liability associated
with Third Party Services. It is the express intent and understanding of the parties that, this WMSA and all Service Orders hereunder
being one integrated agreement and not separate, severable contracts, Customer's right to early termination of any Service is not a right to
"reject ", on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws. In the event Customer orders its
own local access service, Customer's written disconnection notice must also include a DFOC from the local access service provider as
described in Section 3.
20. Publicity. The parties contemplate and agree that publication of information surrounding this WMSA may occur through press
releases, articles, interviews, marketing materials, online materials, and/or speeches ( "Publicity"). Both parties must approve the content
of any such Publicity prior to its publication, which approval shall not be unreasonably withheld. Routine references to the fact that
Customer is a customer of WilTel including advising others of Customer's presence in a WilTel POP and the general nature of Services
that Customer purchases under this WMSA are not considered Publicity for purposes of this section, and Customer and WilTel each
authorize the other, during the WMSA Term, to make such references unless otherwise specified in a Service Schedule.
21. Arbitration. The parties agree that any and all disputes arising out of or in relation to this Agreement, including without limitation
any action in tort but excluding any action for a Billing Dispute as defined in Section 5, shall be resolved exclusively, finally and
conclusively by arbitration in Los Angeles County, California under the auspices of and pursuant to the rules of the Judicial Arbitration &
Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two arbitrators will then select a third. The three member
panel will make the final decision. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for
their decision. The arbitration decision shall be final and binding on the parties. Notwithstanding the foregoing, the parties shall be
permitted to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue
for any such action shall be the Superior Court of California, Los Angeles County.
22. Miscellaneous. (a) Neither party shall assign or otherwise transfer its rights or obligations under this WMSA without the prior
written consent of the other party, which shall not be unreasonably withheld; provided, however, either party may freely assign this
WMSA, upon notice to the other party, to (i) an "Affiliate" (defined as an entity that controls, is controlled by or is under common
control), or (ii) in the event of a sale of all or substantially all of its assets, to the purchaser of those assets, or (iii) in the event of a merger,
acquisition or recapitalization of the assigning party, to the surviving entity (the sale of assets, merger, acquisition or recapitalization to be
referred to as a "Change of Control "). For the purposes of this Section, "control" means to have more than a fifty percent (50 %)
ownership interest. In the event of an assignment by Customer to an Affiliate, the acquiring or surviving entity or assignee (as applicable)
must be at least as creditworthy as Customer and no such assignment will release Customer from Customer's obligations herein,
including, but not limited to payment, except to the extent that the acquiring or surviving entity or assignee meets its obligations under
Page 3 of 12 WMSA (2005 -1Q)
this WMSA. (b) This WMSA shall be governed by the laws of the State of California without regard to choice of law principles. (c) No
rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this WMSA. (d) The
provisions of this WMSA are only for the benefit of the parties hereto, and no third party may seek to enforce or benefit from these
provisions. (e) If any term or provision of this WMSA shall, to any extent, be determined to be invalid or unenforceable by a court or
body of competent jurisdiction, then (i) both parties shall be relieved of all obligations arising under such provision and this WMSA shall
be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and
(ii) the remainder of this WMSA shall be valid and enforceable. (1) The failure of either party to enforce any provision hereof shall not
constitute the permanent waiver of such provision. (g) No termination of this WMSA shall affect the rights or obligations of either party:
(i) with respect to any payment for Services rendered before termination; or (ii) pursuant to other provisions of this WMSA that, by their
sense and context, are intended to survive termination of this WMSA, including without limitation, indemnification, confidentiality and
limitation of liability. (h) This WMSA, including the General Terms and appurtenant appendices, Service Schedules and Service Orders
(including Quotes referenced therein), any applicable tariff and WilTel's AUP Website, comprise all of the terms and conditions of the
agreement between the parties relating to the Services and constitute the complete and exclusive statement of the understanding between
the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to Services provided hereunder.
(i) Customer acknowledges that the provisioning of interstate telecommunications services by WilTel to Customer is contingent upon
Customer's submission to WilTel of the representation in the form set forth in Appendix B to this WMSA; either that Customer has
properly registered with the Federal Communications Commission ( "FCC "), pursuant to 47 CFR 64.1195 (and WilTel's confirmation of
the same), or that Customer is not a telecommunications carrier subject to the FCC's registration requirements. (j) Without in any way
diminishing the nature of these General Terms, appurtenant appendices, Service Schedules and Service Orders as one, integrated, non-
severable agreement, in the event of any inconsistency between or among a Service Order or Quote referenced therein, a Service
Schedule, the General Terms, WilTel's AUP website, and/or any applicable tariff, the following order of precedence shall prevail (from
highest priority to lowest): the applicable tariff, if any, specific pricing contained in a Service Order or. Quote referenced therein, the
provisions contained in the applicable Service Schedule, these General Terms, WilTel's AUP website, the applicable Service Order and
the Quote referenced therein (except pricing). (k) In the event of a Default, the prevailing party shall have the right to recover its
reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of its rights under the WMSA. (1) This
WMSA may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute
one and the same WMSA. (m) Facsimile signatures to this WMSA shall be deemed to be binding upon the parties.
23. Authorized Representatives. The individuals named below who are executing this WMSA on behalf of the parties are duly
authorized to make the representations contained herein.
CUSTOMER: City of Vernon
WILTEL COMMUNICATIONS, LLC:'
By
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a . /I<<AL1
'
By
PtuttedName:
Thomas A Y•arra
Printed
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Title:
-
Mayor Pro —Tem
Tale:
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Attest:
1
BRI1'` V. MALKENHORST, JR., ACTINe CITY CLERK
APPROVED AS TO FORM
ERIC T. FRESCIj/, CITY ATTORNEY
Page 4 of 12
WMSA (2005 -1Q)
WMSA Appendix A
Service Schedules
Schedule 1 ❑ Private Line Service
Schedule lA ❑ Private Line Service End - to-End
Schedule 2
Schedule 2A
Schedule 3
Schedule 3A
Schedule 4
Schedule 4A
Schedule 5
Schedule 6
Schedule 7
Schedule 7A
Schedule 7B
Schedule 8
Schedule 8A
Schedule 8B
Schedule 8D
Schedule 9
Schedule 9A
Schedule 10
Schedule 11
❑ ATM Service
❑ ATM Service End -to -End
❑ Frame Relay Service
❑ Frame Relay Service End -to -End
►t Dedicated Internet Service
❑ Dedicated Internet Service End -to -End
® Direct Network Access
❑ Optical Wave Service
❑ Switched Voice Service
❑ Access — Egress Switched Voice Service
❑ Forced ANI Load Implementation Switched Voice Service
❑ Carrier Voice Services
❑ Access — Egress Carrier Voice Service
❑ Forced ANI Load Implementation Carrier Voice Service
❑ ISP Express Service - Carrier Voice Service
❑ EWAN Service
❑ EWAN Service End -to -End
❑ Colocation Service
❑ Multi - Protocol Label Switching Internet Protocol Virtual Private
Network Service
Schedule 11A❑ Multi- Protocol Label Switching Internet Protocol Virtual Private
Network Service End -to -End
❑ Extended On -Net Service
❑ International Private Line Service
❑ International Backhaul
❑ IP -E Voice Service
❑ FocalPoint Service
❑ Managed CPE -IP Service
❑ Managed Security Service
❑ CPE Purchase / Sublease and CPE Services
❑ Professional Services
❑ WGVS Service
Schedule 12
Schedule 13
Schedule 14
Schedule 15
Schedule 16
Schedule 17
Schedule 18
Schedule 19
Schedule P
Schedule W
Page 5 of 12 WMSA (2005 -1Q)
Appendix B
Federal Universal Service Fund/ Attestation of Customer Status Form
WilTel's determination regarding application of the Federal Universal Service Fund ( "USF ") surcharge on the Service noted herein will be based
upon the representations and information provided in this attestation form. This attestation form also allows WilTel to fulfill its obligation to
verify that its customers have either filed Federal Communications Commission ( "FCC ") Form 499 -A or are not subject to that filing
requirement. -
Customer is:
❑ End user` - A U.S. based Customer purchasing Service for its own internal use and not for resale.
❑ ISP - A U.S. based information services provider ( "ISP ") or non - common carrier telecommunications provider that is not making its own
USF contributions and is not required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Carrier - A telecommunications carrier" (including a reseller) that is using the Service to provide telecommunications service"' to the
public for a fee, and Customer:
❑ Will resell the Service in the foram of telecommunications and will contribute directly to the Universal Service Administrator pursuant
to FCC rules.
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ Will use the Service to provide services for which all revenues are from non - domestic (i.e., non- U.S.'") end users, and Customer is not
required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Qualifies for the de minimis exemption under FCC rules ", has met its obligation to file a FCC Form 499A, and is not making direct
contributions to the USF but is making direct contributions to: ❑ LNP ❑ TRS ❑ NANPA (please mark all that apply).
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ International End User or ISP - A non -U.S. based" end user, information services provider or non - common carrier. To qualify as a non-
U.S. end user, Customer must (1) not be a citizen or permanent resident of the U.S. if an individual and, if a legal entity, not be created under the
laws of the United States, (2) not be qualified to transact business in the U.S. (e.g., through registration with a state secretary of state as a foreign
company), (3) have a billing address outside the U.S."", and (4) not use the service for communications that both originate and terminate within
the U.S.
Customer understands that if it designates that it is acting as a "telecommunications carrier, not contributing" under the de minimis exemption, a
"domestic end user," a "domestic information service provider," or "domestic non - common carrier," WilTel will apply the USF surcharges to the
appropriate revenues from the Service and charge them to Customer along with any applicable administrative surcharge set forth in the written
Agreement.
WilTel is relying upon the information provided by Customer in this representation and any subsequent amendments to determine whether USF
surcharges and administrative surcharges apply. If the information contained herein is determined to be incorrect or if it changes, Customer shall
pay any applicable surcharges for any Service WilTel had provided or that it subsequently provides, in each case together with late - payment
interest and any Customer indemnity obligation or other liability as set forth in the Agreement. If there is no applicable written Agreement
between Customer and WilTel, WilTel's standard Agreement form in effect at the time the Service Order is placed will apply. If, at any time,
Customer's representation above is no longer accurate, Customer shall notify WilTel within thirty (30) calendar days by completing and
submitting a new representation to WilTel at the address set forth on page 1 of the Agreement.
' A customer obtaining service for use in its own broadcast operations is an end user. -
"The term `telecommunications carrier' means any provider of telecommunications services, except that such term does not include aggregators of
telecommunications services." 47 U.S.C. § 153(44).
"The term `telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used." 47 U.S.0 § 153(46). "The term `telecommunications' means the transmission, between or among
points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 47 U.S.C. §
153(43). -
iv "U.S." and "United States" means the United States of America, its possessions, territories, states, districts, and commonwealths, including, without limitation,
Guam, Puerto Rico, and the U.S. Virgin Islands.
47 CFR § 54.708.
"' See footnote iii.
WilTel will waive this requirement if Customer demonstrates that use of a U.S. billing address is solely to facilitate payment by an agent acting on Customer's
behalf. Such waiver must be in writing to be effective.
Page 6 of 12 WMSA (2005 -1Q)
Dedicated Internet Access Service — Schedule 4
This Dedicated Internet Access Service Schedule ( "Schedule ") is part of the agreement under which WilTel provides WilTel
Service to Customer and which incorporates this Schedule (the "Agreement ").
1.1 Service Description. Dedicated Internet Access Service is a dedicated high -speed connection to the Internet ( "DIA Service ").
Over a single access port connection ( "Port"), Customer may select from several connectivity options, speeds, and billing methods
as outlined below. Internet Protocol ( "IP ") addresses and/or secondary domain naming system are also available. DIA Service will
meet the Service Level Agreements ( "SLA(s) ") as set forth in Section 2.2.
1.2 Connectivity and Speeds. Customer may choose from connectivity and Port speed options listed in the tables below.
Additiona
Dedicated Internet Connectivity and Speed Options
Access\Port
Speed
DS-1
Ethernet
DS-3
Fast
Ethernet
OC -3
OC-
12
Gigabit
Ethernet
PPP
Yes
NA
Yes
NA
Yes
Yes
NA
Frame
Yes
NA
Yes
NA
NA
NA
NA
ATM
Yes
NA
Yes
NA
Yes
Yes
NA
SONET
NA
NA
NA
NA
Yes
Yes
NA
ETHERNET
NA
Yes
NA
Yes
NA
NA
Yes
For the purposes of this Schedule, NA shall mean Not Available
2.1 Technical Specifications WilTel has designed DIA Service to conforrn with the technical standards as specified by the
Internet Engineering Task Force ( "IETF").
2.2 Service Level Agreement. (a) DIA Service shall perform in accordance with the Port availability, latency and packet loss
SLAs set forth below, which are measured between WilTel IP points of presence in which service level management servers are
deployed ( "Core IP POP(s) ") only. The Outage Credits provided below are Customer's sole and exclusive remedy for any failure,
interruption or degradation of the DIA Service.
i. Port Availability. Port availability is a measurement of the total time that DIA Service is operative when measured in a one
calendar month (720 hours) period. DIA Service is considered operative when the Customer can exchange IP packets over the
WilTel IP network via the Customer's Port. Port availability for DIA Service shall be 99.999 %.
ii. Latency. Latency is measured as the round trip time required for a 100 byte IP packet to travel between WilTel Core IP POPs,
averaged over a one calendar month (720 hours) period. Latency shall not exceed a Core IP POP network average of 45
milliseconds or a maximum of 100 - milliseconds average between any two Core IP POPs.
iii. Packet Loss: Packet loss is measured as the percentage of 100 byte IP packets lost between WilTel Core IP POPs, averaged
over a one calendar month (720 hours) period. Packet loss shall not exceed 0.50% average between any two Core IP POPs.
3.1 Pricing and Charges. Charges for DIA Service include monthly recurring charges ( "MRC(s) ") and non - recurring charges
( "NRC(s) "), and Customer agrees to pay in accordance with the Payment and Charges Section of the Agreement. MRCs and
NRCs contained in a Quote(s) but not included in a Service Order are only valid for thirty (30) calendar days. MRCs and NRCs
contained in a Quote that is incorporated into a Service Order are firm for the Service Term reflected on the applicable Service
Order; provided that NRCs associated with any customer requested change, including without limitation a change order,
supplement or tech assist, shall be provided at WilTel's then current standard NRC rate. WilTel shall provide Customer with thirty
(30) calendar days notice of any change to its standard NRC rate. The MRCs set forth in the Service Order shall continue to apply
throughout any Extension Period, except that the MRC associated with a Port ordered at a promotional rate, charges associated
with Third Party Services that are Service Term specific or are purchased under tariff, are subject to change at the end of the
Service Term, or anytime thereafter, upon thirty (30) calendar days written or electronic notice. At the end of a Service Term or at
any time during an Extension Period, Customer may re -term an existing Port by placing a new Service Order specifying a new
Service Term, which shall be provided at the rate set forth on the applicable Service Order.
3.2 Pricing Options. Customer can choose from flat rate and peak usage pricing.
a. Flat Rate Pricing. A flat rate Port is provisioned as a full Port giving Customer the ability to use the full Port bandwidth. The
MRC is fixed each month and does not change due to usage of the Port.
b. Peak Usage Pricing. A peak usage Port is provisioned as a full Port giving Customer the ability to use full Port bandwidth.
Customer may select peak usage pricing with or without a minimum usage commitment.. At the end of the month, WilTel will
reconcile Customer's Port usage to determine if usage charges apply. Usage charges are calculated by multiplying the Port usage
( "Mbps ") by the usage rate. Customer's Port usage is applied to the following month's invoice as an NRC based on the Port usage
for the preceding month. Port usage in a given month shall be the higher of either inbound or outbound traffic measured at the
ninety-fifth percentile (95 %) (remove top 5% of total traffic readings) based on traffic sampled every five (5) minutes and
aggregated in fifteen (15) minute increments, as determined by WilTel.
i. Peak Usage Pricing With Minimum Port Usage Commitment. If Customer selects peak usage pricing with a minimum
Port usage commitment on Customer Service Order, then Customer's usage charges will be based on all Port usage during the
month in excess of Customer's minimum Port usage commitment and calculated as described above. In addition to any
applicable usage charge, Customer will be charged an MRC that remains fixed during the Service Term equal to the minimum
commitment level multiplied by the usage rate, and no fixed Port charge is applied. If customer's Port usage is less than the
minimum Port usage commitment, Customer's MRC will not change.
Page 7 of 3 Agreement (2005 -1 Q)
Dedicated Internet Access Service—Schedule 4
ii. Peak Usage Pricing Without Minimum Port Usage Commitment. If Customer selects peak usage pricing with no
minimum Port usage commitment on Customer's Service Order, then Customer's usage charges will be based on all Port
usage during the month and will be calculated as described above. In addition to any applicable usage charge, Customer will
be charged an MRC Port charge that remains fixed during the Service Term.
4. Implementation Intervals. WilTel's standard service implementation interval objective is set forth in the Table below.
WilTel shall make reasonable efforts to provide DIA Services within its standard service implementation interval. The start date
of such interval begins on the acceptance date as provided to Customer in WilTel's order confirmation document. Failure of
WilTel to deliver by such date shall not constitute a default under the Agreement and WilTel shall not be liable to pay to Customer
any penalties or d
Service Type
Standard Interval POP to POP
DS -1
10 business days
DS -3, OC -3, OC -12, Ethernet, Fast and Gigabit
Ethernet
15 business days
5.1 Outage Credits. (a) Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time
during which DIA Service does not conform to the SLA as set forth in Section 2.2 above ( "Outage "). An Outage shall begin upon
the earlier of WilTel's actual knowledge of the Outage or WilTel's receipt of notice from the Customer of the Outage, provided
that Customer has released all or part of the DIA Service for testing if requested by WilTel. In the event of an Outage, Customer
shall be entitled to a credit ( "Outage Credit") upon WilTel receipt of Customer's written request for such Outage Credit. Such
written request must be received by WilTel within thirty (30) calendar days of the Outage and the Outage Credit shall be applied to
Customer's next monthly invoice. If WilTel does not receive Customer's written notice within such thirty (30) calendar day
period, Customer shall be deemed to waive its right to the Outage Credit.
i. For Port availability, the amount of Outage Credit shall be as set forth in the table below and is credited as a percentage of the
MRC for the affected Port. Outages greater than 26 seconds are aggregated monthly and the aggregate outage credit is subject to a
maximum monthly credit of 50% of the applicable MRC for the affected Port.
Length of outage
Amount of Credit (% of MRC)
0 to 26 seconds
No Credit
27 seconds to 59 minutes
5 %
1 hour to2 hours 59 minutes
10%
3 hours to 4 hours 59 minutes
20%
5 hours to 7 hours 59 minutes
30%
8 hours to 11 hours 59 minutes
40%
12 hours or more
50%
ii. For latency, the amount of Outage Credit shall be a one -time credit of 5% of the MRC for the affected Port during any
calendar month that the affected Port fails to conform to the latency SLA. WilTel will report latency each month.
iii. For packet loss, amount of Outage Credit shall be an amount equal to a one -time credit of 5 %of the MRC for the affected Port
during any calendar month that the affected Port fails to conform to the packet loss SLA. WilTel will report packet loss each
month.
(b). In no event shall WilTel's total liability for all Outages exceed a total of one (1) month's MRC for the affected Port during any
calendar month.
5.2 Exceptions. Customer shall not receive an Outage Credit if the Outage is: (i) caused by Customer or others authorized by
Customer to use the DIA Services under the Agreement including failure to comply with all installation requirements including
environmental requirements for the applicable equipment; (ii) due to the failure of power, facilities, equipment, systems or
connections not provided by WilTel; (iii) caused by the failure of Third Party Service to WilTel's network; (iv) the result of
maintenance activities as set forth in Section 6.1 and Section 6.2 of this Schedule; or (v) due to a force majeure event as defined in
the Agreement.
6.1 Planned Network Maintenance Period ("PNMP(s)"). WilTel shall avoid performing PNMP between 0600 to 2200 local
time, Monday through Friday. WilTel shall provide Customer with electronic mail, telephone, facsimile, or written notice of a
PNMP (i) not less than three (3) business days prior to performing a PNMP that in WilTel's reasonable opinion, has a substantial
likelihood of affecting Customer's traffic for up to fifty (50) milliseconds, or (ii) not less than ten (10) business days prior to
performing a PNMP that in WilTel's reasonable opinion, has a substantial likelihood of affecting Customer's traffic for more than
fifty (50) milliseconds. If the PNMP is canceled or delayed, WilTel shall promptly notify Customer and shall comply with the
provisions of this Section 6.1 to reschedule the PNMP.
6.2 Emergency Network Maintenance Period ( "ENMP(s)"). It may be necessary for WilTel to issue notification of an ENMP.
ENMPs allow WilTel to perform mandated maintenance with a shorter Customer notification interval than PNMPs.
7. Warranty. Subject to the warranty provisions set forth in the Agreement, WilTel warrants that DIA Service shall conform to
SLAs as set forth in Section 2.2 above. WilTel shall use commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the DIA Service and restore such DIA Service to comply with the
terms hereof. THE OUTAGE CREDITS) AS SET FORTH IN SECTION 5.1 SHALL BE '111I SOLE AND EXCLUSIVE
Page 8 of 3 Agreement (2005 -1Q)
Dedicated Internet Access Service — Schedule 4
REMEDY(IES) OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF DIA
SERVICE OR FOR BREACH OF THIS WARRANTY.
Page 9 of 3 Agreement (2005-1Q)
Direct Network Access Service—Schedule 5
This Direct Network Access Service Schedule ( "Schedule ") is part of the agreement under which WilTel provides WilTel Service to
Customer and which incorporates this Service Schedule (the "Agreement ").
1. Service Description. Direct Network AccesssM ( "DNA ") is a WilTel® provided web -based portal that will provide Customer with a
partitioned view into the portion of WilTel's network used by Customer through a graphical user interface ( "GUI"). Customer may
access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing and
data Service Orders for supported WilTel Services. OneStop is a function of DNA, allowing Customer the ability to place and manage
voice Service Orders as well as conduct expansive search activities. For purposes of this Schedule, references to WilTel Services shall be
deemed to be the Network Portion of WilTel Services where applicable.
2. Service Request. In order to receive access to DNA, Customer must have ordered WilTel Services. Customer must also complete
the "Request for Customer Administrator Access" form, attached hereto as Exhibit 1, prior to receiving access to DNA.
3. Availability of Service. WilTel reserves the right to change the basic functionality and information available to Customer through
DNA including adding or removing DNA features. WilTel will make reasonable efforts to provide thirty (30) days notice to Customer of
any material change to DNA. WilTel will provide use of the basic functions of DNA to Customer at no charge. Upon mutual agreement
between Customer and WilTel, enhanced functionality or additional features to the base system may be provided to Customer for a fee.
4. License. WilTel grants to Customer a limited, non - exclusive, non - transferable license (without the right to sublicense) to use DNA
for the purposes described herein. This license shall continue for so long as Customer is purchasing WilTel Service(s) under the
Agreement or until terminated by WilTel. WilTel is granting Customer no other rights or interest in DNA. This license is granted solely
to access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing
and Service Orders for supported WilTel Services as provided in accordance with the Agreement and this Schedule. Customer shall not
allow any third party access to DNA including access or use by an end user of the WilTel Service or any external dissemination or
duplication by Customer. Customer shall not sell, transfer, publish, disclose, display or otherwise make available DNA or information
obtained through DNA to any third party except for providing end users with utilization information specific to such end user. Customer
shall not copy, de- compile, reverse - engineer or otherwise attempt to derive the source code from DNA. Customer acknowledges that
DNA and all rights therein, including any patent, copyright, trademark, trade secret, any other intellectual property right, and related
source code are the exclusive property of WilTel and WilTel retains all such right, title and interest in DNA. This license grant shall not
entitle Customer to any service upgrades, maintenance, support, customization, modification, or enhancement to DNA. Customer
acknowledges and irrevocably authorizes WilTel's rights in, and all ownership and use of, data and Customer information compiled by
WilTel, including without limitation data and information arising out of use of DNA. Such acknowledgement and authorization is not
intended to limit or expand either party's rights or obligations with respect to Customer Proprietary Network Information (as then defined
by FCC rules, regulations and/or orders). Customer acknowledges that the information compiled is a representation of the WilTel
Service(s) and WilTel network performance and shall not be used to determine failure by WilTel to meet any applicable SLAB, if any.
WilTel reserves the right to terminate or limit Customer's use and access to DNA or replace DNA with another application, in WilTel's
sole discretion. Customer's inability to use DNA will not relieve Customer of its obligations to pay for Service nor will it give rise to any
WilTel obligation to pay Customer any Outage Credits.
5. Termination. Use of DNA for purposes other than those specifically set forth in this Schedule shall entitle WilTel to suspend or
terminate Customer's access to DNA. Should Customer misuse DNA, WilTel shall have the right to immediately terminate this Schedule
or suspend Customer's use of DNA until Customer can show that such misuse has been identified and corrected to WilTel's satisfaction.
Should Customer terminate associated WilTel Service(s) or fail to pay for monthly Service in accordance with Section 4 of the
Agreement, WilTel shall have the right to immediately terminate this Schedule or suspend Customer's use of DNA.
6. Use of DNA. Customer agrees not to enter into DNA any data that is profane, threatening, indecent, libelous, defamatory or
unlawful, or that violates or infringes any trademark, copyright or similar rights of others. Customer agrees not to knowingly enter any
data that is false or misleading. WilTel reserves the right to deny access to any user or group of users to DNA, at its sole discretion, at
any time, and for any reason or no reason. Customer agrees to indemnify, defend and hold harmless WilTel from any and all claims
arising from or related to Customer's use of or access to DNA.
7. Planned Maintenance Activity. From time to time WilTel may perform maintenance on its operating systems, which may cause
DNA to be unavailable. Whenever possible, WilTel will attempt to perform planned network maintenance during non - business hours. In
no event will any maintenance or other interruption of DNA give rise to any liability on behalf of WilTel.
8. Customer Responsibilities.
a. Customer shall appoint a "Customer DNA Administrator" ( "Administrator") who will be responsible for setting up the security and
administration of Customer's use of DNA. The Administrator shall also be required to complete the "Request for Customer
Administrator Access" form, which will be submitted to WilTel. Customer shall assign each of its users a separate ID for entry into DNA
and Customer will control the level of security for each user (i.e. to which accounts/functions/features of DNA each user will have
access).
b. Customer shall have sole responsibility for the security, administration and actions of its users of DNA.
c. Customer shall use DNA only for the purposes as described in this Schedule.
d. Customer shall have the sole responsibility for adequate protection and backup of its data used in connection with DNA and
Customer shall not have any claim against WilTel for any reason relating to Customer's use of, or inability to use DNA including without
limitation claims for lost data, inaccurate data, work delays, or lost profits.
e. WilTel shall not be liable for any lack of action due to failure to receive information from Customer via DNA.
9. No Warranty. It is understood by Customer that DNA is provided "as-is" and WilTel makes no representations or warranties
regarding its use. WILTEL HEREBY DISCLAIMS ALL WARRANTIES INCLUDING ANY IMPLIED REPRESENTATIONS
OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, or that the use of DNA or any
Page 10 of 12 Agreement (2004- 1Q.v5)
Direct Network Access Service — Schedule 5
information relating thereto or contained therein will not infringe any copyright or trademark of any third person. WilTel makes no
warranty as to the accuracy of any information contained in DNA.
10. Limitation of Liability. IN THE EVENT OF ANY INTERRUPTION OR FAILURE OF DNA OR ANY DAMAGE OR LOSS
ASSOCIATED WITH CUSTOMER'S USE OF DNA, WHATSOEVER, WILTEL SHALL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY
LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF WILTEL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE OR LOSS.
Page 11 of 12 Agreement (2004- 1Q.v5)
Direct Network Access Service—Schedule 5
Exhibit 1
Request for Customer Administrator Access
New ❑
Modify ❑ Delete ❑
Please Complete All Fields
Date:
First Name:
Company:
Phone:
Email Address:
Physical Address:
Primary Networking Contact:
Initial Number of DNA Users:
WilTel Service Purchased: Data ❑
Last Name:
Title:
Current Network Login ID:
Voice ❑ Other
Special Instructions: Authority to use the DNA is granted in accordance with the WilTel
DNA Service Schedule executed by WilTel and Customer. In the event WilTel and
Customer have not executed such a Schedule and Customer is allowed access to DNA, the
provision of DNA shall be subject to the terms and conditions in such DNA Service
Schedule. Customer understands that misuse of the DNA may result in the termination of its
rights to use DNA. Customer will assign each of its users their own DNA passwords and
will ensure that each user does not reveal their password to any other person.
Page 12 of 12 Agreement (2004- 1Q.v5)
iii.„-...-
i/Te/W
COMMUNICATIONS
LOCATION PRICING LINE ITEMS
Local Access
DIA PRICING LINE ITEMS
DIA Usage
MISCELLANEOUS PRICING LINE ITEM
DIA
Service Order Form
InstalUNRC $
MRC $
$2,702.00
$2,660.98
$0.00
$0.00
lnstaIIINRC $
MRC $
$1 ,000.00
$1,403.00
$0.00
$0.00
Install/WC $
MRCS
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
InstalUNRC $
MRC
'Totals:
$3,702.00
$4,063.98
Price Quote #: 1 -OOHZ9
Usage in excess of 25 mbps bitted at 356.12 per mbps.
This Service Order is subject to, governed by and constitutes an integral part lithe relevant service agreement ("Agreement" by and between Wild Communicanons, LLC {AST*, and
Customer, (unless the Service is subject to any applicable WitTel tarn, m which case the tariff shalt govern the provision et this Service), and each Service Order shalt, together **the
Agreement be deemed one, integrated agreement and not as separate severable contracts.
Customer hereby represents more than 1b% of the Customer's use of Service and or circuit provided by WIITei Pursuant to this Order win be interstate telecommunications. If A is
deterrninhed at any time such beerexchange Service or cscu t is subject to state regebOon, the kitOrentharlje scree a or circuit nay be provided by WyTei or bu amain bunion**
applicable stabs law, Regulations and appltpbieTarif.
WITers receipt of this Service Order, including any Implementation thereof, stall not be deemed an acceptance of am offer, and shall not obligate WilTei to provide the Service reyrwstad
herein unless and until a relevant service agreement isexecuted by both parties.
In the event that Wild has provisioned Service pursuant to this Service Order in contemplation of, but prior*, the mion and delivery of a relevant se nice agreement and/or service
schedule(s), this Service Order is subject to governed by and censtbdes an integral pad of WWTers relevant standard Corm servke agreement anther relevant service schedule(*) in effect
at the One the Service Order is ptaced.
This Service Order vat not be fully implemented until the customer's credit has been approved, and VltTers denial of customers credit stall automatically and without further nonce
cared this Service Order.
All Service is provided in accordance with the processes and procedures set forty in W1Ters Customer Data Guidelines, which may be found at
htto://www.wittel,corn/customers/content/guidelines,htm
Inert Special Terms & Conditions here
Customer Company Name
Printed Name
Authorized Representative
Title
l
COMMUNICATIONS sr
Billing Account Name: City of Vernon
Billing Account #:
Customer Order Contact: Ali NOW
DIA
Service Order Form
Order Contact Phone #: 323- 583 -8811 x 316
Customer Order Contact Email: anour/bci.vemon.ca.us
Customer Instal Contact:
Customer install Phone #:
Customer Install) Contact Cell #:
GSA:
♦
Customer Interface Type:
DSn Coding & Framing:
Customer Premise Equip'
Reverse DNS:
Tier Size:
Burst Range:
If GSA is Yes, IFF:
♦
Serial DS3 (PPP) - FR
♦
♦, # of IP Address(es) Requested:
Customer Provided
♦
♦
Billing Option:
CPE Type:
Price Quote #: 1 -0H HZ9
Customer PON:
CRDD:
TSP:
Circuit Term:
Interval:
Standard
♦
12 Month
♦
/24 - 256 (Class C)
Usage (Complete Commit Level)
If Other:
♦
Access Type:
Access Provider
CFA/Tie Down:
Jack Type:
Local Access - WfTel Ordered
♦
PBT
♦
Use Existing TiNC & Channel Assignment:
Site Name: City of Vernon - City Hall
Address: 4305 South Santa Fe
Bldg/Floor /Suite/Room:
City: Vemon
Commitment Level: 25mbps
If Other.
If Other.
♦I:
None
Route Advertising Method:
Mbps
BGP
NPAINXX:
Access Hours:
Site Contact Name:
V1rRel to Extend the Demarc or Install Inside wiring beyond the minimum point of entry:
Extended Demarc Location/Assignment:
State: CA
Zip:
Site Contact Phone:
I ♦I
Click & Type Special Instructions into this space. Please include diversity requirements.
Note: Duplicate additional Worksheets as required to accommodate additional gear.
Section A - Leased - u
Total Lease Equipment
Associated Services
Section B - Purchased -.1. ;.
QTY
Vendor Part Number
Vendor ' --
One Time Fee
Wife! Part Number
Associated Services
Section C - Services
Equinix Chicago
350 E Cermak
.. • , 11-10036
12/1512004
QTY
WIITei Part Number
WIITeI
One Time Fee Month
Fee
HT AND POWER DEPARTMENT
INTER- DEPARTMENT MEMORANDUM
April 21, 2005
TO Bruce V. Malkenhorst, City Administrator /CEO of Light and ower
FROM: Jorge C. Somoano, Engineering Operations Manager (I.
Subject: Fiber Optic Pilot Program Dedicated Internet Access Con on -
WilTel Communications
Staff is recommending that in order to have reliable service that two different dedicated
Internet service providers be acquired at different locations. Staffwith the assistance of R.W.
Beck have evaluated options and at this time recommends that Vernon procures the services
of WilTel Communications. Attached is the Wholesale Master Service Agreement for the
City of Vernon to purchase dedicated Internet services bandwidth from WilTel
Communications. The Term of the agreement is for two years and monthly recurring charges
are $1,653 and a one-time signup charge of $3,500.00. The connection to WilTel
Communications will be at 818 W. 7m Street in Los Angeles via Los Angeles Department of
Water & Power (LADWP) leased fiber connection.
WilTel Communications will be one of the two upstream Internet Service Providers that will
supply large Internet bandwidth to our fiber network system. The second connection to the
Internet is in the quote evaluation process and the most suitable provider for the second
connection will be selected shortly. The two connections will be in downtown Los Angeles
major communications central offices. Upon connection to these upstream service providers,
the City network will be able to decimate services to businesses in Vernon with smaller
portions of the leased bandwidth.
The interconnections to the upstream Internet service providers are budgeted and funds are
available. In order to facilitate the approval, I recommend that you be authorized to sign the
attached agreement. A
Thank you for your consideration on this matter. 1'�- l �.Y
Attachments
JS /ARN
c: City Attorney
Ali Nour
(pc), 1CiA = 3q (012 .so
CITY OF VERNON, CALIFORNIA
PURCHASE REQUISITION
LIGHT &POWER
LP No. 15 9 2
(DEOARTM €NT: LIGHT AND POWER
REQUESTOR NAME: ALI R. NOUR
DATE: 4/2/12005
SUGGESTED VENDOR: WILTFI COMMUNICATIONS
PHONE NO.: ( 314- 595 -6431
VENDOR ADDRESS: 3180 RIDER TRAIL SOUTH, BRIDGETON, MO 63045
FAX #: 314- 595 -6163
CONTACT PERSON: SCOTT POHLMAN
REQUIRED DELIVERY QR SERVICE DATE:
DELIVERY OR SERVICE LOCATION: 818 W. 7TH ST., LOS ANGEL
1 enr+nt Inir nib
��..,. .. _. Y ....
-500- 1057- 5962- OILWILTEL
`rvro vvvvc 1 -w
25Mbps DEDICATED INTERNET ACCESS WITH 0C3
CIRCUIT ACCESS SHALL BE AT 818 WEST 7TH ST.,
6TH FLOOR, EQUINIX, LOS ANGELES, CA
THE TERM OF AGREEMENT IS TWO YEARS,
CONSISTING OF 24 MONTHLY RECURRING
CHARGES (MRC) 25Mbps x $56.12JMbps x 24 MONTH
ONE TIME NONRECURRING CHARGE - 0C3 CIRCUIT
CROSS CONNECTION FEE (MRC)
$250 X 24 MONTHS
ONE TIME NON RECURRING CHARGE -CROSS
CONNECTION
THE TOTAL MRC FOR THE SERVICES IS $1,403 + 25d
$1,653 PER MONTH
$43,172.00
SCHEDULED DELIVERY DATE:
r* IF ITEMS ARE NOT BUDGETED, EXPLAIN NATURE OF REQUEST BELOW, OR SUBMIT MEMORANDUM.
WHOLESALE PURCHASE OF DEDICATED INTERNET ACCESS IS NEEDED TO DEPLOY CITY'S
INTERNET SERVICES PILOT PROGRAM
I hereby certify that the above items are necessary for the operationof this Department
Department Head or Authorized Person
ISSUED BY
DATE RECEIVED BY DATE PURCHASE ORDER NUMBER
PURCHASING DEPARTMENT
This Wholesale Master Service Agreement is effective this day of May, 2005 ( `Effective
by and between WilTel Commnnieations, LLC, located at One Technology Center, 100 South
C />/Te'� . Cincinnati, 13th Floor, Tulsa, Oklahoma, 74103, a Delaware limited liability company (`WilTel "), and
�connr
COMMUNICATIONS City of Vernon, located at 4305 S. Santa Fe Ave_, Vernon, California 90058, a California corporation
( "Customer ").
1. Services. Subject to the Customer placing orders and WilTel accepting such orders as contemplated herein, Customer agrees to
purchase, and WilTel agrees to provide, the services described in the attached service schedule(s) ("Service Schedule(s)") as indicated in
Appendix A (check as applicable) (the "WilTel Services"), and Third Party Service described in Section 17 (WilTel Services and Third
Party Service, collectively or individually, the "Services"). WilTel Services may consist of any combination of WilTel's voice products
and/or data products (each referred to as "Network Services "), and/or professional services. All Services shall be provided according to
the terms and conditions in this WMSA (defined below) and as specified in an accepted order for Services placed by Customer
contemporaneously herewith, subsequent hereto or in contemplation hereof ("Service Order(s) "). This Wholesale Master Services
Agreement ( "WMSA" or "Agreement ") is comprised of the general terms and conditions contained in Sections 1 through 22 herein (the
"General Terms") together with any appendices, Service Schedules and Service Orders attached or incorporated by reference, and the
foregoing shall be deemed one, integrated agreement and not as separate, severable contracts. The Service Schedules may be attached
hereto, separately executed, or added by amendment. All Services are subject to availability and approval of Customer's credit by WilTel
at the time of each Service Order.
2. WMSA Term. The WMSA (referring not to individual Services, which will each have their own term as described in Section 3
below) shall continue in effect for two (2) years from the Effective Date ("WMSA Term "), and shall then automatically renew for
successive one (1) year periods (`WMSA Renewal Term(s) "), unless either party gives written notice to the other party of non- renewal,
such notice to be delivered at least sixty (60) calendar days before the end of the WMSA Term or the WMSA Renewal Tenn.
Notwithstanding the prior sentence, unless Customer is in Default, any Service being provided at the time of termination of this WMSA
shall continue upon the terms and conditions of this WMSA until the end of the Service Tenn or any applicable Extension Period for
Service as specified in the applicable Service Order or until such Service Order is terminated; provided, however, that Customer may not
order any new Service until Customer and WilTel have entered into a new agreement or mutually agreed in writing to extend this
WMSA.
3. Service Term. The term for each Service as described in a Service Order shall be as indicated on the Service Order ("Service
Term "). At the end of the Service Term for any Service, such Service shall continue on a month -to -month basis ("Extension Period ")
unless either party gives written notice to the other that the Service(s) shall be disconnected, such notice to be delivered at least sixty (60)
calendar days before the end of the Service Term, or if during the Extension Period, then upon at least thirty (30) calendar days' prior
written notice. Notwithstanding the foregoing, if Customer disconnects Service and Customer has ordered its own local access service,
Customer must provide WilTel written notification of Customer's disconnect with the local access service provider in the form of a
disconnection firm order commitment ( "DFOC ") from the local access service provider.
4. Payment Terms and Charges. Customer agrees to pay recurring and non - recurring charges for WilTel Services, as set forth in
applicable Service Order and/or quote ("Quote") referenced in such Service Order and all charges for Third Party Services, if applicable.
WilTel provides and charges for Services in U.S. Dollars, commencing on the date WilTel notifies Customer that the relevant Service is
available for use by Customer. Subject to Section 5 below, all amounts stated on each invoice are due and payable within ten (10)
calendar days of the date of the invoice, except with respect to Services related to voice products, which shall be due and payable
immediately upon receipt of the invoice ("Due Date "). Customer agrees to accept delivery of invoices electronically via the Internet and
agrees to remit payment via Automated Clearinghouse ("ACH") or wire transfer to WilTel Communications, LLC to the account
indicated on Customer's. invoice. In the event Customer fails to make full payment of undisputed amounts by the Due Date, Customer
shall also pay a late fee in the amount of the lesser of (i) one and one -half percent (1 %2 %) per month or (ii) the maximum lawful monthly
rate under applicable state law, of the unpaid balance which amount shall accrue from the Due Date (`Late Fee "). WilTel may make
billing adjustments for WilTel Services for a period of one hundred eighty (180) calendar days after the data a Service is rendered, and for
Third Party Services at any within two (2) months of WilTel's receipt of any invoice from the Third Party Provider (defined in
Section 17 below), or any other time frame allowed by contract, law, or government rule or regulation, whichever is later. WilTel will
invoice Customer for any billing adjustments and Customer agrees to pay such amounts in accordance with this Section.
5. Billing Disputes. (a) Upon disputing any charges, Customer shall: (i) pay all undisputed charges by the Due Date; (u) present by
the Due Date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii)
negotiate in good faith to resolve any bona fide dispute within sixty (60) calendar days from the Due Date. (b) Disputed charges resolved
in favor of WilTel, with a Late Fee, are due and payable within ten (10) calendar days of WilTel's written notice denying the dispute,
which shall be the Due Date for such payment. Disputed changes resolved in favor of Customer will be credited to Customer on the
following month's billing cycle and no Late Fees shall apply.
6. Right to Assurance. If a Customer suffers a material adverse change in its financial condition, and/or if at any time during the Term
or Renewal Term the value of Services ordered by and/or delivered to Customer meets or exceeds Customer's established credit limit(s),
WilTel may: (i) require initial or additional financial information; (ii) request adequate assurance of Customer's performance per
applicable law, (iii) require adjustments to Customer's payment terms and/or (iv) decline to accept or process a Service Order.
7. Credit Default. A "Credit Default" shall occur (i) if Customer fails to make full and timely payment for all amounts due (subject to
Section 5 herein governing billing disputes) and/or (ii) if Customer fails to comply with a request for assurance as provided in Section 6
and such failure remains uncorrected for five (5) calendar days from such date or the Due Date if applicable. In the event of a Credit
Default, WilTel may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer upon written
notice; (ii) cease accepting or processing Service Orders; and/or ( iii) terminate this WMSA upon written notice. If this WMSA is
terminated because of a Credit Default, all Early Termination Charges (defined in Section 19 below) shall apply.
Page 1 of 12 WilTel is registered trademarks of WilTel Communications Group, Inc. WMSA (2005 -1Q)
The WilTel logo is a service mark of WilTel Caanmunications Group, Inc.
' 8. Other Defaults. AUP Violation and Remedies. An "Other Default" shall occur if either party fails to perform or observe any
material term or obligation, excluding payment or right of assurance terms, contained in this WMSA, and any such failure remains
uncorrected for the lesser of thirty (30) calendar days after written notice from the non - defaulting party or such different cure period, if
any, as may be set forth below. In the event of an Other Default by Customer, WilTel may, in addition to its rights available to it at law
or in equity: (i) suspend any or all Services to Customer; (ii) cease accepting or processing Service Orders; and/or (iii) terminate this
WMSA. If this WMSA is terminated because of an Other Default by Customer, all Early Termination Charges shall apply. In the event
of an Other Default by WilTel, Customer's remedies are limited to its proven direct damages and the right to terminate any or all affected
Service Orders, unless this WMSA provides for exclusive remedies in the applicable Service Schedule, in which case Customer's
remedies are exclusively as described therein. If Customer uses the Services for any unlawful purpose or in any unlawful manner, or
causes WilTel to violate any applicable law, such action shall be an Other Default and WilTel shall have the right immediately to suspend
and/or terminate any or all Services hereunder without notice to Customer. Customer affirms that it has reviewed and assented to the
Acceptable Use Policy ("AUP ") posted on WilTel's AUP website at www.wiltel.com/customers /r use s.html, which is incorporated
herein by reference. A violation of the AUP shall be an Other Default. If the violation of the AUP affects WilTel's network, or other
parties on WilTel's network, WilTel shall have the right immediately to suspend and/or terminate any or all Services hereunder and/or the
WMSA without notice to Customer. For any violations of WilTel's AUP that are not affecting either WilTel's network or third parties on.
WilTel's network, Customer shall, upon three (3) business days notice, have the opportunity to cure such violation prior to suspension or
termination. For the purposes of this WMSA, a Credit Default and/or an Other Default may each be referred to individually as a
"Default ".
9. Taxes and USF Charges. (a) If any local, state, national, international, public or quasi - public governmental entity or foreign
government or its political subdivision imposes any taxes (excluding taxes based on WilTel's net income or capital or any property
taxes), fees, surcharges, or other charges or impositions on WilTel as a result of WilTel's sale of Services or Customer's use of Services,
Customer shall pay any such impositions ("Additional Charges ") and indemnify WilTel from any liability or expense associated with the
Additional Charges. (b) In addition, if Additional Charges are assessable to support the federal Universal Service Fund ("USF") or any
similar local, state, national, international, or foreign fund, WilTel may elect to calculate and charge Customer in accordance with
applicable regulations of the government authority having jurisdiction ( "USF Charges "), unless Customer is paying such Additional
Charges directly or is otherwise exempt (as indicated by Customer in Appendix B). To the extent USF Charges apply to Services,
Customer shall also pay WilTel an administrative fee equal to one percent (1 %) of the total WilTel charges for such Services.
10. Indemnity. (a) Customer and WilTel will release, defend, indemnify and hold harmless the other from and against any loss, debt,
liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or
nnliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable liti ton costs and
attorneys' fees ( "Claim "), relating to damage to tangible property or bodily injury, or wrongful death, to the extent such Claim arises out
of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this
WMSA or the provision of Services hereunder. (b) Customer will release, defend, indemnify and hold harmless WilTel and its officers,
directors, employees, contractors and agents from and against any Claim to the extent such Claim (i) is brought by a downstream
customer of Customer or an end user and arises out of an alleged defect in or failure of Service, or (ii) arises out of failure by Customer or
downstream customers of Customer or end users to obtain approval, consent, or authorization relating to the content transmitted over
WilTel's network, including without limitation claims relating to any violation of copyright law, export control laws, or that such
transmissions are libelous, slanderous, an invasion of privacy or illegal.
11. Limitation of Liability. EXCEPT TO THE EXTENT A PARTY IS REQUIRED TO INDEMNIFY THE OTHER PARTY
HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS,
ARISING OUT OF OR IN CONNECTION WITH SUCH PARTY'S PERFORMANCE OF OR FAILURE TO PERFORM ITS
OBLIGATIONS HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF '11-D: POSSIBILITY OF SUCH DAMAGE
OR LOSS.
12. Warranties and Disclaimer of Warranty. WILTEL'S WARRANTY WITH RESPECT TO ANY SERVICE, IF ANY, IS SET
FORTH ON THE APPLICABLE SERVICE SCHEDULE. WILTEL DISCLAIMS ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WILTEL MAKES NO WARRANTY WITH
RESPECT TO ANY THIRD PARTY SERVICES.
13. Compliance with Law. Customer's use of the Services and WilTel's provision of the Services shall be in accordance, and comply,
with all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents and authorizations necessary to conduct its
business and initiate or conduct any transmissions over any facilities covered by this WMSA. WilTel shall obtain all approvals, consents
and authorizations necessary to conduct its business and to provide the Services covered by this WMSA. Customer and WilTel will
release, defend, indemnify and hold harmless the other from and against any Claim arising out of, resulting from or based upon the
indemnifying party's violation of any law, rule or regulation.
14. Force Majeure. Either party may adjust or suspend its performance (other than the obligation to make payment) to the extent
performance is beyond its reasonable control for reasons inchuding, without limitation, acts of God, fire, explosion, atmospheric
conditions such as rain fade, cable cut caused by a third party, governmental action, national emergencies, war, riot, insurrection,
terrorism, vandalism, or labor difficulties such as work stoppages, strikes, or lockouts. If the force majeure event continues for a period
of thirty (30) calendar days, then either party may, without incurring liability, terminate the affected Services or circuits, except for
Customer's liability for any charges of a Third Party Provider.
15. Proprietary Information. Except as required by law or stock exchange rule, the terns and conditions of this WMSA and all
proprietary information exchanged by the parties and all documents referenced herein (including invoices) are confidential and shall not
be disclosed without prior written consent of the other party.
OS
1b. -Interstate Service Representation. WilTel and its Affiliates (defined in Section 21 below) shall not be obligated to make available
intrastate Service, e.g., any Service on a circuit which originates /terminates at points both of which are situated within a single state,
unless WilTel or its Affiliates specifically offer an intrastate Service, or an information Service as defined in 47 U.S.C. Section 153(20)
or unless Customer represents in writing that such Service (other than switched voice services) or circuit shall be used to carry more than
ten percent (10%) interstate or foreign telecommunications traffic. Customer hereby represents that more than ten percent (10%) of the
transmissions on each circuit shall be interstate transmissions or foreign transmissions as those terms are defined in 47 U.S.C. Sections
153(17) and 153(22). If it is determined at any time that such Service or circuit is subject to regulation by a U.S. State regulatory agency,
the Service or circuit may be provided by WilTel or its Affiliates pursuant to applicable state laws, regulations and applicable tariffs, or
WilTel and its Affiliates may discontinue provision of the affected Service or circuit
17. Third Party Services. In conjunction with WilTel Service, WilTel may, upon Customer's request, arrange for Service to be
provided by a third party ("Third Party Service "), such as local access service, interexchange service, or international service. WilTel
shall not be obligated to provision any Third Party Service except in connection with a Service Order for WilTel Service. In the event
Customer requests that WilTel order Third Party Service, WilTel shall provision and coordinate the installation of such Service and
conduct the initial testing of an interconnection between the WilTel Service and Third Party Service. WilTel will not begin billing
Customer for such Third Party Service until related WilTel Service is available. Customer may be required to execute a letter of
authorization ("LOA "), in a form provided by WilTel, authorizing WilTel to deliver such Third Party Service to Customer's location.
When Customer requests international service, WilTel may arrange for the foreign end of the Service or for a portion of the foreign end of
the Service to be provided by a third party carrier licensed in the relevant foreign point. In some cases, WilTel may be unable, and
Customer may be required, to arrange the foreign end of such Service with a foreign carrier. Although this WMSA governs the terms of
WilTel's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required
commitments, termination liability, limitations, and other service- specific terms of the Third Party Service shall be those of the provider
of the Third Party Service ("Third Party Provider "). All charges incurred by WilTel for such Third Party Service, including without
limitation monthly recurring charges, installation charges, non - recurring charges, and applicable termination/cancellation charges of the
Third Party Provider, shall be invoiced to Customer and Customer shall be responsible for payment thereof.
18. Customer Ordered Local Access Service. Customer may order its own local access services from a local access provider who has
established entrance facilities in a WilTel point of presence upon receipt of a LOA or letter of authorization/carrier facility assignment
( "LOA/CFA "). Customer may order its own local access service with a vendor who does not have established entrance facilities within
WilTel's point of presence only with WilTel's written permission. Customer's local access provider shall directly bill Customer for such
local access service. Customer shall ensure that Customer-ordered local access service is available at the same time as the WilTel Service
and shall be obligated to pay for WilTel Service regardless of whether Customer- ordered local access service is available.
19. Early Termination Customer may disconnect any WilTel Service after installation by providing written notification to WilTel
sixty (60) calendar days in advance of the effective date of the disconnection and paying to WilTel an "Early Termination Charge" in an
amount equal to: (i) the recurring charges associated with the Service Tenn less any recurring charges already paid, (ii) any non-
recurring charges not yet paid by Customer, (iii) installation charges discounted or waived at the time Service was installed, (iv) any
termination liability associated with Third Party Services, and (v) the balance of any minimum commitments by Customer required under
this WMSA, if applicable. If Customer terminates any WilTel Service during an Extension Period as provided in Section 3 above,
Customer shall only be responsible for any non- recurring charges not yet paid by Customer together with termination liability associated
with Third Party Services. It is the express intent and understanding of the parties that, this WMSA and all Service Orders hereunder
being one integrated agreement and not separate, severable contracts, Customer's right to early termination of any Service is not a right to
"reject ", on an individual basis, any Service or any Service Order pursuant to federal bankruptcy laws. In the event Customer orders its
own local access service, Customer's written disconnection notice must also include a DFOC from the local access service provider as
described in Section 3.
20. Publicity. The parties contemplate and agree that publication of information surrounding this WMSA may occur through press
releases, articles, interviews, marketing materials, online materials, and/or speeches ("Publicity"). Both parties must approve the content
of any such Publicity prior to its publication, which approval shall not be unreasonably withheld. Routine references to the fact that
Customer is a customer of WilTel including advising others of Customer's presence in a WilTel POP and the general nature of Services
that Customer purchases under this WMSA are not considered Publicity for purposes of this section, and Customer and WilTel each
authorize the other, during the WMSA Term, to make such references unless otherwise specified in a Service Schedule.
21. Miscellaneous. (a) Neither party shall assign or otherwise transfer its rights or obligations under this WMSA without the prior
written consent of the other party, which shall not be unreasonably withheld; provided, however, either party may freely assign this
WMSA, upon notice to the other party, to (i) an "Affiliate" (defined as an entity that controls, is controlled by or is wider common
control), or (ii) in the event of a sale of all or substantially all of its assets, to the purchaser of those assets, or (iii) in the event of a merger,
acquisition or recapitalization of the assigning party, to the surviving entity (the sale of assets, merger, acquisition or recapitalization to be
referred to as a "Change of Control "). For the purposes of this Section, "control" means to have more than a fifty percent (50 %)
ownership interest. In the event of an assignment by Customer to an Affiliate, the acquiring or surviving entity or assignee (as applicable)
must be at least as creditworthy as Customer and no such assignment will release Customer from Customer's obligations herein,
including, but not limited to payment, except to the extent that the acquiring or surviving entity or assignee meets its obligations under
this WMSA. (b) This WMSA shall be governed by the laws of the State of New York without regard to choice of law principles. (e) No
rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this WMSA. (d) The
provisions of this WMSA are only for the benefit of the parties hereto, and no third party may seek to enforce or benefit from these
provisions. (e) If any term or provision of this WMSA shall, to any extent, be determined to be invalid or unenforceable by a court or
body of competent jurisdiction, then (i) both parties shall be relieved of all obligations arising under such provision and this WMSA shall
be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and
(ii) the remainder of this WMSA shall be valid and enforceable. (1) The failure of either party to enforce any provision hereof shall not
constitute the permanent waiver of such provision. (g) No termination of this WMSA shall affect the rights or obligations of either party:
(i) with respect to any payment for Services rendered before termination; or (ii) pursuant to other provisions of this WMSA that, by their
sense and context, are intended to survive termination of this WMSA, including without limitation, indemnification, confidentiality and
limitation of liability. (h) This WMSA, including the General Terms and appurtenant appendices, Service Schedules and Service Orders
(including Quotes referenced therein), any applicable tariff and WilTel's AUP Website, comprise all of the teens and conditions of the
agreement between the parties relating to the Services and constitute the complete and exclusive statement of the understanding between
the parties and supersedes all proposals and prior agreements (oral or written) between the parties relating to Services provided hereunder.
(i) Customer acknowledges that the provisioning of interstate telecommunications services by WilTel to Customer is contingent upon
Customer's submission to WilTel of the representation in the form set forth in Appendix B to this WMSA; either that Customer has
properly registered with the Federal Communications Commission ( "FCC "), pursuant to 47 CFR 64.1195 (and WilTel's confirmation of
the same), or that Customer is not a telecommunications carrier subject to the FCC's registration requirements. (j) Without in any way
diminishing the nature of these General Terms, appurtenant appendices, Service Schedules and Service Orders as one, integrated, non-
severable agreement, in the event of any inconsistency between or among a Service Order or Quote referenced therein, a Service
Schedule, the General Terms, WilTel's AUP website, and/or any applicable tariff, the following order of precedence shall prevail (from
highest priority to lowest): the applicable tariff if any, specific pricing contained in a Service Order or Quote referenced therein, the
provisions contained in the applicable Service Schedule, these General Teens, WilTel's AUP website, the applicable Service Order and
the Quote referenced therein (except pricing). (k) In the event of a Default, the prevailing party shall have the right to recover its
reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of its rights under the WMSA. (1) This
WMSA may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute
one and the same WMSA. (m) Facsimile signatures to this WMSA shall be deemed to be binding upon the parties.
22. Authorized Representatives. The individuals named below who are executing this WMSA on behalf of the parties are duly
authorized to make the representations contained herein.
CUSTOMER:
WILTEL COMMUNICATIONS, LLC:
�r
BY:
Printed Name:
Printed Name:
Title:
Title:
Date:
Date:
WMSA Appendix A
Service Schedules
Schedule 1 ❑ Private Line Service
Schedule 1A ❑ Private Line Service End -to-End
Schedule 2 ❑ ATM Service
Schedule 2A ❑ ATM Service End - to-End
Schedule 3 ❑ Frame Relay Service
Schedule 3A ❑ Frame Relay Service End - to-End
Schedule 4 Dedicated Internet Service
Schedule 4A ❑ Dedicated Internet Service End -to-End
Schedule 5 Direct Network Access
Schedule 6 ❑ Optical Wave Service
Schedule 7 ❑ Switched Voice Service
Schedule 7A ❑ Access — Egress Switched Voice Service
Schedule 7B ❑ Forced AM Load Implementation Switched Voice Service
Schedule 8 ❑ Carrier Voice Services
Schedule 8A ❑ Access — Egress Carrier Voice Service
Schedule 8B ❑ Forced ANI Load Implementation Carrier Voice Service
Schedule 8D ❑ ISP Express Service - Carrier Voice Service
Schedule 9 ❑ EWAN Service
Schedule 9A ❑ EWAN Service End -to-End
Schedule 10 ❑ Coloration Service
Schedule 11 ❑ Multi- Protocol Label Switching Internet Protocol Virtual Private
Network Service
Schedule 11A0 Multi - Protocol Label Switching Internet Protocol Virtual Private
Network Service End -to-End
Schedule 12 ❑ Extended On -Net Service
Schedule 13 ❑ International Private Line Service
Schedule 14 ❑ International Backhaul
Schedule 15 ❑ IP -E Voice Service
Schedule 16 ❑ FocalPoint Service
Schedule 17 ❑ Managed CPE -IP Service
Schedule 18 ❑ Managed Security Service
Schedule 19 ❑ CPE Purchase /Sublease and CPE Services
Schedule P ❑ Professional Services
Schedule W ❑ WGVS Service
T r r1n •S 71 Lei t ',ill,- 1 lV\
Appendix 13
Federal Universal Service Fund/ Attestation of Customer Status Form
WilTel's determination regarding application of the Federal Universal Service Fund ( "USF") surcharge on the Service noted herein will be based
upon the representations and information provided in this attestation form This attestation form also allows WilTel to fulfill its obligation to
verify that its customers have either filed Federal Communications Commission ( "FCC ") Form 499 -A or are not subject to that filing
requirement
Customer is:
❑ End user' - A U.S. based Customer purchasing Service for its own internal use and not for resale.
ISP - A U.S. based information services provider ( "ISP ") or non - common carrier telecommunications provider that is not making its own
USF contributions and is not required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Carrier - A telecommmunications carrier'° (including a reseller) that is using the Service to provide telecommunications service to the
public for a fee, and Customer:
❑ Will resell the Service in the form of telecommunications and will contribute &reedy to the Universal Service Administrator pursuant
to FCC rules.
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ Will use the Service to provide services for which all revenues are from non - domestic (Le., non- U.S.'") end users, and Customer is not
required under FCC rules to file an FCC Form 499 -A with the FCC.
❑ Qualifies for the de minimis exemption under FCC rules ", has met its obligation to file a FCC Form 499A, and is not making direct
contributions to the USF but is making direct contributions to: ❑ LNP ❑ TRS ❑ NANPA (please mark all that apply).
Customer's FCC Filer ID Number (6 digits beginning with "8 ")
❑ International End User or ISP — A nont -U.S based"' end user, information services provider or non - common carrier. To qualify as a non-
U.S. end user, Customer must (1) not be a citizen or permanent resident of the U.S. if an individual and, if a legal entity, not be created under the
laws of the United States, (2) not be qualified to transact business in the U.S. (e.g., through registration with a state secretary of as a foreign
company), (3) have a billing address outside the U.S."°, and (4) not use the service for communications that both originate and terminate within
the U.S.
Customer understands that if it designates that it is acting as a "telecommunications carrier, not contributing" under the de minimis exemption, a
"domestic end user," a "domestic information service provider," or "domestic non - common carrier," WilTel will apply the USF surcharges to the
appropriate revenues from the Service and charge them to Customer along with any applicable administrative surcharge set forth in the written
Agreement.
WilTel is relying upon the information provided by Customer in this representation and any subsequent amendments to determine whether USF
surcharges and administrative surcharges apply. If the information contained herein is determined to be incorrect or if it changes, Customer shall
pay any applicable surcharges for any Service WilTel had provided or that it subsequently provides, in each case together with late- payment
interest and any Customer indemnity obligation or other liability as set forth in the Agreement. If there is no applicable written Agreement
between Customer and WilTel, WilTel's standard Agreement form in effect at the time the Service Order is placed will apply. It at any time,
Customer's representation above is no longer accurate, Customer shall notify WilTel within thirty (30) calendar days by completing and
submitting a new representation to WilTel at the address set forth on page 1 of the Agreement.
A customer obtaining service for use in its own broadcast operations is an end user.
s "The term `telecommunications carrier' means any provider of telecommunications services, except that such term does not include of
telecommunications services." 47 U.S.C. § 153(44).
's "The term `telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively
available directly to the public, regardless of the facilities used." 47 U.S.0 § 153(46). "The term `telecommunications' means the transmission, between or among
points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." 47 U.S.C. §
153(43).
`" "U.S." and "United States" mans the United States of America, its possessions, territories, states, districts, and commonwealths, including. without limitation,
Guam, Puerto Rico, and the U.S. Virgin Islands.
"47 CFR § 54.70S.
"; See footnote iii.
WilTel will waive this requirement if Customer demonstrates that use of a U.S. billing address is solely to facilitate payment by an agent acting on Customer's
behalf. Such waiver must be in writing to be effective.
Dedicated Internet Access Service— Schedule 4
This Dedicated Internet Access Service Schedule ("Schedule") is part of the agreement under which WilTel provides WilTel
Service to Customer and which incorporates this Schedule (the "Agreement ")
1.1 Service Description. Dedicated Internet Access Service is a dedicated high -speed connection to the Internet ("DIA Service ").
Over a single access port connection ("Port"), Customer may select from several connectivity options, speeds, and billing methods
as outlined below. Internet Protocol ("IP ") addresses and/or secondary domain naming system are also available. DIA Service will
meet the Service Level Agreements ( "SLA(s) ") as set forth in Section 2.2.
1.2 Connectivity and Speeds. Customer may choose from connectivity and Port speed options listed in the tables below.
Additional options may be available on an individual case basis ("ICB ").
Access1Port
Speed
PPP
DS-1
Dedicated Internet Connectivity and Speed Options
Ethernet
DS-3
Fast
Ethernet
OC -3
Yes
NA
Yes
NA
Yes
oc-
12
Yes
Gigabit
Ethernet
NA
Frame
NA
NA
NA
NA
NA
ATM
Yes
NA
NA
Yes
NA
SONET
NA
NA
NA
NA
ETHERNET
NA
NA
Yes
Yes
Yes
NA
NA
NA
For the purposes of this Schedule, NA shall mean Not Available.
2.1 Technical Specifications. WilTel has designed DIA Service to conform with the technical standards as specified by the
Internet Engineering Task Force ("IE'1'r" ).
2.2 Service Level Agreement. (a) DIA Service shall perform in accordance with the Port availability, latency and packet loss
SLAs set forth below, which are measured between WilTel IP points of presence in which service level management servers are
deployed ( "Core IP POP(s) ") only. The Outage Credits provided below are Customer's sole and exclusive remedy for any failure,
interruption or degradation of the DIA Service.
i. Port Availability. Port availability is a measiirement of the total time that DIA Service is operative when measured in a one
calendar month (720 hours) period. DIA Service is considered operative when the Customer can exchange IP packets over the
WilTel IP network via the Customer's Port. Port availability for DIA Service shall be 99.999%.
ii. Latency. Latency is measured as the round trip time required for a 100 byte IP packet to travel between WilTel Core IP POPs,
averaged over a one calendar month (720 hours) period. Latency shall not exceed a Core IP POP network average of 45
milliseconds or a maximum of 100 - milliseconds average between any two Core IP POPs.
iii. Packet Loss: Packet loss is measured as the percentage of 100 byte IP packets lost between WilTel Core IP POPs, averaged
over a one calendar month (720 hours) period. Packet loss shall not exceed 0.50 %average between any two Core IP POPs.
3.1 Pricing and Charges. Charges for DIA Service include monthly recurring charges ("MRC(s) ") and non - recurring charges
("NRC(s) "), and Customer agrees to pay in accordance with the Payment and Charges Section of the Agreement. MRCs and
NRCs contained in a Quote(s) but not included in a Service Order are only valid for thirty (30) calendar days. MRCS and NRCs
contained in a Quote that is incorporated into a Service Order are firm for the Service Term reflected on the applicable Service
Order; provided that NRCs associated with any customer requested change, including without limitation a change order,
supplement or tech assist, shall be provided at WilTel's then current standard NRC rate. WilTel shall provide customer with thirty
(30) calendar days notice of any change to its standard NRC rate. The MRCs set forth in the Service Order shall continue to apply
throughout any Extension Period, except that the MRC associated with a Port ordered at a promotional rate, charges associated
with Third Party Services that are Service Term specific or are purchased usler tarifla are subject to change at the end of the
Service Term, or anytime thereafter, upon thirty (30) calendar days written or electronic notice. At the end of a Service Term or at
any time during an Extension Period, Customer may re-term an existing Port by placing a new Service Order specifying a new
Service Term, which shall be provided at the rate set forth on the applicable Service Order.
3.2 Pricing Options. Customer can choose from flat rate and peak usage pricing.
a. Flat Rate Pricing. A flat rate Port is provisioned as a full Port giving Customer the ability to use the full Port bandwidth. The
MRC is fixed each month and does not change due to usage of the Port.
b. Peak Usage Pricing. A peak usage Port is provisioned as a full Port giving Customer the ability to use full Port bandwidth.
Customer may select peak usage pricing with or without a minimum usage commitment.. At the end of the month, WilTel will
reconcile Customer's Port usage to determine if usage charges apply. Usage charges are calculated by multiplying the Port usage
( "Mbps ") by the usage rate. Customer's Port usage is applied to the following month's invoice as an NRC based on the Port usage
for the preceding month. ` Port usage in a given month shall be the higher of either inbound or outbound traffic measured at the
ninety -fifth percentile (95 %) (remove top 5% of total traffic readings) based on traffic sampled every five (5) minutes and
aggregated in fifteen (15) minute increments, as determined by WilTel.
i. Peak Usage Pricing With Minimum Port Usage Commitment. If Customer selects peak usage pricing with a minimum
Port usage commitment on Customer Service Order, then Customer's usage charges will be based on all Port usage during the
month in excess of Customer's minimum Port usage commitment and calculated as described above. In addition to any
applicable usage charge, Customer will be charged an MRC that remains fixed during the Service Term equal to the minimum
commitment level multiplied by the usage rate, and no fixed Port charge is applied If customer's Port usage is less than the
minimum Port usage commitment, Customer's MRC will not change.
Dedicated Internet Access Service—Schedule 4
'ii. Peak Usage Pricing Without Minimum Port Usage Commitment. If Customer selects peak usage pricing with no
minimum Port usage commitment on Customer's Service Order, then Customer's usage charges will be based on all Port
usage during the month and will be calculated as described above. In addition to any applicable usage charge, Customer will
be charged an MRC Port charge that remains fixed during the Service Term.
4. Implementation Intervals. WilTel's standard service implementation interval objective is set forth in the Table below.
WilTel shall make reasonable efforts to provide DIA Services within its standard service implementation interval. The start date
of such interval begins on the acceptance date as provided to Customer in WilTel's order confirmation document. Failure of
WilTel to deliver by such date shall not constitute a default under the Agreement and WilTel shall not be liable to pay to Customer
any penalties or damages for WilTel's failure to meet such standard service implementation intervals.
Service Type
Standard Interval POP to POP
DS -1
10 business days
DS -3, OC -3, OC -12, Ethernet, Fast and Gigabit
Ethernet
15 business days
5.1 Outage Credits. (a) Customer acknowledges the possibility of an unscheduled, continuous and/or interrupted period of time
during which DIA Service does not conform to the SLA as set forth in Section 2.2 above ("Outage "). An Outage %hall begin upon
the earlier of WilTel's actual knowledge of the Outage or WilTel's receipt of notice from the Customer of the Outage, provided
that Customer has released all or part of the DIA Service for testing if requested by WilTel. In the event of an Outage, Customer
shall be entitled to a credit ( "Outage Credit") upon WilTel receipt of Customer's written request for such Outage Credit. Such
written request must be received by WilTel within thirty (30) calendar days of the Outage and the Outage Credit shall be applied to
Customer's next monthly invoice. If WilTel does not receive Customer's written notice within such thirty (30) calendar day
period, Customer shall be deemed to waive its right to the Outage Credit.
i. For Port availability, the amount of Outage Credit shall be as set forth is the table below and is credited as a percentage of the
MRC for the affected Port. Outages greater than 26 seconds are aggregated monthly and the aggregate outage credit is subject to a
maximum monthly credit of 50% of the applicable MRC for the affected Port.
Length of outage
Amount of Credit (% of MRC)
0 to 26 seconds
No Credit
27 seconds to 59 minutes
5 %
1 hour to2 hours 59 minutes
10%
3 hours to 4 hours 59 minutes
20%
5 hours to 7 hours 59 minutes
30%
8 hours to 11 hours 59 minutes
40%
12 hours or more
50%
ii. For latency, the amount of Outage Credit shall be a one -time credit of 5% of the MRC for the affected Port during any
calendar month that the affected Port fails to conform to the latency SLA. WilTel will report latency each month.
in For packet loss, amount of Outage Credit shall be an amount equal to a one - time credit of 5 %oof the MRC for the affected Port
during any calendar month that the affected Port fails to conform to the packet loss SLA. WilTel will report packet loss each
month
(b). In no event shall WilTel's total liability for all Outages exceed a total of one (1) month's MRC for the affected Port during any
calendar month.
5.2 Exceptions. Customer shall not receive an Outage Credit if the Outage is: (i) caused by Customer or others authorized by
Customer to use the DIA Services under the Agreement including failure to comply with all installation requirements including
environmental requirements for the applicable equipment; (ii) due to the failure of power, facilities, equipment, systems or
connections not provided by WilTel; (iii) caused by the failure of Third Party Service to WilTel's network; (iv) the result of
maintenance activities as set forth in Section 6.1 and Section 6.2 of this Schedule; or (v) due to a force majeure event as defined in
the Agreement.
6.1 Planned Network Maintenance Period ("PNMP(s)"). WilTel shall avoid performing PNMP between 0600 to 2200 local
time, Monday through Friday. WilTel shall provide Customer with electronic mail, telephone, facsimile, or written notice of a
PNMP (i) not less than three (3) business days prior to performing a PNMP that in Wiffel's reasonable opinion, has a substantial
likelihood of affecting Customer's traffic for up to fifty (50) milliseconds, or (u) not less than ten (10) business days prior to
performing a PNMP that in WilTel's gable opinion, bas a substantial likelihood of affecting Customer's traffic for more than
fifty (50) milliseconds. If the PNMP is canceled or delayed, WilTel shall promptly notify Customer and shall comply with the
provisions of this Section 6.1 to reschedule the PNMP.
6.2 Emergency Network Maintenance Period ("ENMP(s)"). It maybe necessary for WilTel to issue notification of an ENMP.
ENMPs allow WilTel to perform mandated maintenance with a shorter Customer notification interval than PNMPs.
7. Warranty. Subject to the warranty provisions set forth in the Agreement, WilTel warrants that DIA Service shall conform to
SLAs as set forth in Section 2.2 above. WilTel shall use commercially reasonable efforts under the circumstances to remedy any
delays, interruptions, omissions, mistakes, accidents or errors in the DIA Service and restore such DIA Service to comply with the
terms hereof. THE OUTAGE CREDIT(S) AS SET FORTH IN SECTION 5.1 SHALL BE THE SOLE AND EXCLUSIVE
Dedicated Internet Access Service— Schedule 4
REMEDY(IES) OF CUSTOMER IN THE EVENT OF ANY FAILURE, INTERRUPTION OR DEGRADATION OF DIA
SERVICE OR FOR BREACH OF THIS WARRANTY.
Direct Network Access Service—Schedule 5
This Direct Network Access Service Schedule ( "Schedule ") is part of the agreement under which WilTel provides WilTel Service to
Customer and which incorporates this Service Schedule (the "Agreement").
1. Service Description. Direct Network Access ( "DNA") is a WilTel® provided web -based portal that will provide Customer with a
partitioned view into the portion of WilTel's network used by Customer through a graphical user interface ( "GUI"). Customer may
access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing and
data Service Orders for supported WilTel Services. OneStop is a fimction of DNA, allowing Customer the ability to place and manage
voice Service Orders as well as conduct expansive search activities. For purposes of this Schedule, references to WilTel Services shall be
deemed to be the Network Portion of WilTel Services where applicable.
2. Service Request. In order to receive access to DNA, Customer must have ordered WilTel Services. Customer must also complete
the "Request for Customer Administrator Access" form, attached hereto as Exhibit 1, prior to receiving access to DNA.
3. Availability of Serve. WilTel reserves the right to change the basic functionality and information available to Customer through
DNA including adding or removing DNA features. WilTel will make reasonable efforts to provide thirty (30) days notice to Customer of
any material change to DNA. WilTel will provide use of the basic functions of DNA to Customer at no charge. Upon mutual agreement
between Customer and WilTel, enhanced functionality or additional features to the base system may be provided to Customer for a fee.
4. License. WilTel grants to Customer a limited, non - exclusive, non - transferable license (without the right to sublicense) to use DNA
for the purposes described herein. This license shall continue for so long as Customer is purchasing WilTel Service(s) under the
Agreement or until terminated by WilTel. WilTel is granting Customer no other rights or interest in DNA. This license is granted solely
to access and monitor information and utilize basic functionality within DNA including but not limited to pricing, trouble tickets, billing
and Service Orders for supported WilTel Services as provided in accordance with the Agreement and this Schedule. Customer shall not
allow any third party access to DNA including access or use by an end user of the WilTel Service or any external dissemination or
duplication by Customer. Customer shall not sell, transfer, publish, disclose, display or otherwise make available DNA or information
obtained through DNA to any third party except for providing end users with utilization information specific to such end user. Customer
shall not copy, de- compile, reverse - engineer or otherwise attempt to derive the source code from DNA. Customer acknowledges that
DNA and all rights therein, including any patent, copyright, trademark, trade secret, any other intellectual property right, and related
source code are the exclusive property of WilTel and WilTel retains all such right, title and interest in DNA. This license grant shall not
entitle Customer to any service upgrades, maintenance, support, customization, modification, or enhancement to DNA. Customer
acknowledges and irrevocably authorizes WilTel's rights in, and all ownership and use ot; data and Customer information compiled by
WilTel, including without limitation data and information arising out of use of DNA. Such acknowledgement and authorization is not
intended to limit or expand either party's rights or obligations with respect to Customer Proprietary Network Information (as then defined
by FCC rules, regulations and/or orders). Customer acknowledges that the information compiled is a representation of the WilTel
Service(s) and WilTel network performance and shall not be used to determine failure by WilTel to meet any applicable SLAs, if any.
WilTel reserves the right to terminate or limit Customer's use and access to DNA or replace DNA with another application, in WilTel's
sole discretion. Customer's inability to use DNA will not relieve Customer of its obligations to pay for Service nor will it give rise to any
WilTel obligation to pay Customer any Outage Credits.
5. Termination. Use of DNA for purposes other than those specifically set forth in this Schedule shall entitle WilTel to suspend or
terminate Customer's access to DNA. Should Customer misuse DNA, WilTel shall have the right to immediately terminate this Schedule
or suspend Customer's use of DNA until Customer can show that such misuse has been identified and corrected to WilTel's satisfaction.
Should Customer terminate associated WilTel Service(s) or fail to pay for monthly Service in accordance with Section 4 of the
Agreement, WilTel shall have the right to immediately terminate this Schedule or suspend Customer's use of DNA.
6. Use of DNA. Customer agrees not to enter into DNA any data that is profane, threatening, indecent, libelous, defamatory or
unlawful, or that violates or infringes any trademark, copyright or similar rights of others. Customer agrees not to knowingly enter any
data that is false or misleading. WilTel reserves the right to deny access to any user or group of uses to DNA, at its sole discretion, at
any time, and for any reason "or no reason. Customer agrees to indemnify, defend and hold harmless WilTel from any and all claims
arising front or related to Customer's use of access to DNA.
7. Planned Maintenance Activity. From time to time WilTel may perform maintenance on its operating systems, which may cause
DNA to be unavailable. Whenever possible, WilTel will attempt to perform planned network maintenance during non - business hours. In
no event will any maintenance c r other interruption of DNA give rise to any liability on behalf of WilTel.
S. Customer Responsibilities.
a. Customer shall appoint a "Customer DNA Administrator" ( "Administrator ") who will be responsible for setting up the security and
administration of Customer's use of DNA. The Administrator shall also be required to complete the "Request for Customer
Administrator Access" form, which will be submitted to WilTel. Customer shall assign each of its users a separate ID for entry into DNA
and Customer will control the level of security for each user (i.e. to which accounts/functions/features of DNA each user will have
access).
b. Customer shall have sole responsibility for the security, administration and actions of its users of DNA.
c. Customer shall use DNA only for the purposes as described in this Schedule.
d. Customer shall have the sole responsibility for adequate protection and backup of its data used in connection with DNA and
Customer shall not have any claim against WilTel for any reason relating to Customer's use o1 or inability to use DNA including without
limitation claims for lost data, inaccurate data, work delays, or lost profits.
e. WilTel shall not be liable for any lack of action due to failure to receive information from Customer via DNA.
9. No Warranty. It is understood by Customer that DNA is provided "as-is" and WilTel makes no representations or warranties
regarding its use. WILTEL HEREBY DISCLAIMS ALL WARRANTIES INCLUDING ANY IMPLIED REPRESENTATIONS
OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, or that the use of DNA or any
• • /01nn A tall 1.1
Direct Network Access Service — Schedule 5
information relating thereto or contained therein will not infringe any copyright or trademark of any third person. WilTel makes no
warranty as to the accuracy of any information contained in DNA.
10. Limitation of Liability. IN THE EVENT OF ANY INTERRUPTION OR FAILURE OF DNA OR ANY DAMAGE OR LOSS
ASSOCIATED WITH CUSTOMER'S USE OF DNA, WHATSOEVER, WILTEL SHALL NOT BE LIABLE FOR ANY DIRECT,
INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY
LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF WILTEL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE OR LOSS.
Direct Network Access Service — Schedule 5
Exhibit 1
Request for Customer Administrator Access
New
Modify
Delete ❑
Date:
First Name: A L
Company: C 'tY
Phone: 3i3- s83
Email Address:
Physical Address:
Please Complete All Fields
0- c Vr44
SSW X 3/ 4
Last Name: iq o ute-
Title: h: 614- 0 pkr; cs Mavt4 e.v-
Current Network Login ID:
QihOck•r •VV✓vfan. Cot •VS
436 S` c?.J o, Ems, sn ut..
Primary Networking Contact: ANC ,Cav
Initial Number of DNA Users:
WilTel Service Purchased: Data 14
Voice ❑ Other
Special Instructions: Authority to use the DNA is granted in accordance with the WilTel
DNA Service Schedule executed by WilTel and Customer. In the event WilTel and
Customer have not executed such a Schedule and Customer is allowed access to DNA, the
provision of DNA shall be subject to the terms and conditions in such DNA Service
Schedule. Customer understands that misuse of the DNA may result in the termination of its
rights to use DNA. Customer will assign each of its users their own DNA passwords and
will ensure that each user does not reveal their password to any other person.
Page 1 of 3
Acceptable Use Policy
WilTel Communications, LLC (the Company) has established this Acceptable
Use Policy (AUP) to advise the users of its network and services of the
acceptable and prohibited uses of its network and services. The Company's
network and services must be used only for lawful purposes and for
purposes consistent with this AUP, which is a non - exclusive list of the
actions prohibited by the Company .
1. Users are prohibited from violating any system or network security
measure, including, but not limited to engaging in:
• Unauthorized access or use of the Company's or a third party's
network, data, or information; including any attempt to probe, scan
or test the vulnerability of a system or network, or to breach
security measures without express authorization of the owner of the
secured network;
• Unauthorized monitoring of the Company's or third party's data,
systems or network traffic;
• Forging of any header or any part of the header information in any
e -mail or newsgroup posting, or taking any action in order to obtain
services to which such user is not otherwise entitled.
2. Users are prohibited from interfering with a third party's use of the
Company's network or service, including without limitation, mailbombing,
flooding and deliberate attempts to overload a system.
3. Users are prohibited from sending unsolicited e-mail messages
( "spamming "), including, but not limited to:
• Posting the same, or similar, messages to one or more Usenet or
other newsgroups, forums, e-mail mailing lists or other similar
groups or lists;
• Posting any Usenet or other newsgroup, forum, e-mail mailing list or
other similar group, or list articles which are off -topic or otherwise
violate the rules of the charter or other owner - published FAQ or
description of the group or list;
• Sending unsolicited e-mail, including commercial advertisements and
informational announcements to Internet users, or any unsolicited e-
mail that could reasonably be expected to provoke complaints;
• Using e-mail to engage in harassment, whether through language,
frequency or messages. Continuing to send someone e-mail after
being asked to stop is considered harassment;
• Sending e-mail with falsified or obscured header or information
designed to hinder the identification of the location of what is
advertised;
• Collecting replies to either (i) unsolicited e-mail messages or (ii)
messages that were either sent through another provider which
violate these rules or those of the other provider.
4. Users who send bulk e-mail to "opt -in" list must have a method of
confirming or verifying subscriptions and be able to show evidence of
subscriptions for users who complain about unsolicited e -mail. The
Company's receipt of complaints from Internet users related to e-mails
received due to users use of `opt in" list shall be a violation of this AUP.
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Page 2 of 3
5. Users are prohibited from creating, storing or disseminating any material
(i)"in violation of applicable law or regulation, (ii) protected by trademark,
trade secret, copyright or other intellectual property rights without proper
authorization, (iii) that is libelous, slanderous, defamatory, abusive, an
invasion of privacy or otherwise illegal, (iv) containing fraudulent offers for
goods or services or any promotional materials containing false, deceptive
or misleading statements, claims or representations.
6. Users are prohibited from falsifying user information provided to the
Company or to other users in connection with use of a Company service.
7. Users are prohibited from engaging in any of the foregoing activities: (i)
by using the service of another provider, but channeling such activities
through a Company account, remailer, or otherwise through a Company
service, (ii) using a Company account as a maildrop for responses, (iii)
otherwise using the services of another provider for the purpose of
facilitating the forgoing activities if such use of another party's service could
reasonably be expected to adversely affect a Company service.
8. The Company considers the above practices to constitute abuse of its
service. Engaging in one or more of these practices may result in immediate
termination of a user's access to the Company's services. Users shall be
charged an administrative fee of $500 for each incident in violation of this
AUP. A violation of this AUP by someone having only indirect access to the
Company network through a customer, or other user, will be considered a
violation by the customer, or other user, whether or not with the knowledge
or consent of the customer or other user. The Company receives
complaints directly from Internet users, through Internet organizations and
through other parties.
9. The Company shall not be required to determine the validity of
complaints received before taking action under this AUP. The Company
reserves the right in its sole discretion to determine whether duplicative or
mass e-mail messages are "unsolicited." A complaint from the recipient,
whether received directly or through an anti - spamming organization, shall
be presumed to be evidence that the message was unsolicited. The
Company has no obligation to forward the complaint to the user or to
identify the complaining parties.
10. The user is responsible for the use of all services utilized via its
connection to the Company network, including any support services
provided via its connection to the Company network. Support services
include hosting Web sites, electronic mailboxes, telephony gateways, IRC
servers, advertising, transmitting, or otherwise making available any
software, program, product or service. Providing support services that
enable viloation of this AUP or the AUP of any other Internet services
provider is a violation of this AUP. Conduct that directly or indirectly
encourages, permits or relies on activities in violation of this AUP, is also a
violation of the AUP. Examples include failure to implement technical or
administrative measures to prevent mass unsolicited e-mail, or providing
spamming support services such as e-mail drop boxes, sales of spamware,
list washing, and the hosting of "spam - vertised" Web sites.
11. Nothing contained in this policy shall be construed to limit the
Company's actions or remedies in any way with respect to any of the
foregoing activities, and the Company reserves the right to take any and all
additional actions it may deem appropriate with respect to such activities,
including without limitation taking action to recover the costs and expenses
of identifying offenders and removing them from the Company service, and
levying cancellation charges to cover the Company's costs. The Company
will investigate violations of policy and will cooperate with law enforcement
officials for suspected criminal violations. In addition, the Company reserves
at all times all rights and remedies available to it with respect to such
activities at law or in equity.
The Company reserves the right to modify this policy at anytime, effective
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Page 3 of 3
3 ^
upon posting of a modified policy on WiITeI' Web site at:
http://www.wiltel.comicustomers/content/acceptable_use.htm.
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