Loading...
Resolution No. 95181 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO 9518 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A BUSINESS MARKETS MASTER SERVICE AGREEMENT AND SERVICE ORDER FORM BY AND BETWEEN THE CITY OF VERNON AND LEVEL 3 COMMUNICATIONS, LLC, FORMERLY 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 August 3, 2005, the City Council of Vernon { adopted Resolution No. 8817 approving a Wholesale Master Service Agreement and Service Order with Wiltel Communications, LLC ("Wiltel") to provide dedicated internet access and direct network access services to Vernon; and WHEREAS, Level 3 Communications has acquired Wiltel and Vernon desires to enter into a new agreement with Level 3 Communications, LLC ("Level 3") to provide the upstream internet access service; and WHEREAS, the City Council 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 1 to enter into an agreement with Level 3. 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 3 CITY OF VERNON AS FOLLOWS: 4 SECTION 1: The City Council of the City of Vernon hereby 5 finds and determines that the recitals contained hereinabove are true 6 and correct. 7 SECTION 2: The City Council of the City of Vernon hereby 8 approves the Business Markets Master Service Agreement and Service 9 Order with Level 3, in substantially the same form as the copy which 10 is attached hereto as Exhibit A and incorporated by reference. 11 SECTION 3: The City Council of the City of Vernon hereby 12 authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, 13 and on behalf of, the City of Vernon and the City Clerk is hereby 14 authorized to attest thereto. 15 SECTION 4: The City Council of the City of Vernon hereby 16 authorizes the City Administrator, or his designee, to make whatever 17 nonsubstantive, administrative and/or text changes, upon advice of 18 counsel, to the Agreement. 19 SECTION 5: The City Council of the City of Vernon hereby 20 authorizes the City Administrator, or his designee, to execute any and 21 all documents as shall be required consistent with the terms of the 22 Agreement. 23 SECTION 6: The City Council of the City of Vernon hereby 24 directs the City Clerk, or her designee, to send one executed 25 Agreement to Level 3. 26 27 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 7: The 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 7th day of January, 2008. ATTEST: MANUELA GIRO , C'ty Clerk Name: Leoni.s C. Malburg Title: Mayor - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9518, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, January 7, 2008, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. (SEAL) ANUELA GIRON, City Clerk - 4 - EXHIBIT A Level (3)® C 0 M M U N r C A T r 0 N S Business Markets Master Service Agreement This Business Markets Master Service Agreement ("Agreement") is made as of the date listed upon the Order (defined below) by and between LEVEL 3 COMMUNICATIONS, LLC ("Level 3") and the entity listed on the Order ("Customer"). This Agreement provides the general terms and conditions applicable to Customer's purchase of communications services ("Service(s)") from Level 3. 1. General. Customer must submit requests for Service in a manner and on a form designated by Level 3 ("Order"). Each Order will state the term for which Service is requested (the "Service Term") and the pricing for the Service. Service will continue on a month to month basis upon expiration of the Service Term at month to month rates. Customer will pay Level 3's then current charges for any moves, adds or changes agreed to by Level 3 to any Order or Service. 2. Installation, Acceptance and Access. Level 3 will attempt to provide Service by any requested installation date, but will not be liable for any delays in Service delivery. The Service is delivered on the date the Service becomes operational ("Service Start Date"). Unless Customer notifies Level 3 in writing within 3 business days of the Service Start Date that Service is not operational, then the Service will be deemed accepted by Customer, the Service Term will commence and Customer will begin paying for the Service as of the Service Start Date. If access to non -Level 3. facilities (including inside wiring) is required for delivery of Service or the installation, maintenance or removal of Level 3 equipment used to deliver Service, Customer will, at its expense, secure rights for Level 3 to access and the use of such facilities, power and HVAC as needed for Service delivery. Title to equipment (including software) provided by Level 3 will remain with Level 3. Customer will not create or permit to be created any encumbrances on Level 3's equipment. Customer will not access or attempt maintenance on Level 3 equipment ' and will pay for any equipment damage caused by Customer. 3. Deposits. Level 3 may require a security deposit at any time as a condition to continuation of Service. Unused Customer deposits will be refunded following expiration or termination of this Agreement. 4. Invoices and Disputes. Invoices are delivered monthly and payment is due 30 days after the invoice date (the "Due Date"). Fixed charges are billed in advance and usage -based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law, whichever is less. Customer is responsible for all Service charges, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount by the Due Date and submit written notice of the disputed amount (detailing the nature of the " dispute, the Services and invoice(s) disputed). Disputes must be submitted in writing within 60 days of the date of the invoice or the right to dispute is waived. If a dispute is resolved against Customer, Customer will pay the disputed amounts plus interest from the initial Due Date. Customer will be liable to Level 3 for all costs and expenses incurred in collecting amounts due to Level 3, including legal fees. Level 3 may implement electronic systems for invoice delivery, submission and resolution of disputes and/or requiring electronic invoice payment; Customer will use such systems (and other similar electronic systems) if implemented by Level 3. 5. Taxes and Fees. Except for taxes based on Level 3's net income, Customer will be responsible for all taxes and fees arising in any jurisdiction, including but in no way limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges (including regulatory and 911 surcharges) imposed on or incident to the provision, sale or use of Service (whether imposed on Level 3 or any affiliate of Level 3). Such charges may be shown on invoices as cost recovery fees. Charges for Service are exclusive of taxes. Customer may present Level 3 a valid exemption certificate and Level 3 will give effect thereto prospectively. 6. Use of Service. Except as provided herein, Customer may use Services for any lawful purpose consistent with Level 3's then current acceptable use and privacy policies available at www.leve]3.com, provided such use does not interfere with any .. services being provided on or impair the privacy of communications on the Level 3 network. 7. Maintenance and Network Modifications. Maintenance by Level 3 (which may be Service impacting) is included in the fees for Service, unless such maintenance is necessitated by acts or omissions attributable to Customer, for which maintenance Customer will pay Level 3. In addition to Service maintenance, Level 3 may make certain network modifications and thus '? changes to the Customer's Service which changes do not materially and adversely affect Service performance. In the event of such a network modifications and changes, Customer understands that the same may limit Customer's ability to retain existing codes and/or necessitate other changes or modifications to Customer's Services. Customer will reasonably cooperate with Level 3 to facilitate such modifications. 8. Termination. If (i) Customer fails to make any payment when due and such failure continues for 10 business days after written notice from Level 3, (ii) a party has a right of termination under an applicable tariff or (Ili) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non -defaulting party may: (a) terminate this Agreement and/or any Order, in whole or in part, and/or (b) subject to the limitations of this Agreement and applicable tariffs, pursue any remedies it may have at law or in equity. Level 3 may: x) Page 1 Level 3 Communications Version 1.01 121 Champion Way 0 2006 Level 3 Communications, LLC Canonsburg, PA 15317 Proprietary and Confidential terminate the delivery of Service without liability if legally required or if continuing to provide the Service is no longer technically" or economically practicable; y) add or delete service offerings upon 30 days prior written notice to Customer; or z) revise rates in this Agreement upon 30 days prior written notice to Customer; provided however, that Customer may, unless such revision is the result of a rate increase required by law or regulation, terminate this Agreement prior to the effective date of the rate change by providing written notice to Level 3. 9. Termination Liability. If prior to expiration of the Service Term, Customer terminates Service for convenience or Level 3 terminates Service for cause, Customer will pay Level 3 a termination charge (which Customer acknowledges is a reasonable approximation of Level 3's damages and is not a penalty) as follows: (a) all unpaid amounts for Service provided through the date of termination; plus (b) all previously waived charges for the Services(s); plus (c) 100% of the remaining monthly recurring' charges (if any) for months 1-12 of the Service Term; plus (d) 50% of the remaining monthly recurring charges for month 13 through the end of the Service Term; plus (e) if not recovered by the foregoing, any termination liability payable to third parties resulting from the termination. 10. Indemnification and Limitations on Liability. Customer will indemnify, defend and hold Level 3, its affiliates and each of its respective owners, directors, officers, employees and agents, harmless from and against any and all claims, suits, expenses, losses, demands, actions, causes of action, judgments, fees and costs, of any kind or nature whatsoever (Claims), arising from or related to any use, attempt to use or resale of Service or otherwise arising in connection with any Service or this Agreement. , IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY ORDER. LEVEL 3 WILL HAVE NO LIABILITY FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY IN CONNECTION WITH OR FOR RESPONDING TO EMERGENCY 911 OR OTHER EMERGENCY REFERRAL CALLS. 11. Force Majeure. Neither party will be liable, nor will any remedy provided by this Agreement be available, for any failure of Service due to causes beyond such party's reasonable control ("force majeure"). Customer will not be obligated to pay Level 3 for Service not delivered as the result of force majeure. 12. Service Levels. The "Service Level" commitments applicable to the Services are found in Level 3's Service Schedules for each Service. Service Levels do not apply during periods of force majeure or Service maintenance. If Level 3 does not achieve a Service Level, a credit will be issued to Customer upon Customer's request. Level 3's maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Customer must contact Level 3 Customer Service (contact information can be found at www.level3.com) or deliver a written request (with sufficient detail necessary to identify the affected Service) within 60 days after the end of the month in which the credit was earned. In no event will the total credits issued to Customer per month exceed the non -recurring and monthly recurring charges for the affected Service for that month. Customer's sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels (if any) applicable to the affected Service. 13. Assignment. Customer may not assign its rights or obligations under this Agreement or any Order without the prior written consent of Level 3. This Agreement will apply to any permitted transferees or assignees. Customer may not resell any Services under this Agreement without the express written consent of Level 3. Nothing in this Agreement, express or implied, is intended. to or will confer upon any third party any right, benefit or remedy under or by reason of this Agreement. 14. Warranties. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, RESPECTING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 15. Confidentiality. The terms of this Agreement and all knowledge and information of a confidential nature acquired in performing this Agreement are confidential. Each party and its agents will keep such information confidential and not disclose such information to third parties, other than to its affiliates. 16. Miscellaneous. Services may be provided by Level 3 or a Level 3 affiliate. This Agreement is binding on the parties' and their permitted successors and assigns, and together with any Orders, Service Schedules and applicable tariff(s) constitutes the entire agreement between the parties. This Agreement does not create any agency, joint venture, or partnership between Level 3 and Customer, each of which are independent business entities. No prior agreements, understandings, statements, proposals or representations, either oral or written, respecting the subject matter hereof apply. This Agreement can be.modified only in a writing signed by the parties. Level 3 may provide notices under this Agreement to any address identified in an Order. Notices to Level 3 must be made the address below. If any provision of this Agreement is held to be illegal or unenforceable, this Agreement's unaffected provisions will remain in effect. If either party fails to enforce any right or remedy under this Agreement, such failure will not waive the right or remedy. This Agreement will be governed by and construed in accordance with the laws of Colorado, without regard to its conflict of laws provisions. [Remainder of Page Intentionally Blank] Page 2 Level 3 Communications Version 1.01 121 Champion Way 0 2006 Level 3 Communications, LLC Canonsburg, PA 15317 Proprietary and Confidential SERVICE SCHEDULE LEVEL 3® DEDICATED INTERNET ACCESS SERVICE (Version Issue Date: September 19, 2007) 1. Applicability. This Service Schedule is applicable only where Customer orders Level 3® Dedicated Internet Access (DIA) Service. Level 3 Dedicated Internet Access Service may be designated as DIA Service in customer orders, order acceptance, service delivery, billing (and related) documents. 2. Definitions. Any capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement. (A) "Back -Up Port" shall mean any Level 3 DIA Service port other than the Primary Port that is configured to send/receive traffic only in the event that the applicable Primary Port becomes unavailable to send or receive traffic. The Back -Up Port must be identified as such in the Customer Order and provisioned on a Level 3 router or switch (within the same Level 3 Facility) that is separate from the Primary Port. (B) "Committed Data Rate" shall mean the minimum data rate committed by Customer and set forth in the Customer Order (expressed in Megabits per second (Mbps)). (C) 1P Fiber Extension" shall mean a dark fiber local access "solution for Level 3 DIA Service between the Level 3 Gateway and the Customer Premises (or such other point of interconnection) in which unprotected IP service is delivered using Level 3 Facilities and Customer facilities, as mutually agreed between the parties. Level 3 shall, in its sole discretion, determine whether Customer may utilize an IP Fiber Extension under this Service Schedule, or must obtain dark fiber pursuant to a separate dark fiber Service .Schedule to be executed by the parties. (D) "Off -Net Send Traffic" shall mean Send Traffic that terminates to any location that is not on the Level 3 network. (E) "On -Net Intracity Send Traffic" shall mean On -Net Send Traffic that does not transit Level 3's long haul transmission facilities. (F) "On -Net Send Traffic" shall mean Send Traffic that terminates to a location that is on the Level 3 network. (G) "Primary Port" shall mean any Level 3 DIA Service port that is configured to send/receive Customer's Level 3 DIA Service traffic during normal network operations,- as identified in the applicable Customer Order. (H) "Receive Traffic" shall mean traffic from any origination point that is received by Customer from the Level 3 network. (1) "Send Traffic" shall mean traffic from any origination point that is sent by Customer onto the Level 3 network. 3. Service Description. Level 3 DIA Service is an IP transit service (including dedicated IP access port(s)) providing access to the Level 3 IP network and the global Internet. Level 3 DIA Service is available through Serial/POS and Ethernet interfaces. Standard Level 3 DIA Service is configured with a single Primary Port and no Backup Port. 4. Managed Router Service (Option). Managed Router Service is an option of the Dedicated Internet Access Service (DIA) available at various connection speeds and pricing options (all as stated in the Customer Order Form). (A) Managed Router Service is a comprehensive solution in which the Internet access Customer Premises Equipment ("CPE"), (whether provided by the Customer or by Level 3) is managed by Level 3. In the event that the customer chooses to provide its own Internet access CPE, the customer hereby does assign full operational management responsibility, including, but not limited to, full management of the logical configuration for such equipment, solely to Level 3. (B) Upon the expiration or termination of the Service Term, Customer shall promptly return any Level 3 provided CPE to Level 3 in good working order (ordinary wear and tear excepted). In the event Customer fails to do so within thirty (30) days, Level 3 will bill Customer and Customer agrees to pay Level 3, as the case may be, $5,000.00 or the commercial value of the equipment, whichever is higher, representing the agreed -upon value of the equipment. (C) Where Services are provided outside of the United States, Level 3 may pass title to certain Facilities to Customer (as specified in the Customer Order, or as otherwise agreed to in writing between the parties). In the event title is passed to Customer, Customer shall: i) be responsible for all required authorizations and licenses required respecting such Facilities; and ii) (a) re -convey title to and ship, at Customer's expense, such Facilities back to Level 3 at the conclusion of the Service Term in good working order, ordinary wear and tear excepted (and pay Level 3 the costs of repair or replacement if not so' returned), or (b) destroy such Facilities, certify the same to Level 3 and pay Level 3 such Facilities' fair market value. Customer will be required to pay Duty and VAT for all CPE and Facilities provided with Internet Advantage International Service. 5. Charges. Charges for DIA Service are charged utilizing one of the following options (please note that the CDR Option is not available in all Service locations). The manner of billing selected will be set forth in each Customer Order. (A) Fixed Rate Option Customer will be billed based on a Fixed Rate. Fixed Rate charges for Level 3 DIA Service consist of two (2) components: (a) a non -recurring installation charge per port; and (b) a monthly recurring port charge. (B) CDR Option Committed Data Rate charges for Level 3 DIA Service consist of three (3) components: (a) a non -recurring installation charge per port; (b) a monthly recurring charge based ' on the Committed Data Rate; and (3) monthly usage charges to the extent usage in a particular month exceeds the Committed Data Rate. The Committed Data Rate shall apply to a particular Level 3 DIA Service port as stated in the applicable Customer Order(s) © 2007 Level 3 Communications, Inc. All rights reserved. - 1 - Level 3 Proprietary & Confidential for such ports. If the Committed Data Rate applies to a particular Level 3 DIA Service port, Customer's per port usage of Level 3 DIA Service (both Send Traffic and Receive Traffic) across such port will be sampled every five (5) minutes for the previous five (5) minute period. At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic samples for such port shall be discarded. The higher of the resulting ninety-fifth (95th) percentile value for Send Traffic or Receive Traffic for such port will be compared to the Committed Data Rate applicable to the port. If the ninety-fifth (95th) percentile of either Send Traffic.or Receive Traffic is higher than the applicable Committed Data Rate, Customer will, in addition to being billed for the Committed Data Rate, be billed at this ninety-fifth (95th) percentile level for any usage in excess of such Committed Data Rate at the contracted -for price per Megabit. 6. IP Addresses and Domain Names. In the event that Level 3 assigns to Customer an IP address as part of the provision of Service, such IP address shall (upon Level 3's request and to the extent permitted by law) revert to Level 3 after termination of the applicable Customer Order for any reason whatsoever, and Customer shall cease using such address. At any time after such termination, Level 3 may re -assign such address to another user. In the event that Level 3 obtains for Customer a domain name (which may be required in some European jurisdictions), Customer shall be the sole owner of such domain name. Customer shall be solely responsible for: (A) paying any fees (including renewal fees) relating thereto; (B) complying with any legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority; (C) modifying such domain name in the event Customer changes service providers; and (D) all third party claims (including claims for intellectual property infringement) relating thereto, and Customer shall indemnify and hold Level 3 harmless from all such claims and expenses (including legal fees and court costs) relatedr thereto. 7. IP Fiber Extensions. (A) Pursuant to a Customer Order submitted by Customer and accepted by Level 3, the parties may agree that Level 3 will provide Customer with an IP Fiber Extension as part of the local access solution for any Level 3 DIA Service provided hereunder. Level 3 will invoice Customer, and Customer agrees to pay Level 3, the charges associated with any such IP Fiber Extension as set forth in the applicable Customer Order. Unavailability or degradation of Level 3 DIA Service caused by or attributable to IP Fiber Extensions shall be considered Excused Outages. The foregoing notwithstanding, Level 3 will use commercially reasonable efforts to respond to any such unavailability or degradation (on Level 3 Facilities) associated with any IP Fiber Extension within four (4) hours after becoming aware of the same and shall use commercially reasonable efforts to repair traffic -affecting discontinuity within twelve (12) hours after Level 3's representatives arrive at the problem site and have the ability to begin uninterrupted repair activities. (B) Level 3 shall have the right to supervise and control in a reasonable manner all activities concerning any IP Fiber Extension provided hereunder, including, without limitation, all Level 3 manholes/hand holes. Any work required by Customer respecting any IP Fiber Extension provided hereunder, including without limitation, (i) splicing the Customer fibers, and (ii) interconnection between the Customer network and the Level 3 network, shall be undertaken only by or (with Level 3's consent) under the supervision of Level 3. (C) Prior to delivery of any IP Fiber Extension, Level 3 shall test the dark fiber contained in such IP Fiber Extension in accordance with the then -current version of Level 3's interconnection policies and guidelines. 8. Service Levels. (A) Installation Service Level. Level 3 will exercise commercially reasonable efforts to install any Level 3 DIA Service on or before the Customer Commit Date (if any) specified for the particular Level 3 DIA Service. This Installation Service Level shall not apply to Customer Orders that contain incorrect information supplied by Customer or Customer Orders that are altered at Customer's request after submission and acceptance by Level 3. In the event Level 3 does not meet this Installation Service Level for a particular Level 3 DIA Service for reasons other than an Excused Outage, Customer will be entitled to a service credit for each day of delay equal to the charges for one (1) day of the allocated port MRC for the affected Level 3 DIA Service port(s), in each case up to a monthly maximum credit of ten (10) days. (B) Availability Service Level. The Availability Service Level for Level 3 DIA Service is 99.98% for Standard Level 3 DIA Service. Standard Level 3 DIA Service is considered unavailable if the Primary Port is unable to send or receive traffic. If credits are due under this Availability Service Level for a particular unavailability event, Service credits will not be payable under Section 8(C) or 8(D) for the same unavailability event. In the event that Level 3 DIA Service becomes unavailable for reasons other than an Excused Outage, Customer will be entitled to a service credit off of the port MRC for the affected Level 3 DIA Service port. Service credits are based on the cumulative unavailability of the affected Level 3 DIA Service port in a given calendar month as set forth in the following table: For Standard Level 3 DIA Service: la tlIn691l � ; ` ,, . lns_sect 00:00:01 — 00:10:00 ry ice Lev a No Credit 00:10:01— 00:45:00 5% 00:45:01— 04:00:00 10% 04:00:01 — 08:00:00 20% 08:00:01—12:00:00 30% 12:00:01—16:00:00 40% 16:00:01 — 24:00:00 '50% 24:00.01 or greater 100% (C) Delay Service Level. The Delay Service Level for Level 3 DIA Service is as set forth in the following table: © 2007 Level 3 Communications, Inc. All rights reserved. - 2 - Level 3 Proprietary & Confidential '`Irvice' Le e Intra- U.S. 25 ms Intra-Europe 15 ms London to New York, NY 40 ms The Delay Service Level is measured as an average one-way delay over a calendar month for traffic on the Level 3 network between Gateways. Delay measurements may be obtained from the Level 3 website at www.level3.com. In the event of a delay in excess of the Service Levels set forth above for reasons other than an Excused Outage, Customer will be entitled to receive a service credit off of the port MRC for the affected Level 3 DIA Service port (if applicable). Service credits, in each case, are as set forth in the following table: / Amcun I y Serve eredt / 0.1 — 5 ms 10% 5.1 —10 ms 20% 10.1 —15 ms 30% 15.1 — 20 ms 40% 20.1 — 25 ms 50% 25.1 ms or greater 100% (D) Packet Delivery Service Level. The Packet Delivery Service Level for Level 3 DIA Service is 99.95% for On -Net traffic between Gateways. Packet Delivery is the average number of Internet Protocol ("IP") packets of information that transit the Level 3 network and are delivered by Level 3 to the intended On -Net destination in a calendar month. Packet Delivery measurements may be obtained from the Level 3 web site at www.level3.com. In the event Level 3 does not meet the Packet Delivery Service Level for reasons other than an Excused Outage or as a result of any Off - Net Local Loop (whether provisioned by Customer or Level 3), Customer will be entitled to receive a service credit off of the port for the affected Level 3 DIA Service port (if applicable). Service credits, in each case, are as set forth in the following table: 9. Chronic Outage. Customer may elect to terminate an affected Level 3 DIA Service prior to the end of the Service Term without termination liability if, for reasons other than an Excused Outage, the Standard Level 3 DIA Service is unavailable (as defined in Section 8(B) above) for three (3) or more separate occasions of more than twelve (12) hours each OR for more than forty two (42) hours in the aggregate in any calendar month. Customer may only terminate such Level 3 DIA Service that is unavailable as described above, and must exercise its right to terminate the affected Level 3 DIA Service under this Section, in writing, within thirty (30) days after the event giving rise to a right of termination hereunder, which termination will be effective as set forth by Customer in such notice of termination. Except for any credits that have accrued pursuant to Section 8, this Section 8 sets forth the sole remedy of Customer for chronic outages or interruptions of any Level 3 DIA Service. 10. Resale Restriction. Notwithstanding anything to the contrary in the Agreement, Customer is prohibited from reselling any Level 3 DIA Service or any ports provided pursuant to this Service Schedule to a third party without the express written consent of Level 3. [Remainder of Page Intentionally Left Blank] © 2007 Level 3 Communications, Inc. All rights reserved. -3- Level 3 Proprietary & Confidential n 'b a tz W CD w A y M r r p 0 CD m cn : r Cr O N O. � N? N N m 3 G 7 S N O w N -i a'O t0/I �• U yin�w(n�o.m�m�am mQ 2$ m w v a �_ m Q o n ID N 0 7 N C �. y n. o O N c C (D r y. o �, o aID o1=21 ° m V- 0 2. 0 m S T a N m ogo p1 ��w$ r 0' > Viso m =� IDy °^-Ci'm m oa.d r c°(ov any < y (D O > N D1 N a 7 N p' O y V1 W N O p<f O ID n N 7 y N (D N N Er a y O N �. fD '< �%� N M. a .01. 'O 0 0< Q 3i c1. p O ry o j a p D1 ICE DI (D S a m° H 2.m m° a= N a o°ro'ogom�>3�� mo. m (D d n rJ m v m m 'm v°T, fD m 3 m m m p- m o��0. o v^ HHHO fD ? I N 7>> n ID' 'p y j N �i n 0 7? N x m m O° m m o a - C' •o N o c. i o o !�' g n on o.o O.o _ovfD,0ai � omam�3�5.6 0 O m (D d `i V m 01 c N O N y d C y o m o M- o o m< m m c R a m ' o y 3 0 °,m ° 77Inc� v»N' a 3 0 5c gmD. °_.yo N m m m N y m m ID m 7 0 (D O O y O M (0 fO z O y 0 O. 7 _ (D (D n 'D ID j '� C O N C N 3 CD C, 'y0 y N n: s d m T �� a m •�v_o �m n� o� �v : y m mfDomom3 o�'�o"'°�oD7i c h m ° a Z D O N° C y N n y (D y (o m m d D a o (� S c a m M. m o m n CO M CD ID�n m F m y omy No•<032 z•Q 5•y ID CD 0�c, 3 m <` m g n g CDErj N N (D D 2 VI f° O_ N N 3 m m o o•� m N D1 3•aQE33,c a<�(�mom pCD 3 C- Dm w m 0 c Cn n» P m 3CD NvCL 0) » o m 0 __.� ° (D ' R y. N S < O O O" Ol y V m (D y n O. CD (n n m v@ a o c M c m C Df N M. 7 O N y i �• v C S .0.. v n S A Ncc CD N m 0 O r v N o O C O In m .�.. _ z m N (R EF y N 7 p» lV N N n w N_ N KN .• N CD c m? m 3 7 m 3° 3 'D I o. m 5' o, CDCDp- Q soR. >• ° A 3 o m a o v m D m m• 10 =, D) O N a F O. y N CD CD =< ID v c' 0� o a w y m m O m p1 5 5, 3 d o• a m �< o 3 O O N S N O N a.ommam5M.mm'mND`Dc( om a i m= o. y v 0 va o r ° M- o 3 K v; m< m ° m ;° m, c m m(Dn�v wD�fD ���m(D }' 0 (D y z• C'N C (: N `Z O VI N 2D N pj r n ac a3 Sim cl < m�m'o m ooi N O i N N a N D a (° (D f0 fll N N fD O N (D O S - N N 3 �^ 9Dt S CD m m ,2 ° fn 3 m N c Q' a CD° m CD o c 7 d g m C o ry N ry fD N (A O CJ b w w A W � 8 o b9 0 69 69 69 0 0 o n A p O %D c C O o Cl O O O o O R p d D w I k C � A N OQ 0 0 0 0 0 F z p0 0 0 0 O O O O p Hi Y! OIM 0 w w � �O Vt 't• .�T L=7 < eyD p A CD C CD �D w a W C�arD 0 W Oo O C) 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 January 16, 2008 Level 3 Communications Attn: Donis Simmons 121 Champion Way Canonsburg, PA 15317 Re: Fiber Optic Internet Access Dear Mr. Simmons: Transmitted herewith is a fully executed agreement as referenced above, approved by City Council on January 7, 2008, through Resolution No. 9518. If you have any questions regarding this matter, please call Mr. Ali Nour, at (323) 583-8811 ext. 175. 4 Very truly yours, gellly�Gi o City Clerk NG:dr c: Donal O'Callaghan Dolores Jaunzemis Resolution No. 9518 Agreement File No. 08-002 Exc(usivefy Industfid O ►j =•�y o 0 o u 4) ° a 0 w a M V, w :� •� C � o 0 0 o p u W a vv v� r» v� srs � �wI a W� O a � U o - Ri d z h N L 0 i0+ as �U W d 0 � A Poi d a � W � M z In j3� % � M M z o•� c F. o O 0 0 o O O O p p V -y O O O O O In W 0 y 69 69 (A 69 yq M d bq a u •uyl q 0 U- O z y� O o o O o 0 08 O p O p sv c» s9 6s sis Vaw M z N M d 0 O .-. Y O O C r N N r 7 C C Z N :- .- 0 a °.� >m. O E to m Z a) a�i r czc O c' a� T w rn n °, d 'cQ o E o m m o "O m a' o E-0 o? n c2i$c o�m m�mN a•m Nod. cOi c�. 'Z p N w V C 0 U 7 N 0 •- N aL. a) -aa�aZ ¢m o CL m 0'> E c w c a� u m :: N o E O J= 0 0 0 C .0 O E° J m y a a c m N 0 U) IX)w x 7 d N '00 N N a .O 0 0 0 0 80 .o M-" mo°-O d - c ° N $o °mai c . '°am ccoo gy @° d m m to r� c -0 0 o> 7 a w >: Eaa� �' c0v JUNac c� E ._ 00 .L-• C O V N L (n Y L o m$ a a0 3 '> to 9 m U 3 m 3 N a N C y c Q aci a 0 c° m o E c o m c c0i N o t coi '.3 :: Z a d °. oa oa mY �2 .CL a' N� a t o o� c L _o m y d N m m s c v N c E m Z o " E 0 0 N L C] U = N m o L 3.2 0. E o U 3> a o 0° t O O O N y N v J O '� L C N n .oVo ° y.3> `�° E 0 `O E a m >> N L 0 a n m y N y U) Z d -o ° 0 O o. o mg° c o c> 0) 2 °° o v (n T 0 O N° w O C d 0oi y N d a C 0 O M y Ev°�voruU 70490-oX cw yCDm Lm Noo 0. > J2aOcT]i T m 7 EN —mLa '0 m E xmmo0E U o oNm� €NU7 c f0 n y o m° ° o d c) O o w L N 0 0 0 C N N rL0-• a U U N o 3 C N L E 0 Y o .2 2 E m m� J N U (wD ca 3 N (n (a) ( C 'NO N O. '0O -' •ri a m L o U a_ Q m m d c y V N a L U_ U7l O UO _ E 'tJ U N Z m.o�cUo`N.2po yL C 7 C U o 0 —°T_ 0 0 6 0 O N m CJ 'o M .ra. 2] a O O.'00` C C 2] d EO H cc J y a L N N O U N ID 0T !� O N — N O ..L. �O N m a `m m c m v •O 'o 'o o �. z a o 0 ,N w a c y E aa) O o 0 5 3 0 c12 y E u m a u ro rn c E c o= rn N C N 2 `� D) 0 0 0 E `1 0cc to I C O ID 0 0 U N C C O w H> 0 C O E C ° N°> O O 0 -00 O ow m m Of O w 7 N O N a m ur ai •3 ` O j C E 0 7 0 0 �p C 0 C 05 Q S 2 U L" 42 L a 3 'a7Q O C Q N.a C 4=. 0 U 0 m C x w c o U� o m m° a p c c c d r o t 'o E c•) �° ° 0 2 E o€ ID a) a°i z m E Y> —N° E v a o co P: o 0 m '0 E O N 0 C V O L C •0 0 0 U J 7 0 ly0 7 :0 0 U 6 O. 0 .0. - d -0 0 CO O N W N Y> m C v` N m— E Y. m° !Ern m a m E N C N (0 m U N C T 0 d O- N 0 .L-• N -O N 7 0 '0 E Y m �'_c.(D ca o 'c y 0 0 +' c j m 0 N c a s 3 o V .2 > ..L. T e 0' 0 0 N U L0 U C `oy.2dmycTEa)io 00 m� T.E 0.0 n E Aca E o o b 3 £ Tcn E d L m Q rna 7 m L m Z L 0 m ,Q o 3" Q N `-' m c c U E 3 N E 0 N N :y d p y C m E 0 C N M 0 0 N 0 z m> °o, ( M a n z- 'C m l° O U Z> a CO Q a m� c � fa C A J �/ �"' N m N m o L N 0 .0 m m m o E m o c m c E o Z a E 8 0 0> .0 O C O m aj o a H aoi U m a -`n a, n o is E c w > 0 N U) M N E co m a J� n. �3 M <2 t 0 I'- 8 u- d 0> L L m m N .N 3>> N CO w 4-4 O N bO cd a O U M 4 N z O (24 w C.0 O EA H U 0 E-� w E-� E-+ 0 w w Level(8)0 C 0 M M U N I C A T 1 0 N 5 Business Markets Master Service Agreement This Business Markets Master Service Agreement ("Agreement") is made as of the date listed upon the Order (defined below) by and between LEVEL 3 COMMUNICATIONS, LLC ("Level 3") and the entity listed on the Order ("Customer"). This Agreement provides the general terms and conditions applicable to Customer's purchase of communications services ("Service(s)") from Level 3. 1. General. Customer must submit requests for Service in a manner and on a form designated by Level 3 ("Order"). Each Order will state the term for which Service is requested (the "Service Term") and the pricing for the Service. Service will continue on a month to month basis upon expiration of the Service Term at month to month rates. Customer will pay Level 3's then current charges for any moves, adds or changes agreed to by Level 3 to any Order or Service. 2. Installation, Acceptance and Access. Level 3 will attempt to provide Service by any requested installation date, but will not be liable for any delays in Service delivery. The Service is delivered on the date the Service becomes operational ("Service Start Date"). Unless Customer notifies Level 3 in writing within 3 business days of the Service Start Date that Service is not operational, then the Service will be deemed accepted by Customer, the Service Term will commence and Customer will begin paying for the Service as of the Service Start Date. If access to non -Level 3 facilities (including inside wiring) is required for delivery of Service or the installation, maintenance or removal of Level 3 equipment used to deliver Service, Customer will, at its expense, secure rights for Level 3 to access and the use of such facilities, power and HVAC as needed for Service delivery. Title to equipment (including software) provided by Level 3 will remain with Level 3. Customer will not create or permit to be created any encumbrances on Level 3's equipment. Customer will not access or attempt maintenance on Level 3 equipment and will pay for any equipment damage caused by Customer. 3. Deposits. Level 3 may require a security deposit at any time as a condition to continuation of Service. Unused Customer deposits will be refunded following expiration or termination of this Agreement. 4. Invoices and Disputes. Invoices are delivered monthly and payment is due 30 days after the invoice date (the "Due Date"). Fixed charges are billed in advance and usage -based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law, whichever is less. Customer is responsible for all Service charges, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount by the Due Date and submit written notice of the disputed amount (detailing the nature of the dispute, the Services and invoice(s) disputed). Disputes must be submitted in writing within 60 days of the date of the invoice or the right to dispute is waived. If a dispute is resolved against Customer, Customer will pay the disputed amounts plus interest from the initial Due Date. Customer will be liable to Level 3 for all costs and expenses incurred in collecting amounts due to Level 3, including legal fees. Level 3 may implement electronic systems for invoice delivery, submission and resolution of disputes and/or requiring electronic invoice payment; Customer will use such systems (and other similar electronic systems) if implemented by Level 3. 5. Taxes and Fees. Except for taxes based on Level 3's net income, Customer will, be responsible for all taxes and fees arising in any jurisdiction, including but in no way limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges (including regulatory and 911 surcharges) imposed on or incident to the provision, sale or use of Service (whether imposed on Level 3 or any affiliate of Level 3). Such charges may be shown on invoices as cost recovery fees. Charges for Service are exclusive of taxes. Customer may present Level 3 a valid exemption certificate and Level 3 will give effect thereto prospectively. 6. Use of Service. Except as provided herein, Customer may use Services for any lawful purpose consistent with Level 3's then current acceptable use and privacy policies available at www.leve]3.com, provided such use does not interfere with any services being provided on or impair the privacy of communications on the Level 3 network. 7. Maintenanceand Network Modifications. Maintenance by Level 3 (which may be Service impacting) is included in the fees for Service, unless such maintenance is necessitated by acts or omissions attributable to Customer, for which maintenance Customer will pay Level 3. In addition to Service maintenance, Level 3 may make certain network modifications and thus changes to the Customer's Service which changes do not materially and adversely_ affect Service performance. ,In the event of such a network modifications and changes, Customer understands that the same may limit Customer's ability to retain existing codes and/or necessitate other changes or modifications to Customer's Services. Customer will reasonably cooperate with Level 3 to facilitate such modifications. 8. Termination. If (i) Customer fails to make any payment when due and such failure continues for 10 business days after written notice from Level 3, (ii) a party has a right of termination under an applicable tariff or (iii) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non -defaulting party may: (a) terminate this Agreement and/or any Order, in whole or in part, and/or (b) subject to the limitations of this Agreement and applicable tariffs, pursue any remedies it may have at law or in equity. Level 3 may: x) Page 1 Level 3 Communications 121 Champion Way © 2006 Level 3 Communications, LLC Canonsburg, PA 15317 Version 1.01 Proprietary and Confidential terminate the delivery of Service without liability if legally required or if continuing to provide the Service is no longer technically or economically practicable; y) add or delete service offerings upon 30 days prior written notice to Customer; or z) revise rates in this Agreement upon 30 days prior written notice to Customer; provided however, that Customer may, unless such revision is the result of a rate increase required by law or regulation, terminate this Agreement prior to the effective date of the rate change by providing written notice to Level 3. 9. Termination Liability. If prior to expiration of the Service Term, Customer terminates Service for convenience or Level 3 terminates Service for cause, Customer will pay Level 3 a termination charge (which Customer acknowledges is a reasonable approximation of Level 3's damages and is not a penalty) as follows: (a) all unpaid amounts for Service provided through the date of termination; plus (b) all previously waived charges for the Services(s); plus (c) 100% of the remaining monthly recurring charges (if any) for months 1-12 of the Service Term; plus (d) 50% of the remaining monthly recurring charges for month 13 through the end of the Service Term; plus (e) if not recovered by the foregoing, any termination liability payable to third parties resulting from the termination. 10. Indemnification and Limitations on Liability. Customer will indemnify, defend and hold Level 3, its affiliates and each of its respective owners, directors, officers, employees and agents, harmless from and against any and all claims, suits, expenses, losses, demands, actions, causes of action, judgments, fees and costs, of any kind or nature whatsoever (Claims), arising from or related to any use, attempt to use or resale of Service or otherwise arising in connection with any Service or this Agreement. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY ORDER. LEVEL 3 WILL HAVE NO LIABILITY FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY IN CONNECTION WITH OR FOR RESPONDING TO EMERGENCY 911 OR OTHER EMERGENCY REFERRAL CALLS. 11. Force Majeure. Neither party will be liable, nor will any remedy provided by this Agreement be available, for any failure of Service due to causes beyond such party's reasonable control ("force majeure"). Customer will not be obligated to pay Level 3 for Service not delivered as the result of force majeure. 12. Service Levels. The "Service Level" commitments applicable to the Services are found in Level 3's Service Schedules for each Service. Service Levels do not apply during periods of force majeure or Service maintenance. If Level 3 does not achieve a Service Level, a credit will be issued to Customer upon Customer's request. Level 3's maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Customer must contact Level 3 Customer Service (contact information can be found at www.level3.com) or deliver a written request (with sufficient detail necessary to identify the affected Service) within 60 days after the end of the month in which the credit was earned. In no event will the total credits issued to Customer per month exceed the non -recurring and monthly recurring charges for the affected Service for that month. Customer's sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels (if any) applicable to the affected Service. 13. Assignment. Customer may not assign its rights or obligations under this Agreement or any Order without the prior written consent of Level 3. This Agreement will apply to any permitted transferees or assignees. Customer may not resell any Services under this Agreement without the express written consent of Level 3. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party any right, benefit or remedy under or by reason of this Agreement. 14. Warranties. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, RESPECTING THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 15. Confidentiality. The terms of this Agreement and all knowledge and information of a confidential nature acquired in performing this Agreement are confidential. Each party and its agents will keep such information confidential and not disclose such information to third parties, other than to its affiliates. 16. Miscellaneous. Services may be provided by Level 3 or a Level 3 affiliate. This Agreement is binding on the parties' and their permitted successors and assigns, and together with any Orders, Service Schedules and applicable tariff(s) constitutes the entire agreement between the parties. This Agreement does not create any agency, joint venture, or partnership between Level 3 and Customer, each of which are independent business entities. No prior agreements, understandings, statements, proposals or representations, either oral or written, respecting the subject matter hereof apply. This Agreement can be modified only in a writing signed by the parties. Level 3 may provide notices under this Agreement to any address identified in an Order. Notices to Level 3 must be made the address below. If any provision of this Agreement is held to be illegal or unenforceable, this Agreement's unaffected provisions will remain in effect. If either party fails to enforce any right or remedy under this Agreement, such failure will not waive the right or remedy. This Agreement will be governed by and construed in accordance with the laws of Colorado, without regard to its conflict of laws provisions. [Remainder of Page Intentionally Blank] Page 2 Level Communications 121 Champion Way © 2006 Level 3 Communications, LLC Canonsburg, PA 15317 Version 1.01 Proprietary and Confidential SERVICE SCHEDULE LEVEL 3® DEDICATED INTERNET ACCESS SERVICE (Version Issue Date: September 19, 2007) 1. Applicability. This Service Schedule is applicable only where Customer orders Level 3® Dedicated Internet Access (DIA) Service. Level 3 Dedicated Internet Access Service may be designated as DIA Service in customer orders, order acceptance, service delivery, billing (and related) documents. 2. Definitions. Any capitalized terms used herein and not otherwise defined shall have the meaning set forth in the Agreement. (A) "Back -Up Port" shall mean any Level 3 DIA Service port other than the Primary Port that is configured to send/receive traffic only in the event that the applicable Primary Port becomes unavailable to send or receive traffic. The Back -Up Port must be identified as such in the Customer Order and provisioned on a Level 3 router or switch (within the same Level 3 Facility) that is separate from the Primary Port. (B) "Committed Data Rate" shall mean the minimum data rate committed by Customer and set forth in the Customer Order (expressed in Megabits per second (Mbps)). (C) "IP Fiber Extension" shall mean a dark fiber local access solution for Level 3 DIA Service between the Level 3 Gateway and the Customer Premises (or such other point of interconnection) in which unprotected IP service is delivered using Level 3 Facilities and Customer facilities, as mutually agreed between the parties. Level 3 shall, in its sole discretion, determine whether Customer may utilize an IP Fiber Extension under this Service Schedule, or must obtain dark fiber pursuant to a separate dark fiber Service Schedule to be executed by the parties. (D) "Off -Net Send Traffic" shall mean Send Traffic that terminates to any location that is not on the Level 3 network. (E) "On -Net Intracity Send Traffic" shall mean On -Net Send Traffic that does not transit Level 3's Tong haul transmission facilities. (F) "On -Net Send Traffic" shall mean Send Traffic that terminates to a location that is on the Level 3 network. (G) "Primary Port" shall mean any Level 3 DIA Service port that is configured to send/receive Customer's Level 3 DIA Service traffic during normal network operations, as identified in the applicable Customer Order. (H) "Receive Traffic" shall mean traffic from any origination point that is received by Customer from the Level 3 network. (1) "Send Traffic" shall mean traffic from any origination point that is sent by Customer onto the Level 3 network. 3. Service Description. Level 3 DIA Service is an IP transit service (including dedicated IP access port(s)) providing access to the Level 3 IP network and the global Internet. Level 3 DIA Service is available through Serial/POS and Ethernet interfaces. Standard Level 3 DIA Service is configured with a single Primary Port and no Backup Port. 4. Managed Router Service (Option). Managed Router Service is an option of the Dedicated Internet Access Service (DIA) available at various connection speeds and pricing options (all as stated in the Customer Order Form). (A) Managed Router Service is a comprehensive solution in which the Internet access Customer Premises Equipment ("CPE"), (whether provided by the Customer or by Level 3) is managed by Level 3. In the event that the customer chooses to provide its own Internet access CPE, the customer hereby does assign full operational management responsibility, including, but not limited to, full management of the logical configuration for such equipment, solely to Level 3. (B) Upon the expiration or termination of the Service Term, Customer shall promptly return any Level 3 provided CPE to Level 3 in good working order (ordinary wear and tear excepted). In the event Customer fails to do so within thirty (30) days, Level 3 will bill Customer and Customer agrees to pay Level 3, as the case may be, $5,000.00 or the commercial value of the equipment, whichever is higher, representing the agreed -upon value of the equipment. (C) Where Services are provided outside of the United States, Level 3 may pass title to certain Facilities to Customer (as specified in the Customer Order, or as otherwise agreed to in writing between the parties). In the event title is passed to Customer, Customer shall: i) be responsible for all required authorizations and licenses required respecting such Facilities; and ii) (a) re -convey title to and ship, at Customer's expense, such Facilities back to Level 3 at the conclusion of the Service Term in good working order, ordinary wear and tear excepted (and pay Level 3 the costs of repair or replacement if not so returned), or (b) destroy such Facilities, certify the same to Level 3 and pay Level 3 such Facilities' fair market value. Customer will be required to pay Duty and VAT for all CPE and Facilities provided with Internet Advantage International Service. 5. Charges. Charges for DIA Service are charged utilizing one of the following options (please note that the CDR Option is not available in all Service locations). The manner of billing selected will be set forth in each Customer Order. (A) Fixed Rate Option Customer will be billed based on a Fixed Rate. Fixed Rate charges for Level 3 DIA Service consist of two (2) components: (a) a non -recurring installation charge per port; and (b) a monthly recurring port charge. (B) CDR Option Committed Data Rate charges for Level 3 DIA Service consist of three (3) components: (a) a non -recurring installation charge per port; (b) a monthly recurring charge based on the Committed Data Rate; and (3) monthly usage charges to the extent usage in a particular month exceeds the Committed Data Rate. The Committed Data Rate shall apply to a particular Level 3 DIA Service port as stated in the applicable Customer Order(s) 0 2007 Level 3 Communications, Inc. All rights reserved. - 1 - Level 3 Proprietary & Confidential for such ports. If the Committed Data Rate applies to a particular Level 3 DIA Service port, Customer's per port usage of Level 3 DIA Service (both Send Traffic and Receive Traffic) across such port will be sampled every five (5) minutes for the previous five (5) minute period. At the end of the month, the top five percent (5%) of Send Traffic and Receive Traffic samples for such port shall be discarded. The higher of the resulting ninety-fifth (951h) percentile value for Send Traffic or Receive Traffic for such port will be compared to the Committed Data Rate applicable to the port. If the ninety-fifth (95th) percentile of either Send Traffic or Receive Traffic is higher than the applicable Committed Data Rate, Customer will, in addition to being billed for the Committed Data Rate, be billed at this ninety-fifth (95th) percentile level for any usage in excess of such Committed Data Rate at the contracted -for price per Megabit. 6. IP Addresses and Domain Names. In the event that Level 3 assigns to Customer an IP address as part of the provision of Service, such IP address shall (upon Level 3's request and to the extent permitted by Jaw) revert to Level 3 after termination of the applicable Customer Order for any reason whatsoever, and Customer shall cease using such address. At any time after such termination, Level 3 may re -assign such address to another user. In the event that Level 3 obtains for Customer a domain name (which may be required in some European jurisdictions), Customer shall be the sole owner of such domain name. Customer shall be solely responsible for: (A) paying any fees (including renewal fees) relating thereto; (B) complying with any legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority; (C) modifying such domain name in the event Customer changes service providers; and (D) all third party claims (including claims for intellectual property infringement) relating thereto, and Customer shall indemnify and hold Level 3 harmless from all such claims and expenses (including legal fees and court costs) related thereto. 7. IP Fiber Extensions. (A) Pursuant to a Customer Order submitted by Customer and accepted by Level 3, the parties may agree that Level 3 will provide Customer with an IP Fiber Extension as part of the local access solution for any Level 3 DIA Service provided hereunder. Level 3 will invoice Customer, and Customer agrees to pay Level 3, the charges associated with any such IP Fiber Extension as set forth in the applicable Customer Order. Unavailability or degradation of Level 3 DIA Service caused by or attributable to IP Fiber Extensions shall be considered Excused Outages. The foregoing notwithstanding, Level 3 will use commercially reasonable efforts to respond to any such unavailability or degradation (on Level 3 Facilities) associated with any IP Fiber Extension within four (4) hours after becoming aware of the same and shall use commercially reasonable efforts to repair traffic -affecting discontinuity within twelve (12) hours after Level 3's representatives arrive at the problem site and have the ability to begin uninterrupted repair activities. (B) Level 3 shall have the right to supervise and control in a reasonable manner all activities concerning any IP Fiber Extension provided hereunder, including, without limitation, all Level 3 manholes/handholes. Any work required by Customer respecting any IP Fiber Extension provided hereunder, including without limitation, (i) splicing the Customer fibers, and (ii) interconnection between the Customer network and the Level 3 network, shall be undertaken only by or (with Level 3's consent) under the supervision of Level 3. (C) Prior to delivery of any IP Fiber Extension, Level 3 shall test the dark fiber contained in such IP Fiber Extension in accordance with the then -current version of Level 3's interconnection policies and guidelines. 8. Service Levels. (A) Installation Service Level. Level 3 will exercise commercially reasonable efforts to install any Level 3 DIA Service on or before the Customer Commit Date (if any) specified for the particular Level 3 DIA Service. This Installation Service Level shall not apply to Customer Orders that contain incorrect information supplied by Customer or Customer Orders that are altered at Customer's request after submission and acceptance by Level 3. In the event Level 3 does not meet this Installation Service Level for a particular Level 3 DIA Service for reasons other than an Excused Outage, Customer will be entitled to a service credit for each day of delay equal to the charges for one (1) day of the allocated port MRC for the affected Level 3 DIA Service port(s), in each case up to a monthly maximum credit of ten (10) days. (B) Availability Service Level. The Availability Service Level for Level 3 DIA Service is 99.98% for Standard Level 3 DIA Service. Standard Level 3 DIA Service is considered unavailable if the Primary Port is unable to send or receive traffic. If credits are due under this Availability Service Level for a particular unavailability event, Service credits will not be payable under Section 8(C) or 8(D) for the same unavailability event. In the event that Level 3 DIA Service becomes unavailable for reasons other than an Excused Outage, Customer will be entitled to a service credit off of the port MRC for the affected Level 3 DIA Service port. Service credits are based on the cumulative unavailability of the affected Level 3 DIA Service port in a given calendar month as set forth in the following table: For Standard Level 3 DIA Service: Cumulative Uriavaf7 . ` Service Level �n i�rs.rrtir�;� setis 00:00:01 — 00:10:00 No Credit 00:10:01— 00:45:00 5% 00:45:01— 04:00:00 10% 04:00:01 — 08:00:00 20% 08:00:01—12:00:00 30% 12:00:01—16:00:00 40% 16:00:01 — 24:00:00 50% 24:00:01 or greater 100% (C) Delay Service Level. The Delay Service Level for Level 3 DIA Service is as set forth in the following table: © 2007 Level 3 Communications, Inc. All rights reserved. - 2 - Level 3 Proprietary & Confidential ,',o - Dela Servrce Intra- U.S. 25 ms Intra-Europe 15 ms London to New York, NY 40 ms The Delay Service Level is measured as an average one-way delay over a calendar month for traffic on the Level 3 network between Gateways. Delay measurements may be obtained from the Level 3 website at www.level3.com. In the event of a delay in excess of the Service Levels set forth above for reasons other than an Excused Outage, Customer will be entitled to receive a service credit off of the port MRC for the affected Level 3 DIA Service port (if applicable). Service credits, in each case, are as set forth in the following table: loin#f s bf - WSW�A-Clg"!l 0.1 — 5 ms 10% 5.1 —10 ms 20% 10.1 —15 ms 30% 15.1 — 20 ms 40% 20.1 — 25 ms 50% 25.1 ms or greater 100% (D) Packet Delivery Service Level. The Packet Delivery Service Level for Level 3 DIA Service is 99.95% for On -Net traffic between Gateways. Packet Delivery is the average number of Internet Protocol ("IP") packets of information that transit the Level 3 network and are delivered by Level 3 to the intended On -Net destination in a calendar month. Packet Delivery measurements may be obtained from the Level 3 web site at www.level3.com. In the event Level 3 does not meet the Packet Delivery Service Level for reasons other than an Excused Outage or as a result of any Off - Net Local Loop (whether provisioned by Customer or Level 3), Customer will be entitled to receive a service credit off of the port for the affected Level 3 DIA Service port (if applicable). Service credits, in each case, are as set forth in the following table: 99.5 — 99.949% 10% 99 — 99.49% 20% 98 — 98.99% 30% 97 — 97.99% 40% 96 — 96.99% 50% 95.99% or less 100% 9. Chronic Outage. Customer may elect to terminate an affected Level 3 DIA Service prior to the end of the Service Term without termination liability if, for reasons other than an Excused Outage, the Standard Level 3 DIA Service is unavailable (as defined in Section 8(B) above) for three (3) or more separate occasions of more than twelve (12) hours each OR for more than forty two (42) hours in the aggregate in any calendar month. Customer may only terminate such Level 3 DIA Service that is unavailable as described above, and must exercise its right to terminate the affected Level, 3 DIA Service under this Section, in writing, within thirty (30) days after the event giving rise to a right of termination hereunder, which termination will be effective as set forth by Customer in such notice of termination. Except for any credits that have accrued pursuant to Section 8, this Section 8 sets forth the sole remedy of Customer for chronic outages or interruptions of any Level 3 DIA Service. 10. Resale Restriction, Notwithstanding anything to the contrary in the Agreement, Customer is prohibited from reselling any Level 3 DIA Service or any ports provided pursuant to this Service Schedule to a third party without the express written consent of Level 3. [Remainder of Page Intentionally Left Blank] 0 2007 Level 3 Communications, Inc. All rights reserved. -3- Level 3 Proprietary & Confidential