FORM OF LOCAL
NETWORK SERVICES AGREEMENT
This LOCAL NETWORK SERVICES AGREEMENT (the "Agreement") is
effective as
of ___________, 2000 (the "Effective Date") between [local SAVVIS
entity], a
[limited liability company] incorporated under the laws of [country ]
("SAVVIS")
and [local Bridge/Telerate entity], a [limited liability company]
incorporated
under the laws of [country] ("Customer").
RECITALS
A. Customer is engaged in the business of collecting and
distributing
various financial, news and other data in [country] (the
"JURISDICTION").
B. SAVVIS is engaged in the business of providing Internet
Protocol
backbone and other data transport services in the Jurisdiction.
C. SAVVIS Parent and [Bridge Parent]/[Telerate Parent] have
entered
into the Network Services Agreement for the provision and receipt of
similar
services on a world-wide basis at the parent level as are being
provided and
received by the parties to this Agreement within the Jurisdiction.
D. Together with this Agreement, the SAVVIS is entering into
certain
other agreements with Customer, or Affiliates of the Customer, related
to their
operations in the Jurisdiction, including Local Transfer Agreements,
Equipment
Collocation Permits, and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the
mutual
covenants contained herein and of other good and valuable
consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Local Network
Services
Agreement by and between SAVVIS and Customer,
including all
addenda to this Agreement entered into in the manner
set forth
herein (each an "ADDENDUM" and collectively the
"ADDENDA").
This Agreement shall be interpreted wherever possible
to avoid
conflicts between the Sections hereof and the
Attachments,
provided that if such a conflict shall arise, the
Attachments
shall control.
1.2. Whenever it is provided in this Agreement for a
matter to be
mutually agreed upon by the parties and set
forth in an
Addendum to this Agreement, either party may
initiate the
process of determining such matter by submitting a
proposed
outline or contents of such Addendum to the other
party. Each
party shall appoint a primary contact and a secondary
contact
for the completion of such Addendum, who shall be the
contact
points for every issue concerning such Addendum and
who shall
be informed of the progress of the project. The
names of the
contacts will be exchanged in writing by the
parties. Using
the contacts, the parties shall work together in
good faith
with such diligence as shall be commercially
reasonable under
the circumstances to complete such Addendum,
provided,
however, that neither party shall be obligated to
enter into
such an Addendum. Upon the completion of such
Addendum, it
shall be set forth in a written document and
executed by the
parties and shall become a part of this Agreement and
shall be
deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and
phrases listed
below shall have the meanings given below, and all
defined
terms shall include the plural as well as the
singular. Unless
otherwise stated, the words "herein", "hereunder"
and other
similar words refer to this Agreement as a whole and
not to a
particular Section or other subdivision. The words
"included"
and "including" shall not be construed as terms of
limitation.
Capitalized terms not otherwise defined herein
have the
meanings assigned to such terms in the Network
Services
Agreement.
"ACQUIRED NETWORK FACILITIEs" means the assets and
contracts
for the provision of Internet Protocol backbone and
other data
transport services within the Jurisdiction to the
extent
acquired by SAVVIS pursuant to the Local Transfer
Agreement
between Customer, or Affiliates of the Customer, and
SAVVIS.
"ADDITIONAL NETWORK FACILITIES" means any assets and
contracts
of SAVVIS for the provision of Internet Protocol
backbone and
other data transport services other than the Acquired
Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-
2 of the
regulations promulgated under the Securities
Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning
on the
Effective Date and each subsequent anniversary
thereof.
["BRIDGE PARENT" means Bridge Information
Systems, Inc.,
a Missouri corporation, and its successors and
assigns.]
"CONFIDENTIAL INFORMATION" means all information
concerning
the business of Customer, SAVVIS or any third
party doing
business with either of them that may be obtained
from any
source (i) by SAVVIS by virtue of its performance
under this
Agreement or (ii) by Customer by virtue of its
use of the
Networks. Such information shall also include the
terms of
this Agreement (and negotiations and proposals from
one party
to the other related directly thereto), network
designs and
design recommendations, tools and programs, pricing,
methods,
processes, financial data, software, research,
development,
strategic plans or related information. All such
information
disclosed prior to the execution of this Agreement
shall also
be considered Confidential Information for purposes
of this
Agreement.
Confidential Information shall not include information
that:
(a) is already rightfully known to the
receiving
party at the time it is obtained
by such
party, free from any obligation to
keep such
information confidential; or
(b) is or becomes publicly known
through no
wrongful act of the receiving party;
or
(c) is rightfully received by the
receiving
party from a third party without
restriction
and without breach of this
Agreement.
"CUSTOMER" means [local Bridge/Telerate entity], a
[limited
liability company] incorporated under the laws of
[country],
and its successors and assigns.
"EFFECTIVE DATE" means the date set forth in the
Preamble of
this Agreement.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned
to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive
Agreement
Years beginning on the Effective Date.
"INSTALLATION SITE" means any facility of
Customer or of
vendors or customers of Customer at which one or
more of the
Networks is installed.
"LOCAL EXCHANGE CARRIER" means the local
telecommunications
provider(s) from which SAVVIS leases the lines
it makes
available to Customer.
"LOCAL [TELERATE]/[Bridge] Network Services Agreement"
means a
local network services agreement pursuant to which
SAVVIS
shall provide Internet Protocol backbone and
other data
transport services to an Affiliate of
[Telerate
Parent]/[Bridge Parent] operating in the Jurisdiction.
"MARKET HOURS" means, with respect to any
Installation Site,
the period of time beginning two hours before the
time at
which trading opens on the principal securities
exchange or
automated quotation system designated by Customer in
writing
from time to time as being used by the purchasers and
sellers
of securities at such Installation Site, and ending
two hours
after the time at which such trading ceases to be
conducted.
"NETWORK" and "NETWORKS" have the meaning assigned
to such
terms in Section 2.1 of this Agreement.
"NETWORK SERVICES AGREEMENT" means the Network
Services
Agreement between SAVVIS Parent and [Bridge Parent]/
[Telerate
Parent], effective as of _________, 2000.
"POP" means point-of-presence.
"QUALITY OF SERVICE STANDARDS" means the standards
for the
performance of the Networks contained in Schedule
2.2 hereto
or an Addendum to this Agreement.
"SAVVIS" means [local SAVVIS entity], a [limited
liability
company] incorporated under the laws of [country ],
and its
successors and assigns.
"SAVVIS PARENT" means SAVVIS Communications
Corporation, a
Missouri corporation, its successors and assigns.
"SECURITIES EXCHANGE ACT" means the United States
Securities
Exchange Act of 1934, as amended.
"TAIL CIRCUIT" means the access line or other
communications
circuit from the SAVVIS POP to an Installation Site.
["TELERATE PARENT" means Telerate Holdings, Inc., a
Delaware
corporation, and its successors and assigns.]
"TRANSITION PERIOD" has the meaning assigned to such
term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network
Facilities to
provide to Customer the following managed
packet-data
transport networks, including the operation,
management and
maintenance thereof:
(a) that portion of a global office-automation
network
located in the Jurisdiction, providing
connectivity
between the offices of Customer, Bridge
Parent and
Affiliates of Bridge Parent (the "OA
NETWORK"),
(b) that portion of a global data collection
network
located in the Jurisdiction (the
"COLLECTION
NETWORK") and
(c) that portion of a global data distribution
network
located in the Jurisdiction (the
"DISTRIBUTION
NETWORK"),
which shall be referred to in this
Agreement
collectively as the "Networks" and
individually as a
"Network."
2.2. Each Network shall be operated, managed and
maintained by
SAVVIS. SAVVIS may, but shall not be obligated
to, use
facilities of SAVVIS other than the Acquired
Network
Facilities to provide all or any part of any
Network.
Beginning on the first anniversary of the Effective
Date and
thereafter, each Network shall be operated,
managed and
maintained by SAVVIS according to the Quality of
Service
Standards set forth in Schedule 2.2 hereof, and
SAVVIS shall
be responsible for monitoring the performance of the
Networks
with respect to the Quality of Service Standards
and shall
provide Customer with monthly reports of such
performance. If
the Quality of Service Standards are not met with
respect to a
particular Installation Site in any month, Customer
shall be
entitled to receive, upon written request by
Customer within
30 days of its receipt of the performance report
for such
Installation Site for such month, a credit in the
amount set
forth on Schedule 2.2 attached hereto, which amount
shall be
deemed to be one month's charges applicable
to such
Installation Site under this Agreement with respect
to such
month; provided, however, that Customer shall not be
entitled
to such credit to the extent that the failure to
meet the
Quality of Service Standards with respect to such
Installation
Site is due to (i) an act or omission of Customer or
a vendor
or customer of Customer or (ii) equipment or software
used by
Customer and not provided by SAVVIS. Not more than
one credit
of one month's charges shall be given for a
particular
Installation Site for a particular month. For all
purposes of
this Agreement, including without limitation the
determination
of an Event of Default by SAVVIS, the Quality of
Service
Standards applicable to a particular Installation
Site in any
month shall be deemed to have been met unless
Customer, within
30 days of its receipt of the performance report
for such
Installation Site for such month, requests in writing
a credit
as set forth above with respect to such Installation
Site for
such month.
2.3. [Intentionally omitted.]
2.4. In providing Additional Network Facilities, SAVVIS
agrees to
use its best efforts to expedite the provisioning
of the
circuits for such Additional Network Facilities
in those
instances in which SAVVIS is responsible for
provisioning such
circuits, and to use its best efforts to avoid single
points
of failure in the engineering design of such
Additional
Network Facilities, consistent with the level of
redundancy
specified in the applicable Addendum.
2.5. Throughout the term of this Agreement, SAVVIS shall
use its
reasonable best efforts to continue to meet the
requests of
Customer to enhance the total capacity, geographic
extension
and performance quality of the Networks, and to
maintain its
research and development effort at a level
appropriate to
sustain the ability of Customer to compete on the
basis of the
quality of the Networks.
3. RATES AND CHARGES
3.1. Customer shall pay SAVVIS for the Networks using the
Acquired
Network Facilities and Additional Network Facilities
according
to the rates and charges set forth in Schedule
3.1 of the
Network Services Agreement.
3.2. The parties recognize that certain savings might be
obtained
by consolidating the multiple Local Access Facilities
that are
provided at such building locations on the Effective
Date. In
the event that SAVVIS consolidates the multiple
Local Access
Facilities at one or more of such building
locations and
obtains cost savings as a result thereof, the
parties will
mutually agree within 30 days following such
consolidation on
the manner in which such savings shall be shared as
follows:
(a) between SAVVIS and Customer,
if only
Customer uses those consolidated
Local
Access Facilities; or
(b) between SAVVIS, Customer and the
Affiliate
of [Telerate Parent]/[Bridge Parent]
that is
a party to the Local [Telerate]/
[Bridge]
Network Services Agreement, if both
Customer
and such Affiliate use those
consolidated
Local Access Facilities.
3.3. For any Installation Site to which SAVVIS is
providing
services both under this Agreement and a
Local
[Telerate]/[Bridge] Network Services Agreement, the
rates and
charges applicable to such Installation Site
under this
Agreement shall be one-half of the rates and
charges that
would otherwise be applicable to such Installation
Site under
this Agreement.
4. PROVISION OF TAIL CIRCUITS
4.1. SAVVIS shall use its reasonable efforts to
provide a Tail
Circuit to Customer by contracting with the Local
Exchange
Carrier for access to the Tail Circuit and causing
the Tail
Circuit to be operated, managed, and maintained as
necessary
to provide access thereto to Customer. SAVVIS
does not
guarantee or warrant the performance of the Tail
Circuit or
the performance by the Local Exchange Carrier
of its
obligations under any contract between SAVVIS and
the Local
Exchange Carrier, applicable laws and
regulations, or
standards of the industry.
4.2. Customer shall not use the Tail Circuit in any way
that might
cause SAVVIS to violate the terms and conditions
under which
access to the Tail Circuit is provided by the Local
Exchange
Carrier, whether such terms and conditions be
contractual,
regulatory, or other.
4.3. Customer shall be responsible for only that portion of
SAVVIS'
costs attributable to Customer's own access to and
use of the
Tail Circuit. In the event that SAVVIS provides
access to any
third party or parties, Customer and SAVVIS will
follow the
procedure set forth in Section 1.2 above in order to
establish
a mutually agreed upon method or formula for
determining the
amount to be charged to Customer, generally based
on a pro
rata allocation of SAVVIS' total costs among all its
customers
and other relevant considerations and/or fair and
reasonable
adjustments in light of the circumstances at that
time.
5. INVOICES
5.1. The amounts due to SAVVIS from Customer for the
installation,
operation, management and maintenance of the Networks
shall be
billed monthly in advance. All items on invoices
not the
subject of a bona fide dispute shall be payable by
Customer in
[local currency] within 30 days from the date of
receipt of
the invoice. All amounts not in dispute are
subject to
interest charges of 1-1/2 percent that will accrue
daily on
all amounts not paid within 30 days of the date of
receipt of
the invoice.
5.2. At any time and from time to time, Customer may, by
written
notice to SAVVIS, have one or more Installation Sites
removed
from the Networks. Each monthly invoice from
SAVVIS to
Customer shall reflect a reduction in the amount
charged to
Customer for the Networks resulting from any such
removal of
Installation Sites. In the case of any
Installation Site
removed from the Acquired Network Facilities, such
reduction
shall be the sum of:
(a) the actual cost of the Local Access
Facilities
connecting the Acquired Network Facilities
to such
Installation Site, effective as of such
time as
SAVVIS is no longer required to pay such
costs, and
(b) the amounts set forth on Schedule 5.2 of the
Network
Services Agreement, which are deemed to
be one
month's charges applicable to such
Installation Site
under this Agreement with respect to
such month
during the first Agreement Year, according
to the
geographic location and connection speed
at such
Installation Site, effective as of such time
as such
Installation Site is disconnected from the
Networks.
5.3. Customer shall pay any sales, use, federal excise,
utility,
gross receipts, state and local surcharges, value
added and
similar taxes, charges or levies lawfully levied
by a duly
constituted taxing authority against or upon the
Networks. In
the alternative, Customer shall provide SAVVIS
with a
certificate evidencing Customer's exemption from
payment of or
liability for such taxes. All other taxes, charges or
levies,
including any ad valorem, income, franchise,
privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be
referred to
the parties' respective representatives who are
authorized to
resolve such matters. Any amount to which Customer is
entitled
as a result of the resolution of a billing dispute
shall be
credited promptly to Customer's account. Any amount
to which
SAVVIS is entitled as a result of the resolution of a
billing
dispute shall be paid promptly to SAVVIS.
5.5. Against the amounts owed by Customer to SAVVIS
under this
Agreement, Customer shall have the right to offset any
amounts
owed by SAVVIS to Customer under this Agreement, or
otherwise,
including without limitation any amounts paid by
Bridge Parent
on behalf of SAVVIS under guarantees by Bridge
Parent of
obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date
and shall
continue in full force and effect for the Initial
Term unless
terminated or extended in accordance with the
provisions
hereof.
6.2. The term of this Agreement may be extended by Customer
for one
additional five-year period by giving SAVVIS
written notice
not less than one year before the scheduled
expiration of the
Initial Term.
6.3. Upon the termination of this Agreement in accordance
with its
scheduled expiration or by Customer pursuant to
Section 7,
SAVVIS will continue to provide the Networks in
accordance
with the terms and conditions herein (excluding the
Minimum
Annual Commitment) for a period of up to five years
after the
effective date of termination (the "TRANSITION
PERIOD").
During the Transition Period, Customer shall pay
SAVVIS for
the use of the Networks at the rates in effect
at the
effective date of termination. If Customer has not
completely
transitioned from its use of the Networks after the
Transition
Period, SAVVIS will provide the Networks at
SAVVIS' then
current list rates. SAVVIS and its successor will
cooperate
with Customer until Customer has completely
migrated to
another provider.
6.4. The above provisions of this Section 6
notwithstanding, the
term of this Agreement, including the Initial Term
and any
extension provided under Section 6.2, and the
Transition
Period shall not extend beyond the term or the
transition
period of the Network Services Agreement.
7. TERMINATION BY CUSTOMER
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to
occur if:
(a) SAVVIS has failed to a material degree to
perform or
comply with or has violated any
material
representation, warranty, term,
condition or
obligation of SAVVIS under this Agreement,
and SAVVIS
has failed to cure such failure or violation
within
60 days after receiving notice thereof from
Customer;
or
(b) SAVVIS becomes the subject of a
voluntary or
involuntary bankruptcy, insolvency,
reorganization or
liquidation proceeding, makes an assignment
for the
benefit of creditors, or admits in
writing its
inability to pay debts when due; or
(c) an Event of Default by SAVVIS occurs under
the Local
[Telerate]/[Bridge] Network Services
Agreement or
SAVVIS Parent defaults under the terms of the
Network
Services Agreement.
7.2. Customer shall have the right to terminate this
Agreement,
with no liability to SAVVIS other than for charges
(less any
applicable credits) for the Networks provided prior
to such
termination, if:
(a) Customer provides written notice to SAVVIS,
at any
time after the ninth anniversary of the
Effective
Date, of Customer's intent to
terminate, such
termination to be effective not less than
one year
following the date of such notice; or
(b) Customer provides 10 days written notice
of its
intent to terminate in the event that
an Event
of Default by SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of
Service
Standards are not met with respect to a
particular
Installation Site in any month, SAVVIS shall be deemed
to have
cured such failure within 60 days if the Quality of
Service
Standards are met with respect to such Installation
Site in
the following month. The parties acknowledge and
agree that
the failure of the Quality of Service Standards to be
met with
respect to one or more Installation Sites in one
or more
months may, but does not necessarily, constitute a
failure by
SAVVIS to a material degree to perform or comply
with or a
violation to a material degree of any material
representation,
warranty, term, condition or obligation of SAVVIS
under this
Agreement.
7.4. As provided in Section 2.2, for all purposes of this
Agreement, including without limitation the
determination of
an Event of Default by SAVVIS under this Section, the
Quality
of Service Standards applicable to a particular
Installation
Site in any month shall be deemed to have been met
unless
Bridge, within 30 days of its receipt of the
performance
report for such Installation Site for such month,
requests in
writing a credit as set forth in Section 2.2 with
respect to
such Installation Site for such month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this
Agreement if:
(a) Customer has failed to pay any invoice
that is not
the subject of a bona fide dispute within 60
days of
the date on which such payment is due and
SAVVIS has
provided Customer with written notice
thereof,
provided that Customer shall have a further
30 days
from the time it receives such notice from
SAVVIS of
nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of
its intent
to terminate in the event that Customer has
failed to
perform or comply with or has violated any
material
representation, warranty, term,
condition or
obligation of Customer under this
Agreement, and
Customer has failed to cure such failure or
violation
within 60 days after receiving notice
thereof from
SAVVIS; or
(c) Customer becomes the subject of a
voluntary or
involuntary bankruptcy, insolvency,
reorganization or
liquidation proceeding, makes an assignment
for the
benefit of creditors, or admits in
writing its
inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate
the Local
[Telerate]/[Bridge] Network Services
Agreement or
SAVVIS Parent becomes entitled to
terminate the
Network Services Agreement.
8.2. Notwithstanding the provisions of Section 8.1(b)
above, SAVVIS
shall not have the right to terminate this
Agreement under
Section 8.1(b) solely for a failure by Customer to
perform or
comply with, a violation by Customer of, the
obligations of
Customer under Section 15 (Confidentiality) of this
Agreement,
without prejudice, however, to such rights as SAVVIS
may have
pursuant to such Section and to such rights and
remedies to
which SAVVIS may be entitled, at law or in equity,
as the
result of an actual or threatened breach by Customer
of such
Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network
Facilities at any
Installation Site, SAVVIS shall conduct appropriate
tests to
establish that such Additional Network Facilities
perform in
accordance with mutually agreed upon acceptance
criteria
("ACCEPTANCE CRITERIA") set forth in the applicable
Addendum
entered into pursuant to Section 2.4, and shall
promptly
inform Customer of such test results. If test
results show
that the Additional Network Facilities are
performing in
accordance with the Acceptance Criteria, Customer
shall be
deemed to accept the Additional Network Facilities
at the
Installation Site immediately.
9.2. If SAVVIS' tests establish that newly installed
Additional
Network Facilities at the Installation Site do not
perform in
accordance with the mutually agreed upon Acceptance
Criteria,
then SAVVIS shall immediately and diligently exert
its best
efforts to bring the Additional Network Facilities
at such
Installation Site into compliance. SAVVIS shall
not bill
Customer for the Additional Network Facilities
at such
Installation Site until the test results show
that the
Additional Network Facilities are performing in
accordance
with the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the
Networks, SAVVIS
shall conduct appropriate tests to establish that the
Networks
perform in accordance with mutually agreed upon
Acceptance
Criteria and shall promptly inform Customer of
such test
results.
10. RIGHTS AND OBLIGATIONS OF CUSTOMER
10.1. SITE PREPARATION. For the installation of Additional
Network
Facilities, Customer shall, at its own expense,
provide all
necessary preparations of each Installation Site in
accordance
with the requirements to be mutually agreed upon
by the
parties and set forth in an Addendum hereto,
including inside
wiring, demarcation extension and rack mount
accessories.
Customer shall ensure that Customer-provided
equipment is
on-site by the scheduled installation date. If
SAVVIS is
required to reschedule the installation of Customer-
provided
equipment because it is not on-site by the
scheduled
installation date, Customer shall pay SAVVIS to
redispatch
installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Customer shall use any equipment provided
by SAVVIS
in connection with the Networks in
accordance with
its documentation, which documentation
shall be
provided by SAVVIS at no additional charge.
Unless
otherwise provided herein, upon the
termination of
this Agreement Customer shall surrender
to SAVVIS
the equipment provided by SAVVIS, in good
working
order, ordinary wear and tear excepted.
10.2.2. Customer shall be liable for damages to the
Networks
caused by the negligence or willful
acts or
omissions of Customer's officers,
employees, agents
or contractors, for loss through theft or
vandalism
of the Networks at the Installation Site,
and for
damages to the Networks caused by the
use of
equipment or supplies not provided
hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Customer shall neither permit nor assist
others to
use the Networks for any purpose other than
that for
which they are intended, nor fail to
maintain a
suitable environment specified by SAVVIS
in the
applicable schedule, nor alter, tamper
with, adjust
or repair the Networks. Any such
alteration,
tampering, adjustment or repair by
Customer shall
relieve SAVVIS from any liability or
obligation
hereunder (including any warranty or
indemnity
obligation) relating to the affected
Network, and
Customer shall be liable to SAVVIS
for any
documented direct costs incurred by
SAVVIS as a
result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Customer shall
neither
permit nor assist others to abuse or fraudulently
use the
Networks, or to use the Networks for any
unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service
by any
fraudulent means or device to avoid payment;
or
(b) accessing, altering or destroying any
information of
another party by any fraudulent means or
device, or
attempting to do so; or
(c) using the Networks so as to interfere with
the use of
the SAVVIS network by other SAVVIS
customers or
authorized users or in violation of law or in
support
of any unlawful act; or
(d) using the Networks for voice communications
over a
private network in jurisdictions where
such use is
not allowed.
Notwithstanding the provisions of Section 8, upon
the breach
of this Section 10.3 by Customer, SAVVIS shall have
the right
to terminate this Agreement immediately upon written
notice to
Customer.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter
into this
Agreement, which Customer acknowledges is of
benefit
to it, and in consideration of the
promises and
representations of SAVVIS under this
Agreement,
Customer covenants and agrees that during
the term
of this Agreement and for a period of
five years
thereafter, neither Customer nor any
of its
successors or assigns will, directly or
indirectly,
engage in, or have any interest in any other
person,
firm, corporation or other entity engaged
in, any
business activities anywhere in the
world
competitive with or similar or related
to the
packet-data transport network services
provided by
SAVVIS under this Agreement; provided,
however, that
(i) Customer shall be free to continue to
use the
Call Assets and the satellite networks
currently
used by Customer, until such Call
Assets or
satellite networks have been acquired by
SAVVIS,
SAVVIS Parent or Affiliates of SAVVIS
Parent, and
(ii) Customer shall be free to make
passive
investments in securities of companies that
provide
network services in competition with
SAVVIS which,
in the case of any such security,
does not
constitute more than ten percent (10%) of
the total
outstanding amount of such security.
10.4.2. If any court or tribunal of competent
jurisdiction
shall refuse to enforce one or more of the
covenants
in this Section 10.4 because the
time limit
applicable thereto is deemed
unreasonable, it is
expressly understood and agreed that such
covenant
or covenants shall not be void but that
for the
purpose of such proceedings such time
limitation
shall be deemed to be reduced to the
extent
necessary to permit the enforcement of such
covenant
or covenants.
10.4.3. If any court or tribunal of competent
jurisdiction
shall refuse to enforce any or all of the
covenants
in this Section 10.4 because, taken
together, they
are more extensive (whether as to
geographic area,
scope of business or otherwise) than is
deemed to be
reasonable, it is expressly understood
and agreed
between the parties hereto that such
covenant or
covenants shall not be void but that for the
purpose
of such proceedings the restrictions
contained
therein (whether as to geographic area,
scope of
business or otherwise) shall be deemed to be
reduced
to the extent necessary to permit the
enforcement of
such covenant or covenants.
10.4.4. Customer specifically acknowledges and
agrees that
the foregoing covenants are commercially
reasonable
and reasonably necessary to protect the
interests of
SAVVIS hereunder. Customer hereby
acknowledges that
SAVVIS and its successors and assigns
will suffer
irreparable and continuing harm to the
extent that
any of the foregoing covenants is breached
and that
legal remedies would be inadequate in the
event of
any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate,
maintain and
manage the Networks at the Installation Sites
using the
Acquired Network Facilities in accordance with the
Quality of
Service Standards and other terms of this Agreement,
including
all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. [Intentionally omitted.]
11.2.2. SAVVIS hereby represents and warrants that
the terms
hereof do not conflict in any respect
whatsoever
with any SAVVIS tariff on file with the
Federal
Communications Commission or other
regulatory body.
If, during the term of this Agreement,
SAVVIS shall
file a contract specific tariff
governing the
Networks or any portion thereof, such
tariff filing
shall be consistent in all respects with
the terms
of this Agreement, and SAVVIS shall give
Customer 10
days advance written notice of making such
a tariff
filing and of filing any subsequent
modifications
thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS
FOR A PARTICULAR PURPOSE.
11.3. SAVVIS acknowledges that the occurrence of Event of
Default by
SAVVIS, arising from either (i) a failure of the
Networks to
meet Quality of Service Standards or (ii) a total
loss to
Bridge of the use of the Networks, could cause
irreparable
harm to Customer, the amount of which may be
difficult to
determine, thus potentially making any remedy at
law or in
damages inadequate. SAVVIS, therefore, agrees that
Customer
shall have the right to apply to any court of
competent
jurisdiction for injunctive relief upon the
occurrence of an
Event of Default by SAVVIS or the occurrence of
an event
which, with the passage of time or the giving of
notice, could
become an Event of Default by SAVVIS and for
any other
appropriate relief. This right shall be in
addition to any
other remedy available to Customer in law or equity.
SAVVIS
further agrees that, upon the occurrence of an
Event of
Default by SAVVIS, SAVVIS shall pay to Customer, as
liquidated
damages and not as a penalty, an amount equal to the
lesser of
(a) the aggregate amounts paid by Customer to
SAVVIS under
this Agreement during the six months preceding such
Event of
Default by SAVVIS or (b) $50,000,000; provided,
however, that
Customer may recover liquidated damages under this
Section
only for an Event of Default by SAVVIS that occurs
(i) prior
to any Event of Default by SAVVIS for which
Customer has
claimed liquidated damages under this Section, or
(ii) more
than 36 months following the most recent Event of
Default by
SAVVIS for which Customer has claimed liquidated
damages under
this Section.
12. LIMITATIONS OF LIABILITY
12.1. Neither party shall be liable to the other for
indirect,
incidental, consequential, exemplary, reliance or
special
damages, including damages for lost profits,
regardless of the
form of action whether in contract, indemnity,
warranty,
strict liability or tort, including negligence of
any kind
with respect to the Networks or other conduct
under this
Agreement.
12.2. Nothing contained in this Section shall limit either
party's
liability to the other for (a) willful or
intentional
misconduct, including fraud, or (b) injury or death,
or damage
to tangible real or tangible personal property
or the
environment, when proximately caused by SAVVIS' or
Customer's
negligence or that of their respective agents,
subcontractors
or employees. Nothing contained in this Section
shall limit
SAVVIS' intellectual property indemnification
obligations
under Section 16.1 or Customer's indemnification
obligations
with respect to a breach of Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the
installation,
operation or maintenance of equipment or software not
provided
by it under this Agreement, nor shall SAVVIS be
responsible
for the transmission or reception of information by
equipment
or software not provided by SAVVIS hereunder. In
the event
that Customer uses equipment or software not
provided by
SAVVIS hereunder in a manner that impairs Customer's
use of
the Networks, Customer shall not be excused from
payment for
such use and SAVVIS shall not be responsible for any
failure
of the Networks to meet the Quality of Service
Standards
resulting from the use of such equipment or
software by
Customer. Upon notice from SAVVIS that the
equipment or
software not provided by SAVVIS under this
Agreement is
causing or is likely to cause hazard, interference or
service
obstruction, Customer shall eliminate the likelihood
of such
hazard, interference or service obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no
additional
charge, provide all interface specifications for the
Networks
reasonably requested by Customer. SAVVIS shall,
upon the
receipt of appropriate specifications from Customer,
inform
Customer of the compatibility with the Networks
of any
equipment or software that Customer proposes to
use in
connection therewith, the effects, if any, of the use
of such
equipment or software on the quality,
operating
characteristics and efficiency of the Networks,
and the
effects, if any, of the Networks on the
operating
characteristics and efficiency of any such
equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Customer a non-
exclusive and
non-transferable license to use all programming and
software
necessary for Customer to use the Networks. Such
license is
granted for the term of this Agreement for the sole
purpose of
enabling Customer to use the Networks.
14.2. All title and property rights (including intellectual
property
rights) to the Networks (including associated
programming and
software) are and shall remain with SAVVIS or the
third-party
providers thereof to SAVVIS. Customer shall not
attempt to
examine, copy, alter, reverse engineer,
decompile,
disassemble, tamper with or otherwise misuse the
Networks,
programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period
of five
years from the date of its expiration or
termination
(including all extensions thereof), each party
agrees to
maintain in strict confidence all Confidential
Information.
Neither party shall, without prior written
consent of the
other party, use the other party's Confidential
Information
for any purpose other than for the performance of
its duties
and obligations, and the exercise of its rights,
under this
Agreement. Each party shall use, and shall
cause all
authorized recipients of the other party's
Confidential
Information to use, the same degree of care to
protect the
other party's Confidential Information as it uses to
protect
its own Confidential Information, but in any event
not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may
disclose the
Confidential Information of the other party to:
(a) its
employees and the employees, directors and
officers of its
Affiliates as necessary to implement this
Agreement; (b)
employees, agents or representatives of the other
party; or
(c) other persons (including counsel, consultants,
lessors or
managers of facilities or equipment used by such
party) in
need of access to such information for purposes
specifically
related to either party's responsibilities
under this
Agreement, provided that any disclosure of
Confidential
Information under clause (c) shall be made only
upon prior
written approval of the other party and subject
to the
appropriate assurances that the recipient of such
information
shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary
rights to
Confidential Information, the party in possession
of such
information shall promptly return it (including any
copies,
extracts and summaries thereof, in whatever form
and medium
recorded) to the requesting party or, with the other
party's
written consent, shall promptly destroy it and
provide the
other party with written certification of such
destruction.
15.4. Either party may request in writing that the other
party waive
all or any portion of the requesting party's
responsibilities
relative to the other party's Confidential
Information. Such
waiver request shall identify the affected information
and the
nature of the proposed waiver. The recipient of the
request
shall respond within a reasonable time and, if it
determines,
in its sole discretion, to grant the requested waiver,
it will
do so in writing over the signature of an employee
authorized
to grant such request.
15.5. Customer and SAVVIS acknowledge that any
disclosure or
misappropriation of Confidential Information in
violation of
this Agreement could cause irreparable harm, the
amount of
which may be difficult to determine, thus potentially
making
any remedy at law or in damages inadequate. Each
party,
therefore, agrees that the other party shall have the
right to
apply to any court of competent jurisdiction for
an order
restraining any breach or threatened breach of this
Section
and for any other appropriate relief. This right
shall be in
addition to any other remedy available in law or
equity.
15.6. A party requested or ordered by a court or other
governmental
authority of competent jurisdiction to disclose
another
party's Confidential Information shall notify the
other party
in advance of any such disclosure and, absent
the other
party's consent to such disclosure, use its best
efforts to
resist, and to assist the other party in
resisting, such
disclosure. A party providing another party's
Confidential
Information to a court or other governmental
authority shall
use its best efforts to obtain a protective
order or
comparable assurance that the Confidential
Information so
provided will be held in confidence and not further
disclosed
to any other person, absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not
apply to
reasonably necessary disclosures in or in
connection with
filings under any securities laws, regulatory
filings or
proceedings, financial disclosures which in the
good faith
judgment of the disclosing party are required
by law,
disclosures required by court or tribunal or
competent
jurisdiction, or disclosures that may be reasonably
necessary
in connection with the sale of securities or the
performance
or enforcement of this Agreement or any of the
obligations
hereof; provided, however, that if the receiving
party would
otherwise be required to refer to or describe any
aspect of
this Agreement in any of the preceding
circumstances, the
receiving party shall use its reasonable efforts to
take such
steps as are available under such circumstances
(such as by
providing a summary or synopsis) to avoid disclosure
of the
financial terms and conditions of this
Agreement.
Notwithstanding any provisions of this Agreement
to the
contrary, either party may disclose the terms and
conditions
of this Agreement in the course of a due diligence
review
performed in connection with prospective debt
financing or
equity investment by, or a sale to, a third party, so
long as
the persons conducting such due diligence review
have agreed
to maintain the confidentiality of such disclosure
and not to
use such disclosure for any purpose other such due
diligence
review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at
its own
cost and expense any claim or action against
Customer or any
of its directors, officers, employees or assigns for
actual or
alleged infringement by the Networks of any patent,
copyright,
trademark, trade secret or similar proprietary
right of any
third party, except to the extent that such actual or
alleged
infringement arises from (i) such actual or
alleged
infringement by the Acquired Network Facilities
on the
Effective Date or (ii) an act or omission of
Customer or a
vendor or customer of Customer or (iii) equipment or
software
used by Customer and not provided by SAVVIS.
Customer shall
notify SAVVIS promptly in writing of any such claim
or suit
and shall cooperate with SAVVIS in a reasonable
way to
facilitate the settlement or defense thereof. SAVVIS
further
agrees to indemnify and hold Customer harmless
from and
against any and all liabilities and damages (whether
incurred
as the result of a judicial decree or a settlement),
and the
costs and expenses associated with any claim or
action of the
type identified in this Section (including
reasonable
attorneys' fees).
16.2. If, as a consequence of a claim or action of
the kind
described in Section 16.1, SAVVIS' or Customer's use
of all or
part of any Network is enjoined, SAVVIS shall, at
its option
and expense, either: (a) procure for Customer the
right to
continue using the affected Network; (b) modify such
Network
so that they are non-infringing, provided
that such
modification does not affect the intended use of the
Network
as contemplated hereunder. If SAVVIS does not take
any of the
actions described in clauses (a) or (b), then
Customer may
terminate the affected portion of such Network,
and SAVVIS
shall refund to Customer any prepaid charges therefor.
16.3. Subject to Section 12, Customer will defend,
indemnify and
hold harmless SAVVIS or any of its directors,
officers,
employees or assigns from and against all loss,
liability,
damage and expense, including reasonable
attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of
privacy or
infringement of copyright, and invasion
and/or
alteration of private records or data
arising from
any information, data or messages
transmitted over
the Networks by Customer;
(b) claims for infringement of patents arising
from the
use by Customer of equipment and software,
apparatus
and systems not provided hereunder in
connection with
the Networks; and
(c) the violation of any representations,
warranties and
covenants made by Customer in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify
and hold
harmless Customer or any of its directors, officers,
employees
or assigns from and against all loss, liability,
damage and
expense, including reasonable attorneys' fees, caused
by:
(a) claims for infringement of patents arising
from the
use by SAVVIS of equipment and software,
apparatus
and systems not provided by SAVVIS
hereunder in
connection with the Networks (other than any
Acquired
Network Facilities); and
(b) the violation of any representations,
warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1
of this
Agreement, the resolution of any and all disputes
arising from
or in connection with this Agreemen
