Fill and Sign the Services Agreement and Statement of Work by Secgov Form

FACILITIES AND SERVICES AGREEMENT This Facilities and Services Agreement ("Agreement") sets forth the terms and conditions which shall govern Customer's lease of certain space at Sprint's Point-of-Presence ("POP") for the purpose of locating certain Customer-provided equipment at such space. 1. TERM. The term of this Agreement ("Term") shall coincide with the period set forth in Section 3 of the Managed Network Agreement between Sprint and Customer as amended, unless terminated by either Party pursuant to the provisions of Paragraph 16 herein. The Term of this Agreement shall be automatically renewed for successive one year periods, unless either Party provides written notice of termination ninety (90) days prior to the end of the then current Term. 2. EQUIPMENT RACK SPACE. Sprint agrees to lease to Customer, and Customer agrees to lease from Sprint, during the Term, floor space and such other space as is reasonably necessary for the installation of Customer provided equipment ("Equipment Rack Space") at the Sprint POP site(s) specified on Exhibit "A" attached hereto. Access to the Equipment Rack Space shall be provided to Customer at all times upon reasonable advance notice to Sprint, by Sprint escort only, at such rates as are set forth in Paragraph 7 hereof. Customer accepts the Equipment Rack Space "as is" and hereby covenants and agrees to use the Equipment Rack Space for the purposes herein set forth and for no other purpose and in strict accordance with the terms and conditions of any applicable Sprint leases, and further agrees to not do, or omit to do, anything which will breach any of the terms or conditions of such applicable Sprint leases or cause damage and/or injury to the property and/or personnel of Sprint and/or other Sprint customers. For lease of the Equipment Rack Space during the Term, Customer shall pay Sprint (i) non-recurring site preparation charge of * per each instance of rack and/or ancillary services installation activity which includes up to two (2) consecutive working days for installation supervision and escort (thereafter, the escort rates as outlined in Paragraph 7 herein will apply); and (ii) a monthly recurring fee of *per each Equipment Rack Space per Sprint POP site used, which shall include the cost of electrical power furnished to Customer by Sprint hereunder. The non-recurring site preparation charge and monthly recurring fee shall not begin until the equipment specified in Exhibit A is installed. * CONFIDENTIAL TREATMENT REQUESTED - -------------------------------------------------------------------------------- Bridge F-1 January 26, 1996 Amendment 3 3. SITE CLEAN UP. Customer will be responsible for removal of all installation material and clean up of effected POP site(s) after completion of Customer equipment installation in the Equipment Rack Space. 4. DEMARCATION POINT. The point at which the Customer's network interconnects with the Sprint network shall be the Sprint provided DSX cross connect (interface) at each Sprint POP site. This point will be referred to as the Demarcation Point. The Demarcation Point will designate where the division of responsibility of providing service and connectivity takes place. Customer shall provide the necessary interface cabling to the Demarcation Point. Sprint will be responsible for the service from the Demarcation Point through the completion of the circuit through the Sprint network. The Customer will be responsible for the service from the Demarcation Point at each Sprint POP site to the Customer's premises. 5. INSTALLATION AND TESTING. Customer shall engineer, furnish, install and test, at its sole cost and expense, all Customer supplied equipment in the Equipment Rack Space. Prior to installation, this Agreement shall be fully executed by both Parties or otherwise incorporated into any existing agreement between the Parties, and Customer shall submit to Sprint for its approval all engineering plans and specifications pertaining to Customer supplied equipment to be installed in the Equipment Rack Space. Installation and testing by Customer of equipment located in the Equipment Rack Space shall at all times be under the direct supervision of a Sprint escort. Title to equipment furnished by Customer hereunder shall, at all times, remain in Customer. All equipment supplied by Customer shall be labeled by the Customer as such. 6. EQUIPMENT MAINTENANCE. During the Term, Customer shall provide maintenance on all Customer supplied equipment installed in Equipment RackSpace. All requests for escort service are to be made to the appropriate POP site or Sprint designated location for each Equipment Rack Floor Space location. Contact telephone numbers for each POP site are specified on EXHIBIT A, and can be called 24 hours per day, 7 days a week. 7. ESCORT RATES. Sprint will provide escort service for the Customer to maintain equipment as aforesaid, on a per call basis at the rate of * per hour. Escort services are provided for emergency repair and routine maintenance under guidelines as specified in Paragraph 22. * CONFIDENTIAL TREATMENT REQUESTED - -------------------------------------------------------------------------------- Bridge F-2 January 26, 1996 Amendment 3 The foregoing rate shall apply to all Customer escort requests and are subject to a one (1) hour minimum charge per call as well as the specifications as noted in EXHIBIT A. 8. PERMITS AND FEES. Customer will be responsible for any permits and/or fees, as required, between the Demarcation Point at each Sprint POP site to the Customer's premises. 9. ORDER ADMINISTRATION. Customer shall place orders from time to time during the Term for Sprint services to be provided hereunder by submitting to Sprint such information as Sprint shall reasonably request. 10. POWER. During the Term, Sprint shall furnish to Customer electrical power necessary to meet the reasonable requirements of Customer at the POP site(s) specified on Exhibit A. If the power provided by Sprint causes interference with the proper operation of Customer's equipment, the Customer will be responsible for providing at Customer's sole expense any filtering or regulation devices within the Equipment Rack Space, to correct the interference. 11. TRANSFER, SALE AND ASSIGNMENT. Customer shall not sell, assign, transfer or otherwise encumber any interest it has hereunder or may have in the Equipment Rack Space, the POP(s), POP site(s), or Sprint-supplied equipment therein, or any portion thereof, by virtue of this Agreement, without the prior written consent of Sprint, which shall not be unreasonably withheld. 12. NOTICES. Any notices or communications required or desired to be given in connection with this Agreement shall be in writing and shall be delivered to the applicable Party by hand or by U.S. Certified Mail, return receipt requested, addressed as follows: Sprint: Sprint Communications Company L.P. 9350 Metcalf Avenue Overland Park, KS 66212 Attn: Network Real Estate Acquisition & Administration With a copy to: Sprint Communications Company L.P. 8140 Ward Parkway Kansas City, MO 64114 Attn: General Counsel Customer: - ------------------------------------------------------------------------------ -- Bridge F-3 January 26, 1996 Amendment 3 Any notice given under this Agreement shall be effective upon receipt of notice by the other Party. Either Party may change the above address by written notice to the other Party as provided above. 13. WARRANTIES. THE PARTIES DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE POP SITE(S) AS LISTED ON EXHIBIT A, ANY EQUIPMENT PLACED THEREIN AND OTHER SERVICES, MATERIALS AND EQUIPMENT PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 14. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS OR CLIENTS, LOSS OF GOODWILL OR LOSS OF PROFITS, ARISING IN ANY MANNER FROM THIS AGREEMENT AND THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER. FURTHERMORE, IN NO EVENT WILL SPRINT BE LIABLE TO CUSTOMER FOR ANY DAMAGES, DIRECT OR INDIRECT, TO CUSTOMER SUPPLIED EQUIPMENT ARISING OUT OF CUSTOMER'S USE OF THE POP SITE(S) LISTED ON EXHIBIT A OR THE SERVICES PROVIDED HEREUNDER, UNLESS SUCH DAMAGES ARE THE RESULT OF SPRINT'S NEGLIGENCE OR WILLFUL MISCONDUCT. SPRINT SHALL TAKE REASONABLE PRECAUTIONS TO PROVIDE A SECURE ENVIRONMENT FOR CUSTOMER SUPPLIED EQUIPMENT. 15. INDEMNIFICATION. 15.1 Customer shall indemnify, defend and hold harmless Sprint, its directors, officers, employees, trade contractors, suppliers, successors and assigns from any loss, damage, cost of defense (including reasonable attorneys' fees and court costs), and injuries, including death to any person, arising out of this Agreement (including any breach hereof by Customer) to the extent caused by the negligence or willful misconduct of Customer, its agents or employees. - ------------------------------------------------------------------------------ -- Bridge F-4 January 26, 1996 Amendment 3 15.2 Sprint shall indemnify, defend and hold harmless Customer, its directors, officers, employees, trade contractors, suppliers, successors and assigns from any loss, damage, cost of defense (including reasonable attorneys' fees and court costs), and injuries, including death to any person, arising out of this Agreement (including any breach hereof by Sprint) to the extent caused by the negligence or willful misconduct of Sprint, its agents, or employees. 16. TERMINATION OF SERVICES/FACILITIES: COMPLIANCE. 16.1 Sprint may limit the use of the Equipment Rack Space or any portion thereof by Customer hereunder when necessary because of conditions beyond its control as set forth in Paragraph 23. In addition, Sprint reserves the right at all times during the Term to suspend any and all services and/or facilities to be provided hereunder, including, without limitation to furnishing of electrical power, and remove, change or otherwise terminate the operation of Customer-supplied equipment installed in the Equipment Rack Space without notice, if Sprint deems, in its sole discretion, that such action is necessary to protect the public or Sprint personnel, agents, and Sprint facilities or services from damages or injury of any kind. Sprint may also effect such action after notice to Customer in accordance with Paragraph 20 hereof. Where possible, Sprint will notify Customer promptly of such action and work in cooperation with Customer to effect such remedies so as to permit the Customer-supplied equipment to be returned to operation in an acceptable manner. All Customer-supplied equipment installed in the Equipment Rack Space shall comply with all applicable laws, regulations and standards, including, without limitation, those standards established by Sprint, and shall be maintained by Customer in a manner so as to ensure continued compliance therewith and so as to avoid hazard or damage to Sprint facilities or injury to Sprint employees, agents and suppliers or to the public. In the case where additional protection facilities are required, the same shall be provided by Customer, at Customer's sole expense. Sprint shall maintain the environmental parameters of the Equipment Rack Space within customary limits for commercial operation so long as Customer maintains Customer-supplied equipment installed therein in accordance with the applicable specifications. 16.2 Either Party may terminate this Agreement at any time by giving written notice as outlined in Paragraph 12. The maximum liability to the Customer, due to termination, will be six (6) months of rental charges for each Equipment Rack Space as stated in Paragraph 2, Equipment Rack - ------------------------------------------------------------------------------ -- Bridge F-5 January 26, 1996 Amendment 3 Space, from the date of termination and any charges associated with Sprint escort during equipment removal. 17. INSURANCE. 17.1 CUSTOMER'S INSURANCE. Customer shall, at its own expense, procure and maintain throughout the Term, the following insurance from an insurance company or companies of recognized financial responsibility: (i) Comprehensive General Liability insurance, including Contractual Liability, insuring against liability for Personal Injury or death, Property Damage or other loss in amount of not less than $5,000,000 Combined Single Limit with respect to any occurrence, and (ii) Comprehensive Automobile Liability insurance insuring the ownership, maintenance or use of owned, non-owned or hired automobiles in an amount not less than $1,000,000 Combined Single Limit for Bodily Injury or Property Damage for any one accident, (iii) Worker's Compensation insurance, including Employer's Liability with limits of not less than $100,000 per accident, in compliance with any Worker's Compensation or similar statute in the State where any work is performed. The insurance specified in subparagraphs i and ii shall name Sprint as Additional Insured. Customer shall deliver to Sprint, prior to and as a condition of its use of the Equipment Rack Space, a Certificate of Insurance evidencing all of the above insurance requirements and shall indicate that Sprint shall be notified not less than thirty (30) days prior to any cancellation or material change in any coverage. In no event shall the limits of said policies be considered as limiting the liability of Customer under this Agreement. Customer may not enter Sprint's POP locations if the provisions of this paragraph have not been met. 18. GOVERNING LAW. This Agreement shall be constructed under and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of Kansas. 19. ENTIRE AGREEMENT. This Agreement supersedes and replaces any prior agreements, understanding or arrangements, whether oral or written, heretofore made between the Parties and relating to the subject matter hereof. This Agreement shall not be modified, changed, altered or amended except by an express written agreement signed by duly authorized representatives of both of the Parties hereto. 20. DEFAULT. In addition to any right of termination provided for elsewhere herein, the non-defaulting Party hereto may terminate this Agreement upon the occurrence of any of the following events which shall constitute a default hereunder: - ------------------------------------------------------------------------------ -- Bridge F-6 January 26, 1996 Amendment 3 (a) Material breach of this Agreement after notice of such breach and failure of the breaching Party to cure such breach within thirty (30) days of receipt of such notice; (b) A final determination by any governmental entity having jurisdiction over the facilities and/or services provided under this Agreement that the relationship of Sprint and Customer and/or the facilities and/or services provided hereunder are contrary to then existing laws; or (c) The filing of bankruptcy by either Party under any federal, state or municipal bankruptcy or insolvency act, or the appointment of a receiver or any act or action constituting a general assignment by either Party of its properties and interest for the benefit of its creditors. Upon the occurrence of a default by either Party, the other Party may exercise one or more of the following remedies: (i) terminate this Agreement as aforesaid; and/or (ii) exercise any other rights or remedies which may be available at law or in equity. Upon the occurrence of a default, the prevailing Party shall have all reasonable expenses (including court costs and reasonable attorneys' fees) paid by the other Party. 21. PAYMENTS. All charges incurred by Customer hereunder will be invoiced monthly by Sprint. Total Customer recurring and non-recurring Equipment Rack Space lease charges for the Term of this Agreement are shown on Exhibit A and are based upon the rates set forth in Paragraph 2, Equipment Rack Space, and the POP site(s) and quantities of Equipment Rack Space(s) as shown on Exhibit A hereof. Escort charges will be charged and invoiced monthly in accordance with the terms set forth in Paragraph 7 herein. All amounts stated on each invoice shall be due and payable within thirty (30) days of receipt of said invoice. The charges for service provided hereunder are exclusive of any applicable sales, use, excise and like taxes which will be separately stated and included on each applicable invoice. All charges for services provided hereunder that remain unpaid for a period of 10 days or more after written notice thereof, shall be subject to interest thereon at a rate of the lesser of 18% per annum or the maximum rate allowable by applicable law. 22. RESPONSE TIME. In the performance of its obligations hereunder, Sprint shall endeavor to respond to a Customer request for escort service hereunder within (i) one (1) hour when notified by Customer from 8:00 a.m. - 5:00 p.m. on business days and when such request pertains to a manned POP site, (ii) within three (3) hours when notified by Customer at any other time for a manned POP site, and (iii) within four (4) hours for an unmanned POP site at any time. THE ABOVE RESPONSE TIMES APPLY TO CUSTOMER EMERGENCY REPAIR SITUATIONS ONLY. THESE RESPONSE TIMES ASSUME THAT NO EMERGENCY REPAIRS ARE IN PROGRESS ON THE SPRINT NETWORK IN THIS AREA. Emergency Repairs on the Sprint network will take precedence over escort services which may cause lengthening of the response times. For routine maintenance, 72 hours notice is required. Route maintenance will only - ------------------------------------------------------------------------------ -- Bridge F-7 January 26, 1996 Amendment 3 be allowed between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday, with holidays excluded. Service affecting routine maintenance may be accomplished outside of the normal routine maintenance window, but requires 120 hour advance notification. When escort service is provided by Sprint, both the Sprint representative and Customer representative will sign a CPE Repair/Vendor Escort Record form confirming the location, time, and date the escort service took place. 23. INABILITY TO PERFORM. Neither Party shall be responsible for delays in the performance of its obligations hereunder caused by events beyond its reasonable control.