CONFIDENTIAL TREATMENT REQUESTED PLACES WHERE INFORMATION HAS BEEN REDACTED HAVE BEEN

 

Exhibit 10.1

 

CONFIDENTIAL TREATMENT REQUESTED

 

PLACES WHERE INFORMATION HAS BEEN REDACTED HAVE BEEN

 

MARKED WITH (*******)

 

AGREEMENT

 

between

 

Time Warner Telecom

 

and

 

AT&T Corp.

 

Effective Date: January 1, 2001

 

[Composite conformed Copy incorporating amendments 1 through 6]

 

AT&T and Time Warner Telecom Proprietary

Subject To Non-Disclosure Agreement

 

TABLE OF CONTENTS

 

 

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Page i

 

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Page ii

LIST OF APPENDIXES

 

 

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Page iii

AGREEMENT

 

This Agreement (“Agreement”) is entered into as of January 1, 2001 (“Effective Date”), by and between Time Warner Telecom General Partnership, a Delaware partnership, having an office at 10475 Park Meadows Drive, Littleton, Colorado 80124 (“TWTC”), and AT&T Corp., a New York corporation, having an office at 295 North Maple Avenue, Basking Ridge, New Jersey 07920, on behalf of itself and each of its subsidiaries (“AT&T”) (each of which sometimes is referred to as the “Party” and both of which collectively are referred to as the “Parties”).

 

Whereas , TWTC is in the business of providing telecommunications services in certain metropolitan statistical areas within the United States; and

 

Whereas , the Parties entered into an Agreement effective as of September 15, 1995 (as amended by that certain Amendment One to Agreement effective as of June 1, 1997, the “Prior Agreement”) for the purchase of telecommunications services, including services similar to the Services that are the subject of the instant Agreement; and

 

Whereas, the Parties had disputes (the “Disputes”) under the Prior Agreement; and

 

Whereas, the Parties wish to fully and finally settle all Disputes under the Prior Agreement and to continue their relationship under the terms and conditions contained herein;

 

Now, therefore , in consideration of the foregoing premises and the mutual covenants of this Agreement, the sufficiency and receipt of which are hereby acknowledged, TWTC and AT&T agree as follows:

 

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PART I: GENERAL

 

1. Introduction

 

This Agreement sets forth the terms, conditions, and pricing principles under which TWTC agrees to offer, and AT&T agrees to purchase, certain telecommunications services ordered by AT&T in the Selected MSAs.

 

2. Term of Agreement

 

2.A When this Sixth Amendment is executed by authorized representatives of TWTC and AT&T, this Agreement will be effective as of the Effective Date ( e.g., January 1, 2001), and will remain in effect for a term of eight (8) years from the Effective Date ( “Term” ), unless terminated at an earlier date or unless renewed or extended, as provided in this Agreement.

 

2.B No later than six (6) months prior to the end of the Term, the Parties agree to commence negotiations diligently and in good faith to renew this Agreement under mutually acceptable terms, conditions and pricing. In the event the Parties fail to agree upon renewal terms and the Term of this Agreement expires, the Agreement will continue in effect on a month-to-month basis until such time as the Parties reach agreement or either Party terminates for convenience upon not less than thirty (30) days’ written notice, at which time the appropriate Transition Period set out in Section 21.B shall commence. Pricing during any month-to-month term shall be at the then current rates under this Agreement. Pricing during any Transition Period shall be in accordance with Section 21.B. During any month-to-month or Transition Period, AT&T shall not be subject to any revenue commitment of any kind.

 

2.C Notwithstanding Section 2.A and Section 2.B, if AT&T’s Eligible Services (as defined in Section 30.B) meet or exceed the Total Cumulative Revenue Commitment (as defined in Section 30.A) at any time prior to the end of the Term, the Total Cumulative Revenue Commitment will automatically terminate. Upon termination of the Total Cumulative Revenue Commitment, subject to Section 2.B, the Agreement will continue in effect on a month-to-month basis.

 

3. Defined Terms

 

3.A For purposes of this Agreement, words and phrases spelled with initial capital letters (other than proper names and beginning of sentences) shall have the defined meanings set forth in the applicable provisions of this Agreement.

 

3.B For convenience of the reader, an index specifying the location of the definition of defined terms in this Agreement is contained in Appendix A. Appendix A may not contain a complete list of all defined terms herein.

 

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4. Areas Served

 

4.A The United States Census Bureau divides the United States into certain metropolitan statistical areas. For purposes of this Agreement and unless otherwise agreed by the parties, “MSAs” will refer to such metropolitan statistical areas as drawn or described by the Census Bureau on the Effective Date of this Agreement. TWTC shall offer Services to AT&T under the terms, conditions and pricing principles of this Agreement in every MSA in which TWTC offers services of the types that are the subject of this Agreement. The parties shall execute an “MSA Schedule” substantially in the form of Appendix B to evidence each of the MSAs in which TWTC shall offer Services and provide details specific to that MSA. Each MSA identified in an MSA Schedule shall be deemed a “Selected MSA.”

 

4.B Notwithstanding Section 4.A of this Agreement, it is agreed that TWTC is currently offering services to AT&T in the following Selected MSAs: Austin, Texas; Charlotte, North Carolina; Cincinnati, Ohio; Columbus, Ohio; Greensboro, North Carolina; Honolulu, Hawaii; Houston, Texas; Indianapolis, Indiana; Memphis, Tennessee; Milwaukee, Wisconsin; New York City, New York; Orlando, Florida; Raleigh-Durham, North Carolina; Rochester, New York; and San Diego, California (collectively, the “Current Selected MSAs”). In addition, simultaneously with the execution of this Agreement, AT&T and TWTC shall execute MSA Schedules for each of the following MSAs: Albany, New York; Binghamton, New York; Dallas, Texas; Fayetteville, North Carolina; Jersey City, New Jersey; San Antonio, Texas; Tampa, Florida; Los Angeles/Orange County, California; Dayton, Ohio; Chicago, Illinois; Minneapolis, Minnesota; Columbia, South Carolina; Atlanta, Georgia; and Denver, Colorado.

 

4.C If the Parties agree that TWTC will offer Services in any Selected MSA through an Affiliate or other entity, such Affiliate or entity “Local Entity,” as defined below in this Section 4.C, will also sign the MSA Schedule for such Selected MSA and will agree to abide by the terms of this Agreement. With respect to each Selected MSA, the applicable Local Entity shall be jointly and severally liable with TWTC for the performance of all obligations and duties to AT&T under this Agreement and the respective MSA Schedule. To the extent that a Local Entity is currently providing AT&T with Services in a Current Selected MSA, such Local Entity shall continue to provide services to AT&T and the applicable Local Entity shall be jointly and severally liable with TWTC for the performance of all obligations and duties to AT&T under this Agreement in the applicable Selected MSA. Definition of Local Entity/ies: TWTC owns limited partnerships or other entities that own and/or operate telecommunications facilities in various metropolitan areas. Each of these “Local Entities” is a partnership, corporation, or other entity for which TWTC or TWTC’s wholly-owned subsidiary is the general partner, or is under common control by TWTC and its wholly-owned subsidiary, and each Local Entity is authorized to provide the Services in a particular geographic area.

 

4.D Unless otherwise provided in this Agreement or in an MSA Schedule, all provisions of this Agreement shall take effect immediately upon the Effective Date. Any terms, conditions or pricing principles that are unique to a Selected MSA shall be set forth in the applicable MSA Schedule.

 

4.E Buildings within each Selected MSA shall be deemed “On-Net” or “Off-Net” in accordance with this Section 4.E.

 

4.E.i A building shall be deemed On-Net if: (1) it has been identified as On-Net by TWTC; (2) TWTC has at any time provided a Service to any part of the building under

 

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this Agreement using Type I Facilities; or (3) TWTC has at any time provided to any part of the building a telecommunications service under any other agreement or tariff with AT&T or any other person using Type I Facilities.

 

4.E.ii Buildings that have not yet become On-Net pursuant to Section 4.E.i shall be deemed “Off-Net.”

 

4.F TWTC shall provide AT&T with complete and accurate list of “On-Net” buildings for each Selected MSA no less frequently than monthly.

 

PART II: SERVICES AND PRICES

 

5. Services

 

5.A With respect to each Selected MSA, TWTC shall offer to AT&T certain telecommunications services as described below (“Services”) to any Served Premises in any On-Net building, subject to the applicable terms, conditions and pricing principles of this Agreement. “Served Premises” means any premises to which AT&T orders Service under this Agreement from TWTC. Served Premises may include without limitation an AT&T point of presence or other network location (“AT&T Serving Office”), or another location that is not an AT&T Serving Office (“Secondary Location”). The premises of AT&T’s customers (“Customer Premises”) are one type of Secondary Location.

 

5.B Additionally, subject to the requirements set forth in Section 8.D, TWTC may offer to AT&T Services in any Off-Net building(s) in a Selected MSA, under the terms, conditions and pricing principles of this Agreement (including the applicable MSA Schedule) or such other terms, conditions and pricing principles as the parties may agree.

 

5.C The Services shall include:

 

5.C.i “ Dedicated Service, ” meaning a service providing a two-point digital channel connecting any location within an Exchange Area to any other location within any Exchange Area in the same Selected MSA. (Such locations may include, but are not limited to, all AT&T Serving Offices and Customer Premises, as well as the premises of any other supplier or user of telecommunications services.) The service characteristics and technical specifications of Dedicated Service are set forth in Appendix C-1. For purposes of this Agreement, “Exchange Area” means the geographic area corresponding to the area served by a local serving office (“LSO”) of the applicable incumbent local exchange company (“ILEC”).

 

5.C.ii “ Switched Access Service, ” meaning a service that provides the switched connection and transport of all types of calls, including but not limited to, international, interLATA and intraLATA calls between an AT&T Serving Office and the point of call origination or termination. The service characteristics and technical specifications of Switched Access Service are set forth in Appendix C-2.

 

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6. Right to Resell

 

AT&T shall have the right to resell or repackage under an AT&T brand name, or under such other name or mark as AT&T may elect, any Service provided to AT&T by TWTC under this Agreement.

 

7. Pricing Principles

 

The pricing principles by which TWTC will establish rates and charges for the Services offered to AT&T pursuant to this Agreement are set forth in the following Appendixes:

 

Appendix D     Dedicated Pricing Principles; and

 

Appendix E     Switched Pricing Principles.

 

PART III: Network Deployment, Ordering, Provisioning, Maintenance, and Billing

 

8. Network Requirements

 

8.A In each Selected MSA, TWTC agrees to use commercially reasonable efforts to deploy network Facilities and infrastructure for use by AT&T (“Network”) in accordance with this Section 8.A.

 

8.A.i Except for equipment consented to in writing by AT&T, such consent not to be unreasonably conditioned, withheld or delayed, all equipment within and between each Supplier Node shall incorporate SONET platform technology deployed in fiber-based self-healing rings and/or other technology that provides comparable (or better) service. “Supplier Node” means any location on the TWTC’s Network that contains equipment or apparatus operated and controlled by TWTC or a Local Entity. The parties agree to meet no less often than annually to discuss and negotiate in good faith the use by TWTC of new technologies and platforms in TWTC’s Network.

 

8.A.ii TWTC shall collocate in, and interconnect with, each ILEC LSO mutually agreed to by TWTC and AT&T.

 

8.A.iii Except for tandem switching arrangements consented to by AT&T, TWTC’s Network shall not permit traffic of any other telecommunications carrier to be routed through any AT&T Serving Office, nor shall it permit AT&T’s traffic to be routed through the serving office of any other telecommunications carrier.

 

8.A.iv Except for class-5 switching functionality, Digital Access Cross-Connects (“DACS”), dual Central Offices, and any technology consented to in writing by AT&T, such consent not to be unreasonably conditioned, withheld or delayed, TWTC’s systems shall contain one hundred percent (100%) redundancy in electronics and distribution ring transmission paths, so that in the event of a failure, Services are

 

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interrupted only for the time required to activate such redundant capacity. For OC-n services, certain cards within the redundant systems will not be one-for-one protected unless AT&T specifications specifically require such protection, and further, unless AT&T pays for such one-for-one protection. Redundant systems shall have sufficient capacity to transport all existing Services provided to AT&T.

 

8.A.v TWTC’s systems shall incorporate automatic restoration for all network elements that the then current, state-of-the-art technology supports.

 

8.A.vi With respect to each building having a Supplier Node, if the applicable ILEC then provides or has ever provided a dual-entrance facility arrangement to such building, then TWTC will make all commercially reasonable efforts to ensure that its Network also provides a dual-entrance facility arrangement. The building list required under Section 4.F. shall identify all buildings where dual Entrance Facilities are currently available.

 

8.A.vii The Network shall conform in all material respects to AT&T’s inside and outside plant standards as set forth in the then-current version of each of the following AT&T technical references, a copy of which has been provided to TWTC. TWTC shall have no obligation to upgrade its Network to comply with AT&T’s most recent inside and outside plant standards so long as its Network was in compliance with the version available at the time of installation:

 

(a) “TR-NWT-000063, Network Equipment Building System (NEBS), Generic Equipment Requirements”;

 

(b) “AT&T 900-200-210, Lightguide Cable Systems Outside Plant Standards Handbook”;

 

(c) “Redundancy & Diversity Requirements for OC-N ( i.e., 48, 12, 3…) Equipment” (AT&T internal memorandum);

 

(d) “Outside Plant Physical Diversity Criteria” (AT&T internal memorandum); and

 

(e) “AT&T 803-500-410, Grounding Practices Isolated Ground Planes Engineering and Application Information Criteria for Analog & Digital Switches.”

 

8.B TWTC shall submit to AT&T a Ready-to-Serve Package for each Selected MSA in accordance with a timetable mutually agreed to by TWTC and AT&T. Each Ready-to-Serve Package shall: (i) provide a logical and physical diagram of the design rules of the respective network that shows the interconnection between all network elements between each Supplier Node; (ii) provide the engineering rules for network growth; and (iii) describe how TWTC shall meet each of the Network requirements set forth in Section 8.A. Notwithstanding the foregoing, TWTC shall not be required to submit to AT&T a Ready-to-Serve Package for any Current Selected MSA where it has previously provided AT&T such information.

 

8.C TWTC shall submit to AT&T an updated nationwide disaster recovery plan acceptable to AT&T (“Disaster Recovery Plan”) within sixty (60) days after execution of this Agreement

 

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that covers all Selected MSAs as detailed in Section 4.B, unless otherwise agreed by the parties. At a minimum, the Disaster Recovery Plan will contain the following:

 

8.C.i Provisions for immediate notification to AT&T of the existence, location and source of any network outage resulting in 5,000 or more blocked call attempts during a period of no greater than 15 minutes within any TWTC class 5 switch.

 

8.C.ii Development of methods and procedures for: (a) providing AT&T with real-time access to information related to the status of restoration efforts; (b) dispatching mobile equipment, as needed, to the restoration site; (c) providing restoration efforts with equal priority between AT&T’s customers and TWTC’s customers, including deployment of repair personnel and access to spare parts and components; (d) escalation of maintenance problems; and (e) annual reviews of the Disaster Recovery Plan to test deployment, to ensure that all plans remain current and can be efficiently operationalized, and that identified problems are resolved in a timely manner.

 

8.D TWTC shall provide Services exclusively by means of Facilities operated and controlled by TWTC (“Type I” Facilities) or a Local Entity. “Facilities” means any equipment, cable, apparatus or other materials required to provide any Services. Notwithstanding the foregoing, with AT&T’s consent, TWTC may use Facilities operated and controlled by a third party (“Type II” Facilities) under the following circumstances:

 

8.D.i to provide a Secondary Channel Termination and Multiplexing for Dedicated Services other than Self-Healing Ring Service; provided, that the related Served Premises is within either: (a) an On-Net building for which TWTC has temporarily exhausted its facility capacity; or (b) an Off-Net building for which TWTC has firm plans to make such location an On-Net building; and provided, further, that in either case, TWTC shall notify AT&T of such circumstances as soon as reasonably practicable and shall convert such Dedicated Services from Type II Facilities to Type I Facilities as soon as reasonably feasible; or

 

8.D.ii to provide either a Service Channel for Self-Healing Ring Service or a Secondary Channel Termination and/or Multiplexing for other Dedicated Services; provided, that AT&T has consented in writing to such use, the specific Type II Facilities to be used and the third parties operating and controlling them; or

 

8.D.iii to provide Services to any other Off-Net building, where the parties have agreed to use the terms, conditions and pricing principles set forth in this Agreement (including the applicable MSA Schedule) or other terms, conditions and pricing principles proposed and accepted on an Individual Case Basis in accordance with Section D.6 of Appendix D.

 

8.E If a mechanical transmission system is available to transmit ASRs or service orders from AT&T to TWTC, this vehicle will be used. If a mechanized system is used, the parties will follow any Ordering and Billing Forum standards for the use of that system. If a mechanized transmission system is not used, AT&T will transmit ASRs or service orders to TWTC via facsimile. Facsimile information will be provided to AT&T from TWTC and updated as needed. The ASR or service order will specify the term selected by AT&T for the Service requested.

 

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While this Agreement is in effect, all ASRs or service orders issued by AT&T will be subject to the terms and conditions of this Agreement.

 

8.E.i TWTC will provide a Firm Order Confirmation (“FOC”) confirming receipt of the order and targeted Service interval dates.

 

8.E.ii If TWTC is able to provide the Services set forth in the ASR or service order, TWTC will provide a Design Layout Record (“DLR”) to AT&T after receipt of a complete and accurate ASR or service order. The DLR will provide any necessary Service intervals, as well as a start of service date.

 

8.E.iii The standard installation interval for all On-Net Dedicated Transport Services is five (5) business days, except for OC-ns, Individual Case Bases (“ICBs”), or situations in which sufficient capacity does not exist, in which case TWTC will inform AT&T at or before the time it issues the FOC that sufficient capacity does not exist. TWTC may provide Service on an Individual Case Basis within a shorter interval requested by AT&T. In such cases, TWTC will charge an expedite fee as set out in Table 2.

 

8.E.iv In the event AT&T cancels an order after TWTC has received a sold notification or has provided the FOC in response to an ASR, and prior to AT&T’s acceptance of the Service ordered, AT&T will be responsible for, and will pay on demand: (a) all actually incurred non-recurring charges associated with the Order, not to exceed the quoted non-recurring charges or the non-recurring charges as stated in this Agreement, as appropriate; and (b) any AT&T POP augmentation costs associated with OC-n Services that cannot be re-deployed within one hundred and twenty (120) days.

 

In the event AT&T cancels a request to roll a POP to LSO DS3 Transport Arrangement previously scheduled by AT&T, and prior to AT&T’s acceptance of the DS3 Transport Arrangement, AT&T will be responsible for, and will pay on demand: (a) a three hundred dollar ($300) per circuit cancellation charge; and (b) any AT&T POP and/or ILEC LSO augmentation costs incurred by TWTC; provided , however , that AT&T shall not be liable for any augmentation costs that exceed the estimated augmentation costs that TWTC shall provide to AT&T no later than one hundred and twenty (120) calendar days before the date scheduled for rolling each DS3 Transport Arrangement. In addition, if TWTC utilizes or re-deploys the augmented facilities within one hundred and twenty (120) calendar days after AT&T cancels a POP to LSO DS3 Transport Arrangement, then TWTC shall provide AT&T with a credit for the costs paid by AT&T associated with the facilities that are utilized or re-deployed.

 

8.E.v As used in the non-recurring charges for time and materials table in Table 2B (AT&T Dedicated Access Services Rates), and the then current price table maintained by TWTC pursuant to Section D.1.D of the Agreement:

 

8.E.v.(a) “Technician Dispatch All Cities Except Manhattan” applies to AT&T-initiated maintenance service calls for repair of Service deficiencies to all cities

 

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except Manhattan and includes Technician Travel Time (as defined in this Section 8.E.v.(a)); provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer. “Technician Travel Time” means the travel time technician expends to reach the Served Premises for the repair of Service deficiencies, provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer. Technician Travel Time begins when the technician enters their vehicle to reach the Served Premises and ends when such technician arrives at such Served Premises.

 

8.E.v.(b) “Technician Dispatch Manhattan” applies to AT&T-initiated maintenance service calls for repair of Service deficiencies to Manhattan and includes Technician Travel Time; provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer.

 

8.E.v.(c) “Technician Time” includes the repair of Service deficiencies and applies to the initial thirty (30) minutes technician is at the Served Premises; provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer. Technician Time is a required non-recurring charge and is in addition to the Technician Dispatch All Cities Except Manhattan or the Technician Dispatch Manhattan non-recurring charge.

 

8.E.v.(d) “Technician Time Additional” includes the repair of Service deficiencies and applies to each thirty (30) minute increment of Technician Time Additional upon expiration of Technician Time; provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer. Technician Time Additional begins at the expiration of Technician Time and ends when the Service deficiencies have been corrected and Service restored or when AT&T wishes the technician to stop work, whichever is later.

 

8.E.v.(e) “Standard Materials Mark-Up Rate” applies to the materials expended in the repair of Service deficiencies; provided , that TWTC determines the cause of such Service deficiencies is a failure, malfunction, or inadequacy of AT&T’s customers or AT&T’s equipment including the inappropriate use of such equipment by AT&T or AT&T’s customer, and represents a ******* mark-up over TWTC’s actual costs for such materials.

 

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9. General Infrastructure Requirements

 

9.A In each Selected MSA, TWTC agrees to use all commercially reasonable efforts to meet each of the applicable infrastructure requirements, including but not limited to Service provisioning, Service maintenance, and TWTC’s provision of billing information to AT&T, that are set forth in the then-current version of the “AT&T-Dedicated Access Infrastructure Requirements” and the “AT&T – Switched Access Infrastructure Requirements” documents that are incorporated by reference into this Agreement, and copies of which have been provided to TWTC. In the event of a conflict between the above referenced documents and Section 8.E. above, Section 8.E. shall govern. Throughout the term of this Agreement, AT&T shall have the right, in its reasonable business judgment, to modify the above referenced documents by giving TWTC no less than thirty (30) days’ prior written notice; provided, however, that any such unilateral modification by AT&T shall be: (1) reasonable with respect to the then-current AT&T infrastructure requirements; (2) consistent with the standards established by AT&T for all competitive access vendors; and (3) have no material adverse effect on TWTC. TWTC will not be required to incur any material costs to implement changes in AT&T’s infrastructure requirements unless TWTC agrees to such changes in writing.

 

9.B Billing and payment of TWTC’s charges for Services provided under this Agreement shall be in accordance with the specifications and procedures set forth in Appendix F and the then-current version of the Infrastructure Requirements documents identified in Section 9.A.

 

10. Intentionally deleted.

 

11. Verification of Performance Capabilities

 

At the time TWTC is ready to offer Dedicated Services and Switched Access Service respectively, in a Selected MSA in accordance with the network and infrastructure requirements set forth in Sections 8 and 9, TWTC will afford AT&T the opportunity to initially evaluate TWTC’s network and service capabilities. Each party shall be responsible for its own costs and expenses associated with such evaluation. Notwithstanding the foregoing, TWTC has provided and may continue to provide Services to AT&T in the Current Selected MSAs without an initial evaluation by AT&T. TWTC shall also afford AT&T the opportunity to conduct subsequent evaluations of TWTC’s network and service capabilities at all times during the term of this Agreement, upon at least 30-days’ written notice. Evaluation of TWTC’s network and service capabilities may include, without limitation, physical evaluations and visual inspections of TWTC’s network; assessments of TWTC’s provisioning, maintenance, and billing processes and systems; and tests of TWTC’s overall service delivery capabilities. AT&T may only request such subsequent evaluation once in any given consecutive twelve (12) month period, except if TWTC’s network in that Selected MSA has experienced two or more failures, as defined in section 15.B, below, within a consecutive four (4) month period.

 

12. TWTC Activities at Served Premises

 

12.A TWTC, at its own expense, will be solely responsible for obtaining from building owners, governmental authorities, ILECs, and any other persons or entities, all rights and privileges (including, but not limited to, space and power) that are necessary for TWTC to provide the Services under this Agreement.

 

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12.B Where AT&T’s Serving Office is part of a condominium or three-dimensional conveyance arrangement under which contiguous real property is owned by one or more third parties, or if AT&T’s Serving Office is in space leased from a third party, AT&T will work cooperatively with TWTC to seek from the third party owner, lessor, or other lessees any appropriate easements, rights of way, licenses, or other rights of access needed for TWTC’s access through such third party’s real property.

 

12.C In AT&T Serving Offices, AT&T shall provide space, power, and the installation of cable in accordance with the then current Common Interface Arrangement (“CIA”) or its equivalent document between the parties. In each Customer Premises to which AT&T has ordered TWTC Services, AT&T shall provide (or cause to be provided) space and power for TWTC equipment and cable used to provide AT&T-designated brand services using Type I Facilities, but only to the extent permitted by applicable AT&T tariffs and AT&T customer contracts. Any delay or failure by AT&T to provide or cause to be provided space and power in accordance with this section shall irrefutably excuse TWTC’s delay or failure to provide Services, and the charges for such services shall not count towards or waive AT&T’s revenue commitment set out in Section 30, below.

 

12.D TWTC’s opportunity to enter and use space in the AT&T Serving Offices and in Customer Premises pursuant to Section 12.C is a nonexclusive privilege. This Agreement does not create or vest in TWTC (or in any other person or entity) any leasehold estate, easement, ownership interest, or other property right or interest of any nature in any part of the AT&T Serving Offices or Customer Premises.

 

12.E Terms and conditions applicable to TWTC’s activities in and around Served Premises (including, but not limited to, installation, maintenance, and operation of TWTC Facilities) are set forth in Appendix G.

 

12.F Notwithstanding the provisions of Section 12.A, unless otherwise directed by AT&T, TWTC shall not approach any AT&T customers regarding the provision of any Services by TWTC to such customers that currently are provided by AT&T to such customers. TWTC may approach any AT&T customers regarding the provision of other services not currently being provided by AT&T.

 

PART IV: SERVICE QUALITY

 

13. Acceptance Testing

 

Prior to delivery of each Service, TWTC shall conduct acceptance tests and afford AT&T the results. If AT&T fails to reject delivery within five (5) days, Services shall be deemed accepted. Billing for services will commence in accordance with Section F.3.B.ii, below.

 

14. Service Performance

 

14.A In providing Services and performing related functions, TWTC shall meet or exceed AT&T’s Direct Measures of Quality (“DMOQs”) as designated by AT&T, provided, however that

 

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AT&T shall have no remedy hereunder for TWTC’s failure to meet DMOQs except as set forth in Section 15.D.ii, below. The document that contains the initial set of DMOQs is referred to herein as the “CAP Performance and Quality Requirements” document, a copy of which has been provided to TWTC, and which is incorporated by reference into this Agreement.

 

14.B TWTC shall self-report its performance with respect to each DMOQ and its overall service performance in accordance with the CAP Performance and Quality Requirements except during such limited times as mutually agreed upon between the parties for business reasons, in which case TWTC shall provide such reports as soon thereafter as is reasonably possible. If TWTC fails to self report such performance in accordance with the CAP Performance and Quality Requirements, then TWTC’s performance will be rebuttably presumed to be less than satisfactory.

 

14.C TWTC’s service performance shall be evaluated in accordance with the method set forth in the CAP Performance and Quality Requirements.

 

14.D Throughout the term of this Agreement AT&T shall have the right to modify the DMOQs contained in the CAP Performance and Quality Requirements document by giving TWTC no less than thirty (30) days prior written notice; and provided , that any such modification by AT&T shall be: (i) reasonable with respect to the then-current AT&T performance requirements; and (ii) consistent with the standards established by AT&T for all competitive access vendors.

 

15. Remedies for Service Deficiencies

 

15.A TWTC will apply a delayed installation credit for any Service that is not provided by the Confirmed Due Date. The Confirmed Due Date will be the date specified on TWTC’s Firm Order Confirmation (FOC) form, or other mutually acceptable form of order acceptance.

 

15A.i The amount of the delayed installation credit will be as follows: *******.

 

15.A.ii Except as provided in Section 15.A.v, a delayed installation credit will not be applied under the following circumstances:

 

(a) installation is delayed at AT&T’s request; or

 

(b) installation is delayed at the premises where installation is scheduled to be made (1) at the request of AT&T’s customer, (2) because AT&T’s customer has not given TWTC necessary access to the premises where installation is to be made, or (3) because AT&T’s customer is not ready to accept the Service until after the confirmed due date.

 

15.A.iii The reasons stated in Section 15.A.ii (b) shall not be deemed the cause of an installation delay unless TWTC has:

 

(a) made reasonable efforts to consult with the appropriate AT&T work center (or such other contact specified by AT&T) by telephone from the premises where installation is scheduled to be made (or from a location near such premises); and

 

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(b) taken such further actions in an attempt to make installation as AT&T may direct in the course of such consultation.

 

15.A.iv If TWTC’s reasonable efforts to consult with AT&T as required under Section 15.A.iii (a) are unsuccessful, TWTC shall notify AT&T of the reason for the delay as soon as reasonably possible.

 

15.A.v Notwithstanding the provisions of Section 15.A.ii, a delayed installation credit will be applied if TWTC fails to comply with any of the requirements of Sections 15.A.iii or 15.A.iv of this Section.

 

15.A.vi The above remedies shall be AT&T’s exclusive remedies in the event of a delayed installation.

 

15.B A credit allowance will be given for any period of Service Outage as specified below. Credit allowances will be expressly indicated and deducted from AT&T’s next invoice. A Service Outage begins for purposes of this Section 15.B when AT&T reports the Service malfunction to TWTC or TWTC becomes aware of the malfunction, which ever is earlier, except as set forth below. A Service Outage ends when the affected circuit is fully operational and accepted by AT&T, unless AT&T unreasonably withholds acceptance, in which case the Service Outage will end when the affected circuit is fully operational.

 

15.B.i In the event of a single facility failure (e.g., cable cut, hardware, access node) or other Service Outage for On-Net circuits provided via a SONET ring or comparable technology with diverse paths and dual building entrance at all terminating locations, and continuing for more than fifteen (15) minutes, *******. Such Service Outage credit shall be payable when either AT&T reports the outage to TWTC or when TWTC is made aware of the outage, whichever is earlier, and the location or source of the service outage is determined to be on the TWTC network.

 

15.B.ii TWTC’s “Self-Healing Ring Access Service” (as defined in Section C-1.7) and “Switched Access Transport” (as defined in Section C-2.1.B.i) will automatically restore themselves within fifteen (15) seconds. In the event of a single facility failure (e.g., cable cut, access node, or hardware) or other Service Outage for On-Net dedicated circuits that are provided via a dedicated SONET ring or comparable technology with diverse paths and dual building entrance at all terminating locations and continuing for more than fifteen (15) seconds, *******. Such Service Outage credit shall be payable when either AT&T reports the outage to TWTC or when the TWTC is made aware of the outage, whichever is earlier, and the location or source of the Service Outage is determined to be on the TWTC network.

 

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15.B.iii DS-1, DS-3 and OC-n Dedicated Services, not subject to 15.B.i and 15.B.ii, above, provisioned entirely on TWTC’s network will be credited *******, then the credit is 1/144 of the monthly recurring charge per a 3-hour outage. These credits will only be received if: (a) both ends of such circuits are on TWTC’s network; and (b) the cause of such service outage is determined to be in TWTC’s network. No credits granted in any given month will exceed one month’s charges for the affected Service.

 

15.B.iv Out-of-service credits do not apply to Service Outages: (a) caused by AT&T or an AT&T customer; (b) due to failure of power or equipment provided by AT&T or other third parties; (c) during any period in which TWTC is not given access to the Served Premises; (d) which constitute Planned Service Outages (“Planned Service Outage” means a complete loss of transmit or receive capability occurring on TWTC’s network, caused by mutually agreed upon scheduled maintenance or planned enhancements or upgrades to either party’s network); and (e) due to any Force Majeure Event (as defined in Section 28).

 

15.B.v The above remedies shall be AT&T’s exclusive remedies in the event of a Service Outage, other than in the event of Chronic Trouble Service, as set forth in Section 15.C.

 

15.C A “Chronic Trouble Service” is a particular Service for which two (2) or more trouble tickets have been opened within a consecutive 30-day period for the same circuit and the cause of each such trouble is determined to be in TWTC’s Network and is not caused by a circumstance described in Section 15.B.iv (a) – (e), above. When