NETWORK SERVICES AGREEMENT

 

This NETWORK SERVICES AGREEMENT (the "AGREEMENT") is effective as of 12:01 A.M. _________, 2000 (the "EFFECTIVE DATE"), between PROVIDER , a ________________ corporation ("PROVIDER"), and CUSTOMER Information Systems, Inc., a ________________ corporation ("CUSTOMER").

 

RECITALS

 

A.                  CUSTOMER is engaged in the business of collecting and distributing various financial, news and other data.

B.                  PROVIDER is engaged in the business of providing Internet Protocol backbone da [portion deleted - included in fully licensed version] ces.

C.                 PROVIDER and certain of its subsidiaries have acquired from CUSTOMER and certain of its subsidiaries certain assets relating to the provision of Internet Protocol backbone and [portion deleted - included in fully licensed version]ansport services, and may in the future acquire additional such assets from CUSTOMER and certain of its subsidiaries, all pursuant to a Master Establishment and Transition [portion deleted - included in fully licensed version]nt between PROVIDER' corporate parent, PROVIDER , a ________________ corporation, and CUSTOMER, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION AGREEMENT").

D.                 It is an obligation of the parties under the Master Establish [portion deleted - included in fully licensed version]is Network Services Agreement to be entered into between PROVIDER [portion deleted - included in fully licensed version]OVIDER shall provide Internet Protocol backbone and other data transport services to CUSTOMER.

E.                  Together with this Agreement, the parties hereto are entering into a Technical Services Agreement of even date herewith (the "TECHNICAL SERVICES AGREE [portion deleted - included in fully licensed version]strative Services Agreement of even date herewith (the "Administrative Services Agreement"), providing for the provision of certain services to PROVIDER by CUSTOMER. Certain subsidiaries of PROVIDER and certain subsidiaries of CUSTOMER are enteri [portion deleted - included in fully licensed version]nd may in the future enter into, Local Transfer Agreements, Local Network Services Agreements (the "Local Network Services Agreements"), Equipment Collocation Permits (the "Equipment Collocatio [portion deleted - included in fully licensed version]ministrative Services Agreements.

 

NOW, THEREFORE, in consideration of the premises, and the mutual covenants contained herein and of oth [portion deleted - included in fully licensed version]and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1.1.               This Agreement shall consist of this Network Services Agreement by and between PROVIDER and  CUSTOMER, including all addenda to this Agreement entered into in the manner set forth herein (each an "ADDENDUM" and collect [portion deleted - included in fully licensed version]e "ADDENDA"). This Agreement shall be interpreted wherever possible to avoid conflicts between the Sections hereof and the Attachments, provided that if such a conflict sh [portion deleted - included in fully licensed version]ise, 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 determi [portion deleted - included in fully licensed version] by submitting a proposed outline or contents of such Addendum to the other party. Each party shall appoint a primary contact and a secondary conta [portion deleted - included in fully licensed version] 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 conta [portion deleted - included in fully licensed version] parties shall work together in good fai [portion deleted - included in fully licensed version]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 b [portion deleted - included in fully licensed version] 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 st [portion deleted - included in fully licensed version]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 limitatio [portion deleted - included in fully licensed version]ional definitions are provided in Schedule 3.1 of this Agreement. Capitalized terms not otherwise defined have the meanings assigned to such terms in the Master Establishment and Transition Agreement.

 

1.3.1.      "ADDITIONAL NETWORK FACILITIES" means any assets and contracts of PROVIDER for the provision of Internet Protocol backbone and other data transport services other than the Ac [portion deleted - included in fully licensed version]rk Facilities.

 

1.3.2.      "AFFILIATE" has the meaning set forth [portion deleted - included in fully licensed version]ions promulgated under the Securities Exchange Act of 1934, as amended.

 

1.3.3.       "AGREEMENT YEAR" means a period of 12 months beginning o [portion deleted - included in fully licensed version] subsequent anniversary thereof.

 

1.3.4.      "AMERICAS" means North America, Central America and South America, including the Caribbean, but excluding the United States.

 

1.3.5.      [portion deleted - included in fully licensed version]

 

1.3.6.       CUSTOMER" means CUSTOMER Information Systems, Inc., a ________________ corporation, and its successors and assigns.

 

1.3.7.      "CUSTOMER SUBSIDIARIES" has the meaning assigned to the term "Seller S [portion deleted - included in fully licensed version]er Establishment and Transition Agreement.

1.3.8.      "CONFIDENTIAL INFORMATION" means all information concerning the business of CUSTOMER, PROVIDER or any third party doing business with either of them that may be obtained from any source (i) by PROVIDER by virtue of its performance under this Agreement or (ii) by CUSTOMER by virtue of its us [portion deleted - included in fully licensed version]nformation shall also include the terms of this Agreement (and negotiations and proposals from one party to the other related directly thereto), network designs and d [portion deleted - included in fully licensed version]ms, pricing, methods, processes, finan [portion deleted - included in fully licensed version]are, 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 right [portion deleted - included in fully licensed version]o 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 withou [portion deleted - included in fully licensed version]and without breach of this Agreement.

 

1.3.9.      "DISTRIBUTOR COUNTRY" means any country in which the prod [portion deleted - included in fully licensed version]ices of CUSTOMER and CUSTOMER Subsidiaries are provided through third-party distributors.

 

1.3.10.   "EFFECTIVE DATE" means the date set forth in the Preamble of this Agreement.

 

1.3.11.   "EUROPE" means Austria, Belgium, Denmark, Finland, F [portion deleted - included in fully licensed version] Kingdom.

 

1.3.12.   "EVENT OF DEFAULT BY PROVIDER" has the meaning assigned to such ter [portion deleted - included in fully licensed version]is Agreement.

 

1.3.13.   "INITIAL TERM" means a period of ten consecutive Agreement Years beginning o [portion deleted - included in fully licensed version]ctive Date.

 

1.3.14.   "INSTALLATION SITE" means any facility of CUSTOMER or a CUSTOMER Subsidiary or of vendors or customers of CUSTOMER or a CUSTOMERSubsidiary at whic [portion deleted - included in fully licensed version]of the Networks is installed.

 

1.3.15.   "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 q [portion deleted - included in fully licensed version]m 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 [portion deleted - included in fully licensed version]ch trading ceases to be conducted.

 

1.3.16.   "MINIMUM ANNUAL COMMITMEN [portion deleted - included in fully licensed version] such term in Schedule 3.1 of this Agreement.

 

1.3.17.   "NETWORK" and "NETWORKS" have the meaning assigned to such terms in Sec [portion deleted - included in fully licensed version]f this Agreement.

 

1.3.18.   "REPLACED ROU [portion deleted - included in fully licensed version] term in Section 2.7 of this Agreement.

 

1.3.19.   "QUALITY OF SERVICE STANDARDS" means the standards for the performance [portion deleted - included in fully licensed version]orks contained in Schedule 2.2 hereto or an Addendum to this Agreement.

1.3.20.   "PROVIDER" means PROVIDER , a ________________ corporation, and its successors and assigns.

 

1.3.21.   "PROVIDER BACKBONE" means those facilities that are owned by, or leased to, PROVIDER providing telecommunications utili [portion deleted - included in fully licensed version]net Protocol.

 

1.3.22.   "PROVIDER PARENT" means PROVIDER , a ________________ corporation.

 

1.3.23.   "PROVIDER SUBSIDIARIES" has the meaning assigned to [portion deleted - included in fully licensed version] Subsidiaries" in the Master Establishment and Transition Agreement.

 

1.3.24.   "Securities EXCHANGE ACT" means the Securities Exchan [portion deleted - included in fully licensed version]4, as amended.

 

1.3.25.   "________________" means ________________ ,  a ________________ corporation.

 

1.3.26.   "________________ NETWORK SERVICES AGREEMENT" means the network se [portion deleted - included in fully licensed version]ent pursuant to which PROVIDER shall provide Internet Protocol backbone and other data transport services to ________________.

1.3.27.  "TRANSITION PERIOD" has the meaning assigned to such term in Section 6.3 of this Agreement.

 

THE NETWORKS AND QUALITY OF SERVICE STANDARDS

 

2.1.               PROVIDER agrees to use the Acquired Network Facilities to provide (or to cause the PROVIDER Subsidiaries to provide) to CUSTOMER and the CUSTOMER Subsidiaries the following mana [portion deleted - included in fully licensed version]t networks, including the operation, management and maintenance thereof:

 

2.1.1.      a global office-automation network, providing connectivity between the offices of CUSTOMER (the "OA NETWORK"),

2.1.2.       a global data collection network (the "COLLECTION NETWORK") and

2.1.3.      a global data distribution network (the "DISTRIBUTION NETWORK"), which shall be referred to in this Agreement collectively as the "NETWORKS" and individually as a "NETWORK." Each [portion deleted - included in fully licensed version]ed, managed and maintained by PROVIDER. PROVIDER may, but shall not be obligated to, use facilities of PROVIDER other than the Acquired Network Facilities to provide all or any part of any Network.

2.1.4.       Beginning on the first anniversary of the Effective Date and thereafter, each Network shall be operated, managed and maintained by PROVIDER according to the Quality of Service Standards [portion deleted - included in fully licensed version]y of Service Standards and shall provide CUSTOMER with monthly reports of such performance. If the Quality of Service Standards are not met with respe [portion deleted - included in fully licensed version]onth, 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 m [portion deleted - included in fully licensed version]pplicable 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 [portion deleted - included in fully licensed version] 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 CUSTOMER Subsidiary or a vendor or customer of CUSTOMER or a CUSTOMER Subsidiary or ( [portion deleted - included in fully licensed version]shall be given for a particular Installation Site for a particular month. The Quality of Service Standards shall not apply to the provision of Local Access Facilities in countries in which th [portion deleted - included in fully licensed version]cts and services of CUSTOMER and CUSTOMER Subsidiaries are provided through third-party distributors. For all purposes of this Agreement, including without limitation the determination of an Event of Default by PROVIDER, [portion deleted - included in fully licensed version] 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.

 

2.2.            PROVIDER agrees that, for the term of this Agreement, the network operat [portion deleted - included in fully licensed version] for the Networks shall be managed by CUSTOMER under the Technical Ser [portion deleted - included in fully licensed version]vided, however, that PROVIDER shall not be restricted from building, managing and operating one or more network operations for such portions of the PROVIDER Backbone or other operations [portion deleted - included in fully licensed version]hat are not used to provide the Networks to CUSTOMER.

2.3.            In providing [portion deleted - included in fully licensed version]k Facilities, PROVIDER agrees to use its best efforts to expedite the provisioning of the circuits for such Additional Network Faci [portion deleted - included in fully licensed version]those instances in which PROVIDER 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 [portion deleted - included in fully licensed version]sistent with the level of redundancy specified in the applicable Addendum.

 

2.4.            Throughout the term of this Agreement, PROVIDER shall use its reasonable best efforts to continue to meet the requests of CUSTOMER to enhance the total capacity, ge [portion deleted - included in fully licensed version]xtension and performance quality [portion deleted - included in fully licensed version]rks, 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.

 

2.5.            The parties acknowledge that PROVIDER intends to replace certain [portion deleted - included in fully licensed version]s among the Acquired Network Facilities (the "REPLACED ROUTERS") with new equipment promptly after the Effective Date. It is the intention of the parties that the Replaced Routers will be re-deployed at Installation Sites at which one or m [portion deleted - included in fully licensed version]PROVIDER agrees to manage the use of its inventory of routers in order to re-deploy the maximum number of Replaced Routers as is commercially reasonable. So long as R [portion deleted - included in fully licensed version]deployment during the 18 months following the Effective Date, PROVIDER agrees not to make any bulk purchases of additional routers without the prior written consent of CUSTOMER, which will not be unreasonably withheld. Upon the expiration of 18 months following t [portion deleted - included in fully licensed version]rties shall determine the number of Replaced Routers that the parties mutually agree are likely to be so re-deployed within the succeeding 12 months. All Replaced Routers that are not reasonably likely to be so re-deployed within such 12-month period shall be purchased from PROVIDER by CUSTOMER at a [portion deleted - included in fully licensed version] the average net book value as of the Effective Date of all routers included in the Acquired Network Facilities.

 

RATES AND CHARGES

 

3.1.               CUSTOMER shall pay PROVIDER for the Network [portion deleted - included in fully licensed version] Network Facilities and Additional Network Facilities according to the rates and charges set forth in Schedule 3.1 hereof.

 

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 e [portion deleted - included in fully licensed version]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 consolidatio [portion deleted - included in fully licensed version]h savings shall be shared between PROVIDER and CUSTOMER. Any reduction pursuant to this Section shall not affect the Minimum Annual Commitment.

 

3.3.            For any Installation Site to which PROVIDER is providing services both under this Agreement and the ________________ Network Services Agreement, the rates and charges applicable to su [portion deleted - included in fully licensed version]s Agreement shall be one-half of the rates and charges that would otherwise be applicable to such Installation Site under this Agreement.

 

STRATEGIC ADVISORY COMMITTEE

4.1.               Within 30 days after the Effective Date, PROVIDER and [portion deleted - included in fully licensed version]h appoint three senior executives to the "STRATEGIC ADVISORY COMMITTEE," and one outside consultant shall be jointly appointed by both parties. Any fees and expenses of such outside consultant incurred in connection with service on the [portion deleted - included in fully licensed version] representatives on the S [portion deleted - included in fully licensed version]upon written notice to the other party. A quorum of the Strategic Advisory Committee shall consist of four members, provided that at least two members appointed by e [portion deleted - included in fully licensed version]. The Chair of the Strategic Advisory Committee shall be designated by CUSTOMER from among the seven members of the Committee.

4.2.            The mission of the Strategic Advisory Committee shall be to review the perf [portion deleted - included in fully licensed version]etworks, to serve as forum for the consideration and discussion of issues raised by either PROVIDER or CUSTOMER with respect to the Networks, and to discuss issues related to the future d [portion deleted - included in fully licensed version]ansport and Internet Protocol backbone operations of PROVIDER in the context of the relationship of PROVIDER and CUSTOMER.

4.3.            The Strategic Advisory Committee shall meet with reasonable frequency, at the call of the Chair.

4.4.            The Strategic Advisory Committee shall have reasonable access to the C [portion deleted - included in fully licensed version] Board of Directors of PROVIDER to raise areas of concern to the Committee under this Agreement.

4.5.            PROVIDER agrees to use its commercially reasonable best efforts to compl [portion deleted - included in fully licensed version]recommendations of the Strategic Advisory Committee regarding performance issues arising under this Agreement.

 

  1. INVOICES

 

5.1.               The amounts due to PROVIDER from CUSTOMER for the installa [portion deleted - included in fully licensed version]ct of a bona fide dispute shall be payable by CUSTOMER in United States 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 o [portion deleted - included in fully licensed version]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 [portion deleted - included in fully licensed version]OVIDER, have one or more Installation Sites removed from the Networks. Each monthly invoice from PROVIDER 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 [portion deleted - included in fully licensed version]ss Facilities connecting the Acquired Network Facilities to such Installation Site, effective as of such time as PROVIDER is no longer required to pay such costs [portion deleted - included in fully licensed version] the amounts set forth on Schedule 5.2 attached hereto, 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 connection speed at such Installation Site, eff [portion deleted - included in fully licensed version]

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 const [portion deleted - included in fully licensed version] against or upon the Networks. In the alternative, CUSTOMER shall provide PROVIDER with a certificate evidencing [portion deleted - included in fully licensed version]MER's exemption from payment of or liability for su [portion deleted - included in fully licensed version] other taxes, charges or levies, including any ad valorem, income, franchise, privilege or occupation taxes of PROVIDER shall be paid by PROVIDER.

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 t [portion deleted - included in fully licensed version]n of a billing dispute shall be credited promptly to CUSTOMER's account. Any amount to which PR [portion deleted - included in fully licensed version]entitled as a result of the resolution of a billing dispute shall be paid promptly to PROVIDER.

5.5.            Against the amounts owed by CUSTOMER to PR [portion deleted - included in fully licensed version]this Agreement, CUSTOMER shall have the right to offset any amounts owed by PROVIDER to CUSTOMER under this Agreement, the [portion deleted - included in fully licensed version]ervices Agreement, or otherwise, including without limitation any amounts paid by CUSTOMER on behalf of PROVIDER under guarantees by CUSTOMER of obligations of PROVIDER.

VI            TERM AND EXTENSIONS

 

6.1.               This Agreement shall commence on the Effective Date and sh [portion deleted - included in fully licensed version]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 CUSTOM [portion deleted - included in fully licensed version]e additional five-year period by giving PROVIDER written notice not less than one year before the scheduled expiration of the Initial Term.

6.3.            Upon the termination of this Agreem [portion deleted - included in fully licensed version]rdance with its scheduled expiration or by CUSTOMER pursuant to Section 7, PROVIDER 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 dat [portion deleted - included in fully licensed version]nation (the "TRANSITION PERI [portion deleted - included in fully licensed version]ansition Period, CUSTOMER shall pay PROVIDER 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 o [portion deleted - included in fully licensed version]r the Transition Period, PROVIDER will provide the Networks at PROVIDER' then current list rates. PROVIDER and its successor will cooperate with CUSTOMER until CUSTOMER has completely migrated to another provider.

 

VII           TERMINATION BY CUSTOMER

 

7.1.               An "EVENT OF DEFAULT BY PROVIDER" shall be dee [portion deleted - included in fully licensed version]OVIDER has failed to a material degree to perform or comply with or has violated to a material degree any material representation, warranty, term, condition or obligation of PROVIDER under this Agreement, and PROVIDER has [portion deleted - included in fully licensed version]e such failure or violat [portion deleted - included in fully licensed version]s after receiving notice thereof from CUSTOMER; or (b) PROVIDER becomes the subject of a voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, mak [portion deleted - included in fully licensed version]or the benefit of creditors, or admits in writing its inability to pay debts when due; or (c) an Event of Default by PROVIDER occurs under the ________________ Network [portion deleted - included in fully licensed version]nt.

7.2.               CUSTOMER shall have the right to terminate this Agreement, with no liability to PROVIDER other than for charges (less any applicable credits) for the Networks provided prior to such termination, if: (a) CUSTOMER [portion deleted - included in fully licensed version]h 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 PROVI [portion deleted - included in fully licensed version]s.

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, PROVIDER shall be de [portion deleted - included in fully licensed version] such failure within 60 days if the Qu [portion deleted - included in fully licensed version] 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 mo [portion deleted - included in fully licensed version]one or more months may, but does not necessarily, constitute a failure by PROVIDER 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 PROVID [portion deleted - included in fully licensed version]s 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 PROVIDER under this Section, the Quality of Service Standards applicabl [portion deleted - included in fully licensed version]nstallation Site in any month shall be deemed to h [portion deleted - included in fully licensed version]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 [portion deleted - included in fully licensed version]with respect to such Installation Site for such month.

 

VIII         TERMINATION BY PROVIDER

8.1.               PROVIDER 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 pa [portion deleted - included in fully licensed version]VIDER has provided CUS [portion deleted - included in fully licensed version]h written notice thereof, provided that CUSTOMER shall have a further 30 days from the time it receives such notice from PROVIDER of nonpayment to cure any [portion deleted - included in fully licensed version]IDER 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, [portion deleted - included in fully licensed version]has failed to cure such failure or violation within 60 days after receiving notice thereof from PROVIDER; (c) CUSTOMER becomes the subject of a voluntary or involuntary bankr [portion deleted - included in fully licensed version]anization or liquidation proceeding, makes an assignment for the benefit of creditors, or admits in writing its inability to pay debts when due; or (d) PROVIDER becomes entitled to terminate the ________________ Network Services Agreement pursu [portion deleted - included in fully licensed version]rms thereof.

 

8.2.            Notwithstanding the provisions of Section 8.1(b) above, PROVIDER shall not have the right to [portion deleted - included in fully licensed version]te this Agreement under Section 8.1(b) solely for a failure by CUSTOMER to perform or comply with, a [portion deleted - included in fully licensed version]CUSTOMER of, the obligations of CUSTOMER under Section 15 (Confidentiality) of this Agreement, without prejudice, however, to such rights as PROVIDER may h [portion deleted - included in fully licensed version]ant to such Section and to such rights and remedies to which PROVIDER may be entitled, at law or in equity, as the result of an actual or threatened breach by CUSTOMER of such Section.

 

IX            ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES

 

9.1                 Upon the installation of Additional Network Facilities at any Installation Site, PROVIDER shall conduct appropriate tests to establish that such Additional Network Facilities perform in accordance with [portion deleted - included in fully licensed version] 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 t [portion deleted - included in fully licensed version]k Facilities are performing in accordance with the Acceptance Criteria, CUSTOMER shall be deemed to accept the Addition [portion deleted - included in fully licensed version]ork Facilities at the Installation Site immediately.

9.2              If PROVIDER' tests establish that newly ins [portion deleted - included in fully licensed version]onal Network Facilities at the Installation Site do not perform in accordance with the mutually agreed upon Acceptance Criteria, then PROVIDER shall immediately and diligently exert its best efforts to bring the Additional Network Facilities at such Installation Site into compliance. PR [portion deleted - included in fully licensed version] 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, PROVIDER s [portion deleted - included in fully licensed version]ppropriate tests to establish that the Networks perform in accordance with mutually agreed upon Acceptance Criteria and shall promptly inform CUSTOMER of such test results.

 

X             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 [portion deleted - included in fully licensed version]uirements to be mutually agreed upon by the parties and set forth in an Addendum hereto, including inside wiring, demarcation extension and rack mount accessories. CUST [portion deleted - included in fully licensed version]ll ensure that CUSTOMER-provide [portion deleted - included in fully licensed version]site by the scheduled installation date. If PROVIDER is required to reschedule the installation of CUSTOMER-provided equipment because it is not on-site by the scheduled installation date, CUSTOMER [portion deleted - included in fully licensed version]VIDER to redispatch installation personnel. 10.2. PROPER USE OF NETWORKS.

10.1.1.    CUSTOMER shall use any equipment provided [portion deleted - included in fully licensed version]IDER in connection with the Networks in accordance with its documentation, which documentation shall be provided by PROVIDER at no additi [portion deleted - included in fully licensed version]therwise provided herein, upon the termination of this Agreement CUSTOMER shall surrender to PROVIDER the equipment provided by PROVIDER, in good w [portion deleted - included in fully licensed version]ary wear and tear excepted.

10.1.2.    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 va [portion deleted - included in fully licensed version]s 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 PROVIDER.

10.1.3.    CUSTOMER shall neither permit nor assist others to use the Netwo [portion deleted - included in fully licensed version]urpose other than that for which they are intended, nor fai [portion deleted - included in fully licensed version]itable environment specified by PROVIDER in the applicable schedule, nor alter, tamper with, adjust or repair the Networks. Any such alteration, tampering, adjustment or repair by [portion deleted - included in fully licensed version]ll relieve PROVIDER from any liability or obligation hereunder (including any warranty or indemnity obligation) relating to the affected Network, and CUSTOMER [portion deleted - included in fully licensed version]PROVIDER for any documented direct costs incurred by PROVIDER as a result of such actions.

10.2.          ABUSE OR FRAUDULENT USE OF NETWORKS. [portion deleted - included in fully licensed version]ER 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, al [portion deleted - included in fully licensed version]roying any information of another party by any fraudulent means or device, or attempting to do so; or 7 (c) using the Networks so as to interfere with the use of the PROVIDER netw [portion deleted - included in fully licensed version]ER 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 no [portion deleted - included in fully licensed version]standing the provisions of Section 8, upon the breach of this Section 10.3 by CUSTOMER, PROVIDER shall have the right to terminate this Agreement immediately upon written notice to CUSTOMER.

10.3.          COVENANT NOT TO COMPETE.

10.3.1.    As an inducement to PROVIDER to enter into this Agreement, which CUSTOMER acknowledges is of benefit to it, and in consideration of the promises and representations of PROVIDER under this Agre [portion deleted - included in fully licensed version]s 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 [portion deleted - included in fully licensed version] 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 PROVIDER under this Agreement; provided, however, that (i) CU [portion deleted - included in fully licensed version]CUSTOMER Subsidiaries 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 [portion deleted - included in fully licensed version]OVIDER Subsidiaries pursuant to the Master Establishment and Transition Agreemen [portion deleted - included in fully licensed version]e free to make passive investments in securities of comp [portion deleted - included in fully licensed version] provide network services in competition with PROVIDER which, in the case of any such security, does not constitute more than ten perce [portion deleted - included in fully licensed version]otal outstanding amount of such security.