Customer Initial ______________

1 NTT America, Inc. Confidential

NTT AMERICA, INC. TERMS AND CONDITIONS
(Leased Line, Ethernet Leased Line, Frame Relay, IP-VPN, ATM, eVLAN and Ancillary Service Equipment)
1. Certain Definitions
Any terms not otherwise defined herein shall have the respective meanings set forth in
the Arcstar Service Order and Agreement. Unless otherwise specified, all cross-references herein
are to sections and articles of these Terms and Conditions. Unless otherwise defined in these terms
and conditions (Terms and Conditions or Ts and Cs), the following terms shall have the
following meanings:
Affiliate shall mean, with respect to any entity, any entity or person controlled by,
controlling, or under common control with such entity, and control shall mean the power to direct
the management and policies of an entity, whether through voting rights, contract or otherwise.
Agreement or Arcstar Service Order and Agreement shall mean the Arcstar
Service Order and Agreement (including all attachments thereto and all documents expressly
referred to therein, including, without limitation, these Terms and Conditions and all Service Orders
accepted by or on behalf of NTT America, Inc.
Authorized User shall mean a person, firm, corporation or other entity (including U.S.
Half Portion Customer) that either is authorized by the U.S. Half Portion Customer to receive or send
communications, or is directly or indirectly placed in a position by the U.S. Half Portion Customer,
either through acts or omissions, to send or receive communications over the Network. All
references to U.S. Half Portion Customer shall be deemed to include all Authorized Users of the
U.S. Half Portion Customer.
Business Hours shall mean the hours between 0900 to 1700, in the local time of the
location where the U.S. Half Portion Service originates, every day excluding Saturdays, Sundays,
and applicable national holidays (Business Days).
Customer Equipment shall mean equipment, systems, cabling and other facilities
provided by the U.S. Half Portion Customer or its Authorized Users and used in conjunction with the
Service Equipment in order to obtain or use the U.S. Half Portion Service.
Material Adverse Change shall mean a material adverse change in U.S. Half Portion
Customers creditworthiness, which shall include, but not be limited to: (a) failure of U.S. Half Portion
Customer to make full payment of charges due to NTT America, Inc. under the Agreement on or
before the applicable Due Date on three or more occasions during any period of twelve (12) months,
or U.S. Half Portion Customers failure to make such payment on or before the applicable Due Date
(as defined in Section 4.3) in any two consecutive months; or (b) the acquisition of U.S. Half Portion
Customer (whether in whole or by majority or controlling interest) by an entity which is insolvent,
which is subject to bankruptcy or insolvency proceedings, which owes past due amounts to NTT
America, Inc., any NTT America, Inc. Affiliate or any other NTT America, Inc. service provider, or
which presents a materially greater credit risk than U.S. Half Portion Customer.
Network shall mean the telecommunication systems and facilities utilized by NTT
America, Inc. (or any of NTT America Inc.s Affiliates or other NTT America, Inc. service providers) in
providing U.S. Half Portion Service.
Party shall mean U.S. Half Portion Customer(s), on the one hand, and NTT America,
Inc., on the other hand.
Provider shall mean NTT America, Inc. or any NTT America, Inc. Affiliate identified in
the Arcstar Service Order and Agreement or in any applicable Service Order as the Provider of
U.S. Half Portion Service under the Agreement.
Service Equipment shall mean the equipment, systems, cabling, and facilities
provided by NTT America, Inc. or its Affiliate(s) in order to make available the U.S. Half Portion
Service to the U.S. Half Portion Customer. Service Equipment shall not include any equipment
which is the subject of a separate supply contract between NTT America, Inc. (or any NTT America,
Inc. Affiliate) and the U.S. Half Portion Customer.
Service shall mean the specific non-U.S. Half Portion telecommunications services
(including related ancillary services) supplied by Providers other than NTT America, Inc. pursuant to
the Arcstar Service Order and Agreement.
Tariff shall mean any applicable tariff filed by NTT America, Inc. with the Federal
Communications Commission, which is applicable to the U.S. Half Portion Service.
U.S. Half Portion shall mean the communications path between a point of presence in
the United States which is identified in the Arcstar Service Order and Agreement or in any applicable
Service Order and the theoretical midpoint of the communications path that terminates at the
corresponding Providers designated point of presence outside the United States.
U.S. Half Portion Customer shall mean any entity identified in the Arcstar Service
Order and Agreement or in any applicable Service Order as the Customer of U.S. Half Portion
Service provided by NTT America, Inc., as Provider, thereunder.
U.S. Half Portion Service shall mean the specific U.S. Half Portion
telecommunications services (including related ancillary services) supplied by NTT America, Inc., as
Provider, to the U.S. Half Portion Customer, all as described in the Agreement and in any relevant
Service Order.
2. Service
2.1 Acceptance of Service Orders. Each Service Order or Service Order Modification shall
be binding only after it is accepted and signed by or on behalf of NTT America, Inc. Upon any such
acceptance, such Service Order or Service Order Modification, as the case may be, shall be deemed
to be a part of the Agreement. In the event of a conflict among the terms contained in these Terms
and Conditions, the body of the Arcstar Service Order and Agreement, any applicable Tariff, Service
Order, or other attachment to, or document expressly referenced in the Arcstar Service Order and
Agreement, the following order of precedence shall control:
Tariff
Terms and Conditions (including any attachments hereto)
Service Orders (including any attachments thereto)
Service Order Modification (including any attachments thereto)
Body of the Arcstar Service Order and Agreement
Other attachments to the Arcstar Service Order and Agreement
Other documents expressly referred to in the Arcstar Service Order
and Agreement
2.2 Configuration of U.S. Half Portion Service. In order to maintain the level and quality of
the U.S. Half Portion Services, NTT America, Inc. reserves the right at all times to change or alter the
configuration of the U.S. Half Portion Services or any Service Equipment provided in connection with
these Terms and Conditions. NTT America, Inc. shall use reasonable efforts to cause at least one
months prior written notice to be given to the U.S. Half Portion Customer of any such changes or
alterations. Regardless of any such configuration changes, the prices, the U.S. Half Portion Service
quality levels, and the U.S. Half Portion Services provided will be those reflected in the Arcstar
Service Order and Agreement and applicable attachments thereto or in any applicable Service
Order.
2.3 Performance by Affiliates, Other Service Providers or Subcontractors. NTT America,
Inc. reserves the right to use its Affiliates, other service providers or subcontractors to perform any of
NTT America, Inc. duties and/or obligations hereunder.
2.4 U.S. Portion. NTT America, Inc. shall be responsible for the U.S. Half Portion of the
Service only and shall have no liability with respect to any other portion of any Service. These
Terms and Conditions relate to the U.S. Half Portion Service only.
3. Testing and Acceptance of U.S. Half Portion Service
3.1 Installation and Testing. Subject to the compliance by U.S. Half Portion Customer
with its obligations hereunder, NTT America, Inc. shall use commercially reasonable efforts to make
available for use by U.S. Half Portion Customer, on or before the Requested Start Date or expedited
Requested Start Date (as requested by U.S. Half Portion Customer) specified in the Service Order,
the U.S. Half Portion Service or provided equipment specified in the Service Order. Upon
completion of any necessary installation and testing of such U.S. Half Portion Service or provided
equipment, NTT America, Inc. shall notify U.S. Half Portion Customer of the availability of such U.S.
Half Portion Service or provided equipment and upon such notification the U.S. Half Portion Service
or provided equipment shall be deemed delivered to and accepted by U.S. Half Portion Customer.
NTT America, Inc. shall provide U.S. Half Portion Customer with follow-up written notification in the
form of a Service Start Notification notice. Unless specified otherwise in the Service Order, in
testing such U.S. Half Portion Service or provided equipment, NTT America, Inc. shall utilize industry
standard acceptance tests.
3.2 Acceptance. Within five (5) business days of U.S. Half Portion Customers
notification pursuant to Section 3.1, U.S. Half Portion Customer shall provide NTT America, Inc. with
written notice of any defects, faults, or impairments in the U.S. Half Portion Service or provided
equipment. NTT America, Inc. shall use commercially reasonable efforts to remedy any such
defects, faults, or impairments. If U.S. Half Portion Customer timely delivers such notice to NTT
America, Inc. and provided such defects, faults or impairments are due to NTT America, Inc., U.S.
Half Portion Customer shall not be deemed to have accepted the affected U.S. Half Portion Service
or provided equipment, until notification has been provided to U.S. Half Portion Customer pursuant to
Section 3.1 . If U.S. Half Portion Customer has not timely notified NTT America, Inc. of any defects,
faults, or impairments, U.S. Half Portion Customer shall be deemed to have accepted the U.S. Half
Portion Service or provided equipment. The date on which U.S. Half Portion Customer shall have
accepted, or shall be deemed to have accepted, the U.S. Half Portion Service or provided equipment
shall be the Service Start Date.
4. Billing and Payment
4.1 One Stop; Billing. U.S. Half Portion Customer understands that, if so directed by U.S.
Half Portion Customer in the Agreement, NTT America, Inc. will combine and direct invoices
pursuant to U.S. Half Portion Customers instructions set forth in the Arcstar Service Order and
Agreement. U.S. Half Portion Customer acknowledges and agrees that this billing service is for
convenience of such U.S. Half Portion Customer and will in no way be deemed to relieve U.S. Half
Portion Customer of its obligation to make timely payment with respect to all invoices for U.S. Half
Portion Service, and that U.S. Half Portion Customer shall be responsible for all charges and fees
(including late payment charges) incurred by any Authorized User of U.S. Half Portion Customer.
Unless otherwise provided in the Arcstar Service Order and Agreement, NTT America, Inc.s charges
for U.S. Half Portion Service shall be billed monthly in arrears for recurring charges and non-
recurring charges.
4.2 Commencement of Charges, Security Deposit. The U.S. Half Portion Customer is
responsible for, and shall pay, all charges for U.S. Half Portion Service, including any applicable
minimum commitments. Unless otherwise set forth in the Arcstar Service Order and Agreement,
such charges for U.S. Half Portion Service shall commence upon the earlier of (i) the acceptance of
U.S. Half Portion Service by U.S. Half Portion Customer pursuant to Article 3, (ii) the date on which
the U.S. Half Portion Customer begins to use the U.S. Half Portion Service notwithstanding any
notification given by the U.S. Half Portion Customer to NTT America, Inc. pursuant to Section 3, or
(iii) as otherwise provided in any applicable Service Order. If the Service Start Date for any U.S. Half
Portion Service falls on any other day than the first day of any month, the first invoice to U.S. Half
Portion Customer shall consist of (1) the pro-rata portion of the applicable monthly recurring charge
covering the period from the Service Start Date to the first day of the subsequent month, and (2) the
monthly recurring charge for the following month. NTT America, Inc. may, in its sole discretion, prior
to delivering the first invoice to U.S. Half Portion Customer, elect to require that U.S. Half Portion
Customer make a security deposit amount equal to (I) with respect to the Service specified in the
Service Order, three (3) months of recurring charges plus any non-recurring charges for such
Service, or (II) with respect to each item of Provider Equipment specified in the Service Order, three
(3) months of monthly rental fees for such Provider Equipment. At any other time, in addition to any
other rights available hereunder, if U.S. Half Portion Customer fails to pays timely any amount due
and payable hereunder, or if an adverse change in U.S. Half Portion Customers creditworthiness
has happened or occurred, Provider may elect, in its reasonable discretion, to require U.S. Half
Portion Customer to make promptly such deposit as a condition to the continued provision of Service
or continued use of Provider Equipment. Provider shall hold any such a deposit until, as applicable,
the termination of such Service or the return of such Provider Equipment, and until the performance
by U.S. Half Portion Customer of all other obligations hereunder, at which time Provider may apply,
at its option, such a deposit against any amounts owing to Provider. No such deposit shall relieve
U.S. Half Portion Customer of its responsibility for the prompt payment of all invoices upon receipt;
and any such deposit shall be refunded with interest (if any) as may be required by any Law.
.
Customer Initial ______________
2 NTT America, Inc. Confidential
4.4 Interest, Additional Deposit. U.S. Half Portion Customer shall pay each invoice for U.S.
Half Portion Service in full within 30 days after the date of such invoice or by such other date set
forth in the Arcstar Service Order and Agreement (the Due Date). U.S. Half Portion Customer
agrees to pay interest at the rate of One and a Half Percent (1 %) per month (but subject to
the maximum rate permitted by Law) on invoices more than ten (10) days past due.. In addition,
if any amount due NTT America, Inc. under the Agreement is not received by the applicable Due
Date, in addition to its other remedies available hereunder, NTT America, Inc. may in its sole
discretion: require the prepayment of up to two months of aggregate recurring charges as a
condition of the continued availability of the U.S. Half Portion Services, which prepayment shall
be held and applied against the last two months of charges hereunder prior to termination of all
U.S. Half Portion Services. Notwithstanding anything in the Agreement to the contrary, no
payment due hereunder is subject to reduction, set-off or adjustment of any nature by U.S. Half
Portion Customer. In no event shall the malfunction or non-operation of interconnection facilities
to the Network (including local access) relieve U.S. Half Portion Customer of its obligation to pay
for U.S. Half Portion Services.
4.5 Taxes. Amounts due to NTT America, Inc. under the Arcstar Service Order and
Agreement do not include applicable taxes, if any. U.S. Half Portion Customer shall pay all taxes
applicable to the U.S. Half Portion Service, as determined by the relevant taxing authority.
Applicable taxes include, but are not limited to, any federal, state, local or other use, excise,
gross receipts, sales or privilege taxes, duties, fees, charges, surcharges to recover the cost of
universal service contributions, or similar liabilities (other than the general income or property
taxes of NTT America, Inc.) imposed by any authority, government or government agency in
connection with or as a result of the U.S. Half Portion Services provided to the U.S. Half Portion
Customer, whether charged to or against NTT America, Inc. or its U.S. Half Portion Customer.
4.6 Changes in Charges. NTT America, Inc. may change the rates and charges applicable
to any U.S. Half Portion Service upon thirty (30) days prior notice at the end of the initial term
applicable to such U.S. Half Portion Service or any applicable renewal term, or at anytime in the
event that change is required by applicable law, rule or regulation or by a governmental order or
mandate.
4.7 Billing Disputes. All disputes or requests for billing adjustments must be submitted in
writing and submitted with payment of undisputed amounts due. Any amounts which are
determined by NTT America, Inc. to be in error or not in compliance with the Agreement shall be
adjusted on the next months invoice. Any disputed amounts which are deemed by NTT
America, Inc. to be correct as billed and in compliance with the Agreement, shall be due and
payable by U.S. Half Portion Customer, upon notification and demand by NTT America, Inc.,
along with any late payment charges which NTT America, Inc. may impose pursuant to
Section 4.4 above. Disputes shall not be cause for U.S. Half Portion Customer to delay
payment of the undisputed balance to NTT America, Inc.
5. U.S. Half Portion Service Maintenance
Upon prior notice of forty-eight (48) hours, NTT America, Inc. may terminate, suspend, or
otherwise restrict access to, in whole or in part, the Network, Service, and Provider Equipment where
necessary for routine repair or maintenance work. NTT America, Inc. shall use commercially
reasonable efforts to perform such work at mutually agreeable times.
6. Fault Resolution; Allowance for Interruption
6.1 Notice of Defects. In the event that the U.S. Half Portion Customer becomes aware of a
defect, fault, or impairment in the provision of the U.S. Half Portion Service and the U.S. Half
Portion Customer promptly gives notice thereof to NTT America, Inc., then NTT America, Inc.
shall resolve the defect, fault, or impairment as quickly as reasonably possible.
6.2 Defects Caused by U.S. Half Portion Customer. If it is determined that the defect, fault,
or impairment is caused in whole or in part by (i) the act, omission, breach, or fault of the U.S.
Half Portion Customer or any of its Authorized Users, suppliers, contractors, employees,
customers or agents, or (ii) the failure or malfunction of Customer Equipment, then U.S. Half
Portion Customer shall pay fees and expenses incurred in remedying the defect, fault, or
impairment, calculated on a time and materials basis.
7. Compliance with Applicable Law and Regulation
In connection with the matters provided for in the Agreement, each Party shall comply with
all applicable laws and regulations, including, but not limited to, the Communications Act of 1934, as
amended, and the policies, rules and regulations of the FCC.
8. Warranties
8.1 Remedy of Defects. If U.S. Half Portion U.S. Half Portion Customer becomes aware of a
defect, fault, or impairment in the Service, NTT America, Inc. Equipment, or Network, U.S.
Half Portion U.S. Half Portion Customer promptly shall notify NTT America, Inc. in writing of
same. NTT America, Inc. then shall use commercially reasonable efforts to resolve such
defect, fault, or impairment. Notwithstanding anything to the contrary herein, U.S. Half Portion
Customer shall be solely responsible for any defect, fault, or impairment in the Service, NTT
America, Inc. Equipment, or Network attributable to: (I) any breach by U.S. Half Portion
Customer of any obligation hereunder, (II) any negligent, fraudulent, or willful act or omission
by U.S. Half Portion Customer or Authorized User in using the Network, Service, or NTT
America, Inc. Equipment, (III) any use of the Network, Service, or NTT America, Inc.
Equipment by an entity or person obtaining access to same through U.S. Half Portion
Customer or Authorized User, or (IV) any U.S. Half Portion Customer Equipment. U.S. Half
Portion Customer, at its expense, shall use commercially reasonable efforts to resolve such
defect, fault, or impairment.
.
8.2 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE 8
OF THESE TERMS AND CONDITIONS OR IN ANY APPLICABLE SERVICE ORDER, NTT
AMERICA, INC. MAKES NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS,
IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY U.S. HALF PORTION
SERVICE, ANY SERVICE EQUIPMENT, THE NETWORK, OR AS TO ANY OTHER MATTER,
ALL OF WHICH WARRANTIES BY NTT AMERICA, INC. ARE HEREBY EXCLUDED AND
DISCLAIMED. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES.
9. Remedies; Limitation of Liability
9.1 EXCLUSIVE REMEDIES. THE U.S. HALF PORTION CUSTOMERS SOLE REMEDIES
FOR DEFECTS IN U.S. HALF PORTION SERVICE SHALL BE LIMITED TO THOSE THAT ARE
STATED IN THESE TERMS AND CONDITIONS OR UNDER ANY APPLICABLE SERVICE
ORDER OR ANY APPLICABLE SERVICE LEVEL AGREEMENT. THE REMEDIES SET
FORTH IN THIS ARTICLE 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES.
9.2 LIMITATION OF LIABILITY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT
SHALL NTT AMERICA, INC.S LIABILITY FOR ANY REASON UNDER THE AGREEMENT
EXCEED AN AMOUNT EQUAL TO THE AGGREGATE FEES AND CHARGES ACTUALLY
PAID TO NTT AMERICA, INC. FOR U.S. HALF PORTION SERVICE BY U.S. HALF PORTION
CUSTOMER WITH RESPECT TO THE THREE MONTH PERIOD IMMEDIATELY PRECEDING
THE MONTH IN WHICH THE EVENT GIVING RISE TO NTT AMERICA, INC.S LIABILITY
ARISES.
10. Renewal Terms; Suspension; Termination; Cancellation
Charges
10.1 Renewal Terms. To ensure continuity of U.S. Half Portion Service, each U.S. Half
Portion Service Order will, unless a Service Commitment Period is specified in the Service
Order, shall continue for one (1) year (Initial Term). Thereafter, unless provided otherwise in
the Service Order, the term hereof shall continue (Renewal Term), unless and until terminated
by either Party by written notice sixty (60) days prior to the end of the Initial Term or a Renewal
Term, as applicable.
10.2 NTT America, Inc.s Suspension and Termination Rights. NTT America, Inc., at its
option, may terminate all or any portion of the U.S. Half Portion Service and all related Service
Orders and all portions of the Arcstar Service Order and Agreement relating to such U.S. Half
Portion Service, or withdraw or suspend all or any portion of the U.S. Half Portion Service at any
time upon:
10.2.1 Payment Failure. NTT America, Inc. reserves the right to suspend or
terminate Services to any account in default with respect to undisputed amounts, which
suspension or termination (irrespective of its cause) shall not relieve U.S. Half Portion
Customer of its obligation to pay the monthly fees for the services specified in Service
Order for the balance of the applicable term and any other fees or amounts specified on
the applicable Service Order (collectively, Third Party Charges).
10.2.2 Uncured Breach. U.S. Half Portion Customers or any other Customers
failure to cure any material breach (other than with respect to payment obligations) of the
Arcstar Service Order and Agreement, including all attachments thereto (including,
without limitation, these Terms and Conditions), by U.S. Half Portion Customer within
thirty (30) days after U.S. Half Portion Customers receipt of notice from NTT America,
Inc. describing such breach.
10.2.3 Tariff. Any applicable Tariff permits termination or suspension of U.S. Half
Portion Service.
10.2.4 Regulatory Event. NTT America, Inc. is obliged to comply with an order,
instruction or request of government, an emergency service organization or other
competent administrative authority, which results in termination or suspension of U.S.
Half Portion Service.
10.2.5 Unlawful Usage. The U.S. Half Portion Service is used for any illegal
purpose.
10.3 Notice of Suspension. In the event that NTT America, Inc. exercises its right to
suspend any U.S. Half Portion Service pursuant to Section 10.2 or as otherwise permitted under
the Agreement, NTT America, Inc. shall use its reasonable efforts when reasonably practical to
give notice to U.S. Half Portion Customer of such suspension and to include an explanation and
the expected duration as promptly thereafter as is practical.
10.4 Suspension Costs and Expenses. In the event the suspension is implemented, as
permitted under these Terms and Conditions or as otherwise permitted under the Agreement, in
connection with the breach, fault, or omission of the U.S. Half Portion Customer, the U.S. Half
Portion Customer shall pay NTT America, Inc. all reasonable costs and expenses incurred by the
implementation of such suspension and/or recommencement of the provision of the U.S. Half
Portion Service.
10.5 U.S. Half Portion Customers Termination Rights. U.S. Half Portion Customer, at its
option, may terminate any portions of U.S. Half Portion Service materially and adversely affected
by NTT America, Inc.s failure to cure any material breach of the Arcstar Service Order and
Agreement by NTT America, Inc. within thirty (30) days after NTT America, Inc.s receipt of
notice from U.S. Half Portion Customer describing such breach.
10.6 Termination Rights of Both Parties. Either Party may terminate all U.S. Half Portion
Services and all portions of the Agreement relating to the U.S. Half Portion: (i) in the event the
other Party fails generally to pay its debts as such debts become due, or upon the admission by
such other Party in writing of its inability to pay its debts as such debts become due, or the
making by such other Party of any general assignment for the benefit of creditors; (ii) the
commencement by the other Party of any case, proceeding, or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts
under any law relating to bankruptcy, insolvency, or reorganization, or relief of debtors, or
seeking appointment of a receiver, trustee, custodian, or other similar official for it or for all or
any substantial part of its property; or (iii) the commencement of any case, proceeding or other
action against the other Party seeking to have any order for relief entered against such Party as
debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of such Party or its debts under any law relating to bankruptcy, insolvency,
reorganization, or relief of debtors, or seeking appointment of a receiver, trustee, custodian, or
other similar official for such Party or for all or any substantial part of the property of such Party,
and (I) such Party shall, by any act or omission, indicate its consent to, approval of, or
acquiescence in such case, proceeding or action, or (II) such case, proceeding or
action results in the entry of an order for relief which is not fully stayed within seven business
days after the entry thereof, or (III) such case, proceeding, or action remains undismissed for a
period of thirty (30) days or more or is dismissed or suspended only pursuant to Section 305 of
the United States Bankruptcy Code or any corresponding provision of applicable foreign law or of
any future United States Bankruptcy laws or applicable foreign law.
10.7 Cancellation Charges. In the event U.S. Half Portion Customer terminates any U.S.
Half Portion Service for any reason, other than pursuant to Section 10.5 or due to NTT America,
Inc.s failure to cure any material breach of the Agreement by NTT America, Inc. within 30 days
after NTT America, Inc.s receipt of notice from U.S. Half Portion Customer describing such
breach (in which case U.S. Half Portion Customer may terminate only the portions of U.S. Half
Portion Service materially and adversely affected by such breach), during the initial term
applicable to such U.S. Half Portion Service or during any renewal term applicable to such U.S.
Half Portion Service, or in the event U.S. Half Portion Customer terminates any U.S. Half Portion
Service after NTT America, Inc.s acceptance of the Service Order for such U.S. Half Portion
Service but before the commencement of the initial term applicable to such U.S. Half Portion
Service, in addition to all other amounts owed by U.S. Half Portion Customer for such U.S. Half
Portion Service through the service termination date, whether or not such amounts have been
billed before such date, U.S. Half Portion Customer shall pay to NTT America, Inc. a termination
liability amount equal to one hundred percent (100%) of the aggregate monthly charges
(including applicable taxes, duties or surcharges applicable thereto) applicable to the remainder
of such initial term or renewal term, as the case may be (or in the event the initial term had not
yet commenced, the entire initial term), for such U.S. Half Portion Service. Such amount shall be
immediately due, owing and payable, without demand, by U.S. Half Portion Customer. U.S. Half
Portion Customer and NTT America, Inc. agree that NTT America, Inc.s damages would be
difficult or impossible to ascertain and that the provisions of this Section are intended, therefore,
to establish liquidated damages in the event of cancellation and is not intended as a penalty.
Customer Initial ______________
3 NTT America, Inc. Confidential
10.8 Survival. Any termination or suspension of U.S. Half Portion Services shall not
relieve the U.S. Half Portion Customer of its obligation to pay all charges for U.S. Half Portion
Services previously provided hereunder. The Parties rights and obligations, which by their
nature would extend beyond the termination or expiration of the U.S. Half Portion Service or the
Agreement, shall survive any such termination or expiration.
11. Certain U.S. Half Portion Customer Obligations
11.1 Access. U.S. Half Portion Customer shall allow NTT America, Inc. continued access
and right of way to U.S. Half Portion Customers premises to the extent reasonably determined
by both Parties to be appropriate to the provision and maintenance of the U.S. Half Portion
Service, the Service Equipment, the Network, and related facilities and systems. U.S. Half
Portion Customer shall furnish NTT America, Inc., at no charge, such equipment, space and
electrical power as is reasonably determined by NTT America, Inc. to be suitable in order to
provide the U.S. Half Portion Service, and shall inform NTT America, Inc. of existing technical
and other facilities (such as water, gas, etc.) which could be damaged when installing and
providing equipment, facilities and/or services. NTT America, Inc. shall not be responsible for
damages or delays caused by denied or delayed access to U.S. Half Portion Customers
premises. NTT America, Inc. will be liable to U.S. Half Portion Customer for any damage to
Customer Equipment or property caused by the grossly negligent or willful act or omission of
NTT America, Inc.; provided, however, that NTT America, Inc.s total liability in such event shall
not exceed the aggregate monthly recurring charges paid by U.S. Half Portion Customers for
U.S. Half Portion Service rendered with respect to the three month period immediately preceding
the month in which such act or omission occurs.
11.2 Liability for Damage. U.S. Half Portion Customer shall be liable for any and all
damages to Service Equipment, facilities or the Network that are caused, directly or indirectly, by
(i) the negligent or willful act or omission of U.S. Half Portion Customer or any of its Authorized
Users, agents, employees, contractors or suppliers, (ii) U.S. Half Portion Customers breach of
the terms of the Agreement, or (iii) the malfunction or failure of any equipment or facility provided
by the U.S. Half Portion Customer or its agents, Authorized Users, employees, contractors or
suppliers.
11.3 Hazardous Materials. U.S. Half Portion Customer shall be responsible for
identifying, monitoring, removing, and disposing of any hazardous materials or circumstances on
U.S. Half Portion Customers premises prior to any construction, installation or other work is
performed by NTT America, Inc. U.S. Half Portion Customer shall indemnify, defend, and hold
NTT America, Inc. harmless from any liability incurred in the use of, or in connection with, any
hazardous materials or hazardous conditions on the U.S. Half Portion Customers premises,
except for hazardous materials brought on such premises by, or hazardous conditions created
by, NTT America, Inc. NTT America, Inc. shall be responsible for identifying, monitoring,
removing, and disposing of any hazardous materials brought onto U.S. Half Portion Customers
premises by NTT America, Inc. or hazardous circumstances created on U.S. Half Portion
Customers premises by NTT America, Inc. NTT America, Inc. shall indemnify, defend, and hold
U.S. Half Portion Customer harmless from any liability incurred in the use of, or in connection
with, any hazardous materials brought onto U.S. Half Portion Customers premises by NTT
America, Inc. or hazardous conditions created on U.S. Half Portion Customers premises by NTT
America, Inc.
11.4 Information; Modifications. U.S. Half Portion Customer shall provide to NTT
America, Inc. such information as NTT America, Inc. may reasonably require in order to provide
and maintain the U.S. Half Portion Service, and U.S. Half Portion Customer shall, at its own
expense, modify its Customer Equipment in accordance with NTT America, Inc.s reasonable
instructions, provided such modifications are reasonably necessary to enable such Customer
Equipment to be used in conjunction with the U.S. Half Portion Service.
11.5 Customer Equipment Standards. U.S. Half Portion Customer shall ensure at all
times that the Customer Equipment shall conform to NTT America, Inc.s standards and
applicable national standards of approval, and shall at all times comply with all conditions of such
standards. NTT America, Inc. reserves the right (but is not obligated) to disconnect any
Customer Equipment if, in the reasonable opinion of NTT America, Inc., such Customer
Equipment may (i) cause the death of, or personal injury to, any person, or damage to the
property of NTT America, Inc. or of any person, or (ii) materially impair the quality of any
telecommunication services provided by means of the Network.
11.6 Certain Notifications, Consent and Cooperation. U.S. Half Portion Customer shall, if
required by any applicable license or requested by NTT America, Inc., notify or obtain any
necessary consents or cooperation of appropriate telecommunications provider(s) or other
relevant person(s) for the connection to, or maintenance of, Customer Equipment. NTT
America, Inc. shall have no liability whatsoever in any case where such notification is not given
or such consent or cooperation is not obtained.
11.7 Consents Regarding Service Equipment. U.S. Half Portion Customer shall obtain all
necessary licenses, waivers, consents, and registrations necessary to deliver, install, and
maintain the Service Equipment at the U.S. Half Portion Customers premises. NTT America,
Inc. may, in writing, advise the U.S. Half Portion Customer of, and the U.S. Half Portion
Customer shall comply with, any additional requirements related to the Service Equipment.
11.8 Consents to NTT America, Inc. The U.S. Half Portion Customer hereby grants to
NTT America, Inc. all such licenses, consents, or registrations referred to in Section 11.7 to the
extent necessary for the delivery, installation and maintenance of the Service Equipment at the
U.S. Half Portion Customers premises.
11.9 Service Equipment. The U.S. Half Portion Customer shall:
11.9.1 house the Service Equipment in accordance with NTT America,
Inc.s instructions;
11.9.2 not move, modify, relocate, or in any way interfere with the Service
Equipment;
11.9.3 not cause the Service Equipment to be repaired, serviced, or
otherwise attended to except by an authorized representative of NTT America, Inc.;
11.9.4 not remove, tamper with, or obliterate any words or labels on the
Service Equipment;
11.9.5 not create or allow any charges, liens, pledges, or other
encumbrances whatsoever to be placed on the Service Equipment. Title to the Service
Equipment shall at all times belong and remain with NTT America, Inc., the relevant NTT
America, Inc. Affiliate or any applicable third party lender of either NTT America, Inc. or
such Affiliate;
11.9.6 not use the Service Equipment for other purpose than receiving U.S.
Half Portion Services;
11.9.7 permit NTT America, Inc. to inspect or test the Service Equipment at
all reasonable times upon U.S. Half Portion Customers receipt of reasonable notice; and
11.9.8 upon termination of any applicable Service Order(s) or other
agreement governing the provision and use of Service Equipment, allow NTT America,
Inc. access to the U.S. Half Portion Customer Premises to remove the Service
Equipment covered thereby. Should any construction or alteration of U.S. Half Portion
Customers premises have occurred in order to facilitate provision or maintenance of the
U.S. Half Portion Service, NTT America, Inc. shall not be liable nor be obliged to restore
the U.S. Half Portion Customers premises to the same physical state as prior to U.S.
Half Portion Service delivery.
11.10 Health and Safety. U.S. Half Portion Customer shall advise NTT America, Inc. of all
health and safety at work rules and regulations applicable to, all dangerous objects and
substances located at, and all other reasonable security requirements applicable to, the U.S.
Half Portion Customer premises, and NTT America, Inc. shall observe and ensure that its
employees and authorized representatives observe such rules, regulations and requirements
while at the U.S. Half Portion Customer premises, provided that U.S. Half Portion Customer shall
have notified NTT America, Inc. in writing of such rules, regulations and requirements and that
NTT America, Inc. shall not be liable if as a result of conforming with such rules, regulations and
requirements NTT America, Inc. is in breach of its obligations under the Agreement.
11.11 U.S. Half Portion Service. Neither U.S. Half Portion Customer nor its Authorized
Users shall abuse or use the U.S. Half Portion Service for any improper, fraudulent or unlawful
purpose, or allow others to do so, and U.S. Half Portion Customer shall bear all responsibility
and liability regarding the content of the information or data transmitted on the Network through
U.S. Half Portion Customers use of the U.S. Half Portion Service. U.S. Half Portion Customer
shall hold, at all relevant times, all appropriate licenses to use all equipment which is to be
connected to the Service Equipment and will not use the U.S. Half Portion Service in a way
which might lead to any breach of the provisions of any license held by either Party and further
agrees to use the U.S. Half Portion Service and Service Equipment only for the purposes
represented to NTT America, Inc. by U.S. Half Portion Customer at the time the Service Order is
entered into.
12. Representations and Warranties
U.S. Half Portion Customer hereby represents and warrants to NTT America, Inc. that:
(i) the party executing the Agreement on behalf of U.S. Half Portion Customer has
been duly authorized to execute the Agreement on behalf of U.S. Half Portion
Customer by all necessary corporate or partnership action of U.S. Half Portion
Customer (which authorization has been modified or rescinded and is in full
force and effect);
(ii) the execution, delivery and performance by, or on behalf of, U.S. Half Portion
Customer of the Agreement, the fulfillment of and the compliance with the
respective terms and provisions of the Agreement and the consummation by
U.S. Half Portion Customer of the transactions contemplated hereby have
been duly authorized by all necessary corporate partnership action of U.S.
Half Portion Customer (which authorization has been modified or rescinded
and is in full force and effect); and
(iii) the Agreement constitutes a valid and binding obligation of U.S. Half Portion
Customer, enforceable in accordance with its terms.
13. Severability
If any part of any provision of the Agreement or any other agreement, document or writing
given pursuant to or in connection with the Agreement, in each case which is applicable to the U.S.
Half Portion Service, shall be invalid or unenforceable under applicable law, said part shall be
ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the
remaining parts of said provision or the remaining provisions of said agreement, document or writing.
14. NTT America, Inc. Tariff
NTT America, Inc.s may at any time file a Tariff with the Federal Communications
Commission. In such event, such Tariff and all effective revisions thereto, and any successor tariff
thereto, shall be deemed automatically incorporated by reference in its entirety into the Agreement
and shall apply to the U.S. Half Portion Services provided pursuant to the Agreement.
15. Amendment; Waiver
Except as otherwise expressly provided in the Agreement, no amendment, modification or
discharge of the Agreement, and no waiver thereunder, shall be valid or binding unless set forth in
writing and duly executed by the Party against whom enforcement of the amendment, modification,
discharge or waiver is sought; provided, however, that the terms of the Agreement applicable to the
U.S. Half Portion may be amended or modified by the filing of a Tariff or any effective revision
thereto with the Federal Communications Commission by NTT America, Inc.
16. Force Majeure
Notwithstanding anything herein to the contrary, NTT America, Inc. shall not be liable for any
delay or failure in performance of any part of the Agreement, to the extent such delay or failure is
caused by events outside the reasonable control of NTT America, Inc., including by way of example
and not limitation: acts of God, fire, vandalism, explosion, flood, storm, other catastrophe or other
similar occurrence; any law, order, regulation, direction, action or request of the United States
government, or of any other government, including, without limitation, any state or local government,
or of any department, agency, commission, bureau, court, corporation, or other instrumentality of any
one or more of such governments, or of any civil or military authority; national emergency,
insurrection, riot, or war; unavailability of rights-of-way or materials; or strikes, lock-outs, work
stoppages, other labor difficulties; or any telecommunication carriers failure to provide service to
NTT America, Inc.; or any other causes beyond NTT America, Inc.s reasonable control. NTT
America, Inc. shall be excused from performance of its obligations hereunder, without liability to the
other Party, on a day-to-day basis to the extent of such prevention, restriction or interference. NTT
America, Inc. shall use reasonable efforts under the circumstances to avoid or remove such causes
of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes
are removed or cease.
Customer Initial ______________
4 NTT America, Inc. Confidential
17. No Licenses
No license, express or implied, is granted by NTT America, Inc. pursuant to the Agreement.
18. Relationship to Parties
Nothing in the Agreement shall be deemed to create any relationship between NTT America,
Inc. and U.S. Half Portion Customer other than that of independent parties contracting with each
other solely for the purpose of carrying out the provisions of the Agreement. Neither of the Parties
hereto shall be deemed or construed, by virtue of the Agreement, to be the agent, employee,
representative, partner, or joint venturer of the other. Neither Party is authorized, by virtue of the
Agreement, to represent the other Party for any purpose whatsoever without the prior written consent
of the other Party.
Notwithstanding any other provision of the Agreement, the Agreement applies only to U.S.
Half Portion Services provided to U.S. Half Portion Customer, and shall not apply to any offerings by
U.S. Half Portion Customer of U.S. Half Portion Services. The provision of U.S. Half Portion
Services by NTT America, Inc. as set forth in the Agreement does not constitute a joint undertaking
with U.S. Half Portion Customer for the furnishing of any U.S. Half Portion Service to U.S. Half
Portion Customers.
19. Confidentiality
Each Party agrees to provide to the other Party such information as shall be reasonably
necessary to permit the other Party to perform its obligations under the Agreement. Each Party shall
identify as confidential information (Confidential Information) all information provided by such Party
to the other Party which is considered by such providing Party to be confidential, proprietary
information. Neither Party will, without the prior written consent of the Party providing such
Confidential Information, (i) use any portion of such Confidential Information for any purpose other
than performance pursuant to the Agreement, or (ii) disclose any portion of such Confidential
Information to any person or entity other than the officers and employees of such Party and its
Affiliates who reasonably need to have access to the Confidential Information for purposes of
performance under the Agreement and who are bound by appropriate confidentiality agreements and
commitments consistent with those utilized by such Party in protecting its own confidential
information. The obligations of a recipient Party with respect to Confidential Information shall remain
in effect except to the extent that: (i) it is in the public domain or comes into it other than (a) by
violation of the Agreement or by breach of any agreement between U.S. Half Portion Customer and
NTT America, Inc. or (b) by persons to whom a Party has made the information available; (ii) it can
be shown to have been rightfully obtained without restriction from another party lawfully possessing
and lawfully entitled to disclose such information; (iii) it can be shown to have been already known by
the receiving Party or independently developed by it prior to the disclosure; or (iv) disclosure is in
response to an order or request from a court, the Federal Communications Commission or other
regulatory body with jurisdiction over NTT America, Inc. or U.S. Half Portion Customer; provided,
however, that the disclosing Party shall first have been given reasonable notice and opportunity to
object to the order or request and/or to obtain a protective order covering the confidential information
to be disclosed. The recipient Party shall immediately notify the other Party of any disclosures to be
made pursuant to clause (iv) above.
20. Assignment
U.S. Half Portion Customer may not assign the Agreement or any Service Order applicable
to U.S. Half Portion Service without the prior written consent of NTT America, Inc. NTT America, Inc.
may assign any and all of its rights and obligations under the Agreement or under any such Service
Order (i) to any NTT America, Inc. Affiliate, (ii) pursuant to any sale or transfer of substantially all of
the assets of NTT America, Inc., or (iii) pursuant to any financing, merger, or reorganization of NTT
America, Inc.
21. Waiver; Partial Exercise of Rights
Neither the waiver by either Party hereto of a breach or a default under any of the provisions
of the Agreement, nor the failure of either Party, on one or more occasions, to enforce any of the
provisions of the Agreement or to exercise any right or privilege thereunder shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any
such provisions, rights or privileges hereunder.
22. Entire Agreement
The Agreement, including all attachments and appendices thereto, including these Terms
and Conditions (together with all of the other documents expressly referred to therein or herein),
expresses the entire understanding of the Parties and with respect to the matters set forth therein or
herein and replaces any and all former agreements, understandings, solicitations, offers, and
representations relating to such matters.
23. Binding Effect; Limitation on Benefits
It is the explicit intention of the Parties that no person or entity other than the Parties is or
shall be entitled to bring any action to enforce any provision of the Agreement against either Party,
and that the covenants, undertakings, and agreements set forth in the Agreement shall be solely for
the benefit of, and shall be enforceable only by, the Parties or their respective successors and
assigns as permitted hereunder. Subject to any provisions hereof restricting assignment, the
Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective
successors and permitted assigns.
24. Governing Law
The Agreement, the rights and obligations of the Parties, and any claims or disputes relating
thereto, to the extent related to the U.S. Half Portion and/or U.S. Half Portion Services provided in
connection therewith, shall be governed by and construed in accordance with the laws of New York
(but not including the choice of law rules thereof) and the Communications Act of 1934, as amended.
25. Headings; Pronouns
Article, section and subsection headings contained in the Agreement or in these Terms and
Conditions are inserted for convenience of reference only, shall not be deemed to be a part of the
Agreement for any purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions thereof or hereof. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or
entity may require.
26. Notices
All notices, demands, requests or communications given pursuant to or in connection with
the Agreement with respect to the U.S. Half Portion Services shall be given via facsimile, express
mail (or similar courier service), airmail, or by personal delivery. Notices shall be effective on the
date received at the applicable location identified in the Arcstar Service Order and Agreement or any
applicable Service Order, or at such time as delivery is refused by the addressee upon presentation.
Each Party may designate by notice in writing a new address to which any notice, demand, request
or communication may thereafter be so given, served or sent.
27. Publicity
Upon the execution of this Agreement, the Parties will work together to write and publish a
joint press release, describing the relationship created by this Agreement. The Parties agree to
collaborate to write additional joint press releases on an as-needed basis. In addition, NTT America,
Inc. may disclose the existence of this agreement (but not the contents of the Agreement) to its
respective customers for sales and marketing purposes without the consent of U.S. Half Portion
Customer.
By signing below, Customer acknowledges and agrees to be bound by the terms and conditions stated herein.
AGREED AND ACCEPTED BY CUSTOMER:
_____________________________________
Company Name
_____________________________________
Signature
_____________________________________
Printed Name
_____________________________________
Title
_____________________________________
Date