INTERNET PROVIDER SERVICE AGREEMENT
THIS AGREEMENT is made this [Date] by and between [Name of Provider], a [Type of Organization] with offices at [Address] (the ‘‘Provider’’), and [Name of Company], a [Type of Organization] with offices at [Address] (the ‘‘Customer’’).
1. SERVICES
A. Internet Connection Service. Provider shall provide Customer with the Internet connection service described in Attachment 1, Part A (the ‘‘Internet Connection Service’’) subject to the terms and conditions of this Agreement and any amendments or attachments which may then be in effect.
B. Changes. The capabilities and services available through the Internet as a whole regularly change and expand. In order to improve and adapt the Internet Connection Service to these changing conditions, Provider may add, delete or change the Internet Connection Service, at its sole discretion, by providing [number] ([##]) days prior written notice; provided, however, Provider shall not change the price during the Service Period (as defined in Attachment 1). In the event that Provider makes a material change to the Internet Connection Service which Customer elects not to accept, Customer may terminate this Agreement as provided for in Subsection 11(b) below.
2. PERMITTED USE
A. Internal Use/Third Party Access. Subject to the terms and conditions set forth herein, authorizes Customer:
1. to use the Internet Connection Service for its internal business purposes;
2. to provide access to the Internet Connection Service to customers of Customer located in the United States for such customers internal personal or business use (‘‘End User Customers’’); and
3. to permit customers of Customer (‘‘Reseller Customers’’) to provide access to the Internet Connection Service to its customers located in the United States for such customers internal personal or business use (together, End User Customers and Reseller Customers are called ‘‘Customer Customers’’).
B. Non-Exclusive Arrangement. Customer acknowledges and understands that this is a non-exclusive arrangement and nothing herein shall preclude Provider from providing Internet Connection Service or related services to any third party, or from authorizing third parties to make Internet Connection Service available to their customers.
3. TERM
The term of the Agreement shall extend so long as any Attachment to this Agreement remains in effect and Provider is providing Internet Connection Service to Customer.
4. PRICE, PAYMENT, AND TAXES
A. Price. The price for Internet Connection Service shall be set forth in Section C of the Attachment then in effect.
B. Invoices and Payment. Provider will submit invoices to Customer as provided for in the Attachment then in effect. Payment shall be made in U.S. dollars and is due net [number] ([##]) days from date of invoice.
C. Taxes. Prices payable by Customer to Provider under this Agreement are exclusive of any tax, levy, customs duty, import tax or similar governmental charge that may be assessed by any jurisdiction whether based on gross revenue or delivery of services, except for net income taxes assessed on Provider. All such taxes are the responsibility of Customer.
5. TRADEMARKS/PUBLICITY
A. Use of Provider’s Name and Trademarks. All trademarks, service marks and trade names identifying Provider or Provider products or services (the ‘‘Marks’’) are the exclusive property of Provider. Customer shall take no action which jeopardizes the Marks. Customer shall not use a Mark or the name of Provider in any advertising, promotional material, or public announcement without the prior written approval of Provider.
B. Use of Customer’s Name. Customer acknowledges that use of the Internet Connection Service will require that Provider include Customer’s name in registrations and administrative filings which are available to the public. In addition, Customer agrees that Provider may include Customer’s name in Provider marketing brochures and literature and indicate that Customer is a Provider customer.
6. CONTENT RESPONSIBILITY AND INTERNET SERVICE USE RESTRICTIONS
A. Customer acknowledges and agrees that it is solely responsible for the Content of its transmissions which pass through the Internet Connection Service. Customer also agrees it will not use the Internet Connection Service:
1. for illegal purposes,
2. to transmit threatening, obscene or harassing materials, or
3. to interfere with or disrupt other network users, network services or network equipment.
B. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms or viruses, and using the network to make unauthorized entry into any other machine accessible via the network.
7. CUSTOMER FLOWDOWN PROVISIONS
A. End User Customer. Prior to providing access to the Internet Connection Service to an End User Customer, Customer shall enter into written agreements with Customer Customers in which each such Customer agrees to the same provisions which Customer has agreed to in Section 6 above as well as the additional provisions set forth in Schedule A—Flowdown Provisions.
B. Reseller Customers. In the case of Reseller Customers, Customer shall enter into a written agreement with each Reseller Customer obligating such customers to enter into written agreements with customers of the Reseller Customer which contain the same terms as required of Customer in Section 7A above.
C. Any breach of the foregoing obligations may result in termination of the Internet Connection Service.
8. LICENSES
In the event that Customer purchases equipment from Provider in conjunction with the Internet Connection Service, Provider grants Customer a limited license to use any software provided with such equipment (the ‘‘Software’’) subject to the following terms and conditions:
A. Software provided is copyrighted and licensed for use solely on the equipment with which it is provided for Customer’s end use only.
B. Software provided hereunder is licensed by Provider from third parties. Title to and copyright in Software remains with the licensor. INTERNET PROVIDER AND ITS LICENSOR DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF SUCH SOFTWARE, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
C. All limitation of liability and indemnification provisions in this Agreement apply to the licensor.
D. Customer is authorized to make [number] ([#]) copies of Software for backup purposes only and is prohibited from further copying and/or transfer of Software.
E. Customer agrees it shall not reverse assemble, reverse compile, or otherwise translate Software or any portion thereof.
9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
A. Provider provides services hereunder strictly on an ‘‘AS IS’’ and ‘‘AS AVAILABLE’’ basis without any express guarantee or assurance of quality, reliability or functionality. Except as expressly set forth herein, Customer accepts all risk, including all risk with respect to suitability, use and performance of Internet Connection Service. INTERNET PROVIDER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In any instance involving performance or nonperformance by Provider with respect to services provided hereunder. Customer’s sole remedy shall be refund of a pro rata portion of the price paid for Internet Connection Service which was not provided. Refunds will be provided only for periods of lost service greater than [period].
B. Provider will not be liable for any damage that Customer may suffer arising out of use, or inability to use, the Internet Connection Service Except for intentional acts by Provider personnel, Provider will not be liable for unauthorized access to Customer’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of Customer’s or Customer Customers’ data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of Provider’s negligence. Provider shall not be liable for indirect, consequential, incidental, or special damages even if advised of the possibility in advance. Provider shall not be liable for any lost property or data of Customer or Customer Customers. Provider’s liability for damages to Customer for any cause whatsoever, regardless of form of action, shall be limited to the greater of [amount] or the amounts paid by Customer to Provider hereunder during the [number] ([##])-month period preceding the incident giving rise to the claim for damages.
10. INDEMNIFICATION
A. Indemnification by Provider. Provider will defend, indemnify, and hold Customer harmless from and against any claim or demand asserted by any third party that any hardware or software provided to Customer hereunder infringes any U.S. copyright, patent, trade secret, or other intellectual property right.
B. Indemnification by Customer. Customer agrees to defend, indemnify, and hold Provider harmless from and against any claim or demand asserted by any third party due to or arising out of use by Customer or any Customer of services provided hereunder.
C. Conditions. The indemnification obligations set forth above are contingent upon compliance with the following conditions by the party seeking indemnification:
1. Providing prompt written notice of a claim;
2. Providing all information and evidence within its control which is necessary for the indemnifying party to conduct a defense; and
3. Providing the indemnifying party with sole control of the defense and all related settlement obligations.
11. TERMINATION
A. Termination by Either Party. If any of the events below occur with respect to one party, then the other party may terminate this Agreement effective immediately upon the delivery of written notice:
1. A party becomes insolvent; files a voluntary petition in bankruptcy; proposes any dissolution, liquidation, reorganization or recapitalization; has filed against it an involuntary petition in bankruptcy, or a receiver is appointed or takes possession of the party’s property, and such petition is not dismissed or stayed within [number] ([##]) days of such filing, appointment, or taking possession; makes an assignment for the benefit of creditors, or is adjudicated as bankrupt; or takes any similar action under the laws of any jurisdiction.
2. Material breach of this Agreement which is not remedied within [number] ([##]) days after written notice (describing the breach with particularity) has been given.
3. Customer is merged into or acquired by another entity or there is a substantial change in Customer’s direct or indirect ownership or control of its voting securities or the sale of substantially all of its assets.
B. Termination by Customer. Customer may terminate this Agreement upon [number] ([##]) days’ written notice in the event that Provider makes material changes to the Interact Connection Service which Customer elects not to accept.
C. Effect of Termination. Upon termination Customer agrees to cease all use of the Internet Connection Service and to return any Provider-provided equipment and software.
12. EXPORT COMPLIANCE
The transfer of technology across national boundaries, including electronic transmission thereof, is regulated by the U.S. Government. Customer agrees not to export or re-export (including by way of electronic transmission) any technology transmitted through Internet Connection Service without first obtaining any required export license or governmental approval. Customer agrees it will not directly or indirectly export or re-export such technology to Iran, Iraq, the Federal Republic of Yugoslavia (Serbia and Montenegro), the People’s Republic of China, Sudan, Syria or any of those countries listed from time-to-time in supplements to Part 770 to Title 15 of the Code of Federal Regulations in Country Groups Q, S, W, Y, or Z. The parties acknowledge that the foregoing lists are subject to regulatory change from time to time and agree to update the lists as appropriate.
13. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under, this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
14. NOTICE AND PAYMENT
A. Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the above-stated address or mailed by certified, registered, or express mail, return receipt requested or by Federal Express.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
15. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of [State]. All disputes under this Agreement shall be resolved by litigation in the courts of the State of [State], including the federal courts therein, and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
16. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
17. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
18. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
19. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause, or provision and such invalid term, clause, or provision shall be deemed to be severed from the Agreement.
20. INTEGRATION
This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.
IN WITNESS WHEREOF each of the parties hereto has caused this Agreement to be duly executed by their authorized representatives and delivered in duplicate as of the date first written above.
[Name of Company]	[Name of Customer]	
By:	By:	
Name:	Name:	
Title:	Title:	
Attachment 1
CUSTOMER AGREEMENT
This Attachment to the Internet Provider Service Agreement between Customer and Provider Corporation (the ‘‘Agreement’’) covers Internet Connection Service—Premium Service Level and is an integral part of the Agreement.
1. Overview
Provider provides an extensive range of managed Internet connectivity services to address customers’ inter-organizational communications needs. Provider’s Internet Premium Connection Service allows customers to communicate with millions of Internet users and countless information resources around the world. The service is seamlessly integrated into the customer’s LAN environment, and is delivered by the industry’s most experienced and professional installation, network operations, field service, and technical support staff. Provider’s Internet Premium Connection Service leverages Provider’s long-standing Internet delivery and operational expertise to provide the highest quality service to our customers.
The Premium Service level has been designed for customers who view the Internet as a strategic resource and require a high level of reliability, quality, and performance to use the Internet as a vehicle for collaboration and commerce, but who prefer to manage elements of the service in-house, and retain control of the Internet access premises equipment.
Premium level customers own and assume operational management responsibility for their Internet access premises equipment. Premium level customers may customize their service by selecting several advanced capabilities on an a la carte basis.
For management purposes, the service demarcation point for Provider’s Internet Premium Connection Service is the communications circuit interface at the customer’s facility (i.e., it does not include the Internet access premises equipment).
2. Activation Service
Provider’s Internet Premium Connection Service customers receive tele-activation support (remotely via telephone) for the installation of their Internet connection. Activation support services associated with tele-activation are described below.
A. Site Planning and Preparation. Site planning information is provided to the customer’s designated point of contact. This helps customers prepare for the installation of Internet Connection Service. Customers need to provide space and power for the Internet access premises equipment (typically a router and CSU/DSU), an attachment to the customer’s internal local area network, and at least one computer with TCP/IP support.
Provider will perform registration of IP network numbers, domain names (up to [number] domain names per customer are included; registration of additional domain names may be purchased in units of [number]), and routing information as required for the customer’s environment.
B. Communications Circuit Ordering. Unless otherwise agreed, Provider will order (on behalf of the customer) the communications circuit necessary for delivery of service from a qualified telecommunications vendor. Provider arranges for the telecommunications vendor to install and terminate the circuit within close proximity of the planned location of the premises equipment. All one-time and recurring circuit charges, including any inside wiring charges associated with extending the circuit from the site’s normal telco demarcation point to the premises equipment location, are passed on to the customer.
Customers who wish to order, provision, and/or directly pay for the communications circuit themselves are discouraged from doing so. All requests of this nature will require approval by the Internet Service Line Manager (‘‘SLM’’), and be considered on an individual case basis.
Likewise, because of variability in telecommunications carrier quality, customers who wish to influence the selection by Provider of the telecommunications vendor chosen to provision the communications circuit will also require formal approval by the Internet SLM.
Because Provider has established agreements with specific telecommunications vendors at particular Points of Presence (‘‘POP’’), we cannot always accede to customer requests to connect their premises via a specific telecommunications provider. If approval is granted to permit a customer’s connection into a Provider POP via an unsupported telecommunications provider, all commitments regarding installation and/or repair times for these circuits are invalidated.
C. IP Address Assignment. Current Internet Registry IP address allocation guidelines encourage all Internet Customers (‘‘ICustomer’’) to loan IP network numbers from their assigned address space to customers for the duration of their Internet connectivity contract, and to require that customers return those numbers to the ICustomer upon termination of the connectivity contract. This policy ensures that ICustomers retain contiguous blocks of IP network numbers, which helps permit fast and manageable message routing across the Internet. Consequently, customers moving from one ICustomer to another should renumber their internal network into the new ICustomer’s address space.
Since IP addresses are in scarce supply, InterNIC also regulates the allocation of IP address blocks to ICustomers and their customers. To ensure that Provider continues to receive new IP address blocks as required, we only allocate IP network numbers to our customers according to InterNIC guidelines. Provider works with Internet customers who don’t currently possess legally assigned, valid IP network numbers to determine the number required to support their internetworking environment, and assigns a sufficiently-sized Class C IP address block to the customer based on the following criteria: at least [#]% of the requested IP address space must be immediately assignable to the customer’s current network population, with a total of [#]% to be assigned and utilized within the forthcoming year. Based on these utilization criteria, customer requests for one or two Class C IP network numbers will be routinely granted with minimal justification. (Each Class C IP network number supports up to 254 unique IP addresses.) Written justification is required by Provider for customer requests of up to sixteen Class C IP network numbers. Provider requires detailed justification (diagrams, rollout plans, subnetting plans, etc.) from all customers requesting more than sixteen and fewer than sixty-four Class C IP network numbers. By policy, Provider does not delegate blocks of sixty-four or more Class C IP network numbers to customers. Provider will assist customers in applying directly to InterNIC for very large address blocks.
Additional IP addresses may be assignable over time to the customer as their requirements grow.
Although assigned to the customer for the duration of their service contract with Provider, all Provider-assigned IP network numbers remain an integral part of Provider contiguous range of addresses and must be relinquished by the customer within [number] ([#]) days of the date on which service expires or is terminated. Customers who require or desire IP address portability should apply for IP network numbers directly to InterNIC.
For customers who have legally assigned IP network numbers that they wish Provider to route as part of the Internet Premium Connection Service, Provider will accept routing of those IP network numbers on behalf of these customers, but will pass on any settlement and/or peering charges that may be incurred (none exist today, but may in the future) associated with the carriage of these extra routes.
For customers requesting that Provider route IP network numbers belonging to another ICustomer’s address space, Provider requires written permission from that ICustomer to route those network numbers on the customer’s behalf. For those Internet Premium Connection Service customers who are designated as Downstream Customers (‘‘Dcustomer’’), whereby they resell Internet access services to customers of their own via their Internet connection, Provider will only provide IP network numbers for the DCustomer’s own internal networking purposes, not for those of the DCustomer’s customers.
D. Equipment Provisioning and Staging. Premium Service customers are responsible for providing, configuring, and installing their own Internet access premises equipment (‘‘CPE’’), and assume full management and operational control of that equipment. Furthermore, the CPE must comply with Provider specifications. As a convenience, Premium Service customers may acquire the premises equipment through Provider. Premium Service customers must maintain their premises equipment at appropriate hardware and software revision levels to ensure interoperability with the Provider backbone network. Maintenance packages are available for all equipment purchased through Provider.
The typical Internet access premises equipment package that Premium level customers may purchase from Provider consists of a TCP/IP router, CSU/DSU, RJ45 loopback connector, transceiver/adapter, and associated cables. Ethernet customers may choose between AUI or 10BASE-T and 10BASE-2 transceiver types. Token Ring customers may select either a 4 or 16 Mbps adapter. Where a different type of transceiver or adapter is required, the customer is responsible for providing it.
E. Initial Integration Service. Provider provides initial Internet integration support for Internet Premium Service customers. This includes basic consultation and assistance with the configuration of TCP/IP and SMTP software on the customer’s Internet computing systems (hosts and/or servers), which the customer is responsible for providing, installing, and maintaining. Provider does not undertake detailed design or configuration of the customer’s LAN or hosts as part of Internet Premium Service.
An implementation engineer (‘‘IE’’) and implementation coordinator (‘‘IC’’) are assigned by Provider to work with each Premium Service customer during the initial installation phase. The IC will call the customer’s technical point of contact within five business days of receipt of the order for service by Provider’s Customer Provisioning organization. The IC will confirm the details of the order and schedule a time for the customer to review technical details pertaining to the Internet connection with the IE. The IE acts as a liaison with the customer until the installation is complete and acceptance is attained. The integration phase of activation is considered complete when the criteria defined in section 2.6 below are met.
F. Acceptance Testing and Criteria. Upon equipment installation, Provider Network Operations and Customer Provisioning organizations conduct tests to ensure that the on-site customer router can successfully communicate over the Internet Connection Service. The acceptance test verities the proper operation of the on-site equipment package, the local access facility, site routings, and the Provider Internet backbone infrastructure. Connection activation for Premium Service customers is considered complete and service billing is initiated when the following criteria have been met:
1. The Internet router and associated premises equipment are installed at the customer site, and IP connectivity to the Internet (including routing outside Provider networks) exists. Provider verifies IP connectivity through a test that sends repeated pings through the Internet to the customer site and verifies that the pings were received. In cases where the premises equipment configuration supports it, Provider verifies IP routing through a trace route test.
2. The registration of customer domain names with InterNIC has been completed, and any Provider-supplied primary or secondary DNS servers are operational for the registered domains. For those customers who do not possess previously-assigned domain names, Provider will apply for and register up to ten domain names on the customer’s behalf. Unless otherwise instructed by the customer, Provider Network Operations Center (‘‘NOC’’) will be registered as a guardian at InterNIC for all domain names registered by Provider, which allows Provider to make any customer-requested changes. In all cases, the customer will be listed as the primary technical and administrative contact for domains Provider registers on their behalf.
3. The customer has at least one working client implementation that supports telnet, FTP, and WWW, or has acknowledged that they do not intend to have one at this time.
Provider’s goal is to have the customer’s e-mail system operational such that Internet SMTP mail can be sent and received from a single, specified host or mail translation gateway within the customer’s network. However, meeting this goal is dependent upon the customer having their e-mail system installed. Provider works with the customer in the activation planning phase to set committed dates for various portions of the installation. During this period, the customer is asked to coordinate their e-mail installation dates with Provider. If the customer is unable to meet this committed schedule, installation acceptance and service billing initiation are not deferred.
If, upon successful installation and testing of the customer’s communications circuit, the customer’s Internet access premises equipment or internal LAN is not yet ready for interconnection to the Internet, Provider will not delay billing for Internet Premium Connection Service by more than [period].
Service installation acceptance and billing will not be delayed if the customer’s NNTP news server is either not present or not functioning properly.
At acceptance, the customer’s primary point of contact with Provider for operational issues becomes the Customer Support Center (‘‘CSC’’).
G. Network Operations and Service. Provider’s network operations and technical support staff is dedicated to providing high network availability and performance. Internet Connection Service is monitored and maintained 24 hours per day, 365 days a year by experienced operators, technicians, and analysts.
Internet Connection Service covers a wide geographic area with a variety of technologies and links to other networks. Provider coordinates operations and maintenance with customer-assigned technical representatives, vendors of telecommunications services and hardware, and operators of other networks.
Under Internet Premium Connection Service, Provider’s Network Operations Center (‘‘NOC’’) performs proactive operations support and troubleshooting of network and service infrastructure components, including all customer access circuits.
H. Network Monitoring. Provider uses SNMP-based software to monitor the network. This software is coupled with additional tools to monitor non-SNMP-capable equipment, as well as domain name servers, NNTP servers and news feeds, and other network services. The monitoring software reports network status to operator consoles and displays that are monitored throughout the day. Changes in the network status are logged to provide Provider with the ability to evaluate staff responsiveness and network availability.
I. Communication Link Maintenance. Provider is responsible for maintaining any Provider-provided communications links between the customer’s site and Provider’s network. This includes problem diagnosis, and any necessary vendor interaction for dispatch and repair.
J. Premises Equipment Maintenance. Customers of Premium Connection Service may acquire their Internet access premises equipment through Provider or from another source. When the Internet premises equipment is obtained from Provider, Provider makes several maintenance pricing options available to the customer.
The Provider operations staff diagnoses failures with the assistance of the customer’s technical liaison, and determines whether equipment replacement is required. The customer is responsible for the actual replacement. For failures of premises equipment obtained from Provider and covered by Provider maintenance, Internet Premium Connection Service customers receive replacement equipment via next-business-day courier. Due to the fact that the equipment must be uniquely and appropriately configured for the customer’s particular environment prior to shipment, if the determination to replace the premises equipment is made after [time] [time zone] time, Provider will not be able to ship the equipment until the following business day, in which case it would be received by the customer two business days following the diagnosed failure. Customers needing a more rapid response should consider purchasing a four-hour, on-site service response package or one of the optional redundancy configurations available from Provider.
When the Internet premises equipment is acquired through another source, the customer is responsible for repairing or replacing any faulty components.
K. Technical Services and Support. Premium Service is intended for customers with the internal expertise necessary to manage an Internet connection without advanced, end-to-end support from Provider’s staff of internetworking professionals. As a result, Provider does not provide Premium level customers with on-call services for problems related to customer premises equipment and applications. Customers requiring on-call, end-to-end support should consider upgrading to either Internet UltraPremium or SuperPremium Service levels.
L. Software and Configuration Support. Provider’s equipment maintenance charge covers software updates and configuration changes as required for the router and CSU/DSU when the Internet premises equipment is acquired through Provider. At the time of customer provisioning, premises equipment obtained through Provider is delivered with current versions of software installed. Provider’s software upgrade policy for customer premises equipment does not involve routinely upgrading CPE software as new releases become available from the manufacturer unless not doing so impacts our ability to deliver service and/or maintain compatibility between the CPE and the components in the Provider backbone network. This determination is made by Provider’s Network Engineering staff. Similarly, customer-specific requests for CPE software upgrades to support customer-specific Internet-based applications will be evaluated for approval by Provider’s Network Engineering staff on an individual case basis.
Customers who acquire premises equipment from a source other than Provider are required to maintain that equipment’s compatibility with Provider’s network.
M. 24-Hour Hotline. All hotline calls are answered by a touchtone menu system, which facilitates quick connection to the appropriate Provider support staff. The hotline is staffed on a 24-hour basis.
N. Trouble Tracker System. The Provider Trouble Tracker System allows Premium Service customer connectivity problems to be tracked from initial report through satisfactory resolution. As the Provider staff works to resolve problems, the current status is updated in the Trouble Tracker System. The system’s electronic mail and fax interfaces allow these entries to be provided automatically to interested customer technical contacts. Tracker status information is also available via finger-based interfaces.
O. Fault Isolation and Problem Resolution. Premium Service includes access line monitoring, but not the Internet-wide, end-to-end problem diagnosis and resolution that is provided to Internet UltraPremium and SuperPremium Service customers. When a problem is encountered, the Provider NOC will work toward isolating the cause to the customer’s communications circuit, the network backbone, the customer’s premises equipment, etc. If the problem is associated with the communications line or the backbone, Provider takes responsibility for managing the resolution of the problem. In those instances where it is unclear whether an encountered problem is caused by the premises equipment or the access line, Provider provides a loopback plug that can be inserted at the point of demarcation; this enables the NOC to isolate the problem to the router, the CSU/DSU, or the communications circuit.
P. Security Event Information. Provider will endeavor to inform Internet customers about security events within Provider’s own network as well as within the Internet at large. Information and advisories regarding generic security problems issued by Computer Emergency Response Team (‘‘CERT’’) and/or other sources are regularly reviewed and may be distributed to customer sites by the Provider operations staff. Several distribution methods are employed (e.g., telephone, e-mail, fax, paging, etc.), based on the urgency and nature of the problem. Internet Premium customers may designate a list of up to five security contacts who will be authorized to request site disconnection or reconnection as necessary. In addition, the customer may pre-authorize Provider to disable their Internet connection during a security event that is deemed serious by Provider without express customer authorization at the time of the event.
Q. Advanced Services. The following advanced services are provided at no additional charge as part of Internet Premium Connection Service.
R. Secondary Domain Name Service (‘‘DNS’’). Provider provides Premium Service customers with secondary domain name service; up to [number] domains and [number] kilobytes of associated zone file data are included. This package is comprised of two components: domain name registration and secondary DNS administration. Included in the Premium Service level is registration and secondary administration of up to [number] domain names. Premium level customers may purchase additional secondary DNS service in units of [number] domains ([number]-packs).
Domain name registration includes the necessary registration of domain names with InterNIC. The customer is responsible for any initial registration and ongoing maintenance charges from InterNIC. These are billed directly to the customer by InterNIC.
Secondary DNS administration is maintained on multiple servers which are physically diverse and connected to the Provider backbone at different points.
Customers may also contract with Provider for primary domain name service for an additional charge.
For those Internet Premium Connection Service customers who are designated as Downstream Customers (DCustomers), whereby they resell Internet access services to customers of their own via their Internet connection, Provider will only provide domain name registration and secondary DNS administration for the DCustomer’s own domain names, not for those of the DCustomer’s customers. Provider will provide secondary DNS administration for domain names registered to customers of the DCustomer only in those cases where the primary DNS administration for those domain names is being provided directly by the DCustomer.
S. Network News Feed. Network News represents a forum of groups that conduct national and international dialogues on over 20,000 topics. Millions of people throughout the world participate in this electronic bulletin board. The forum allows people to post and read about new findings, products, services, etc., or provide and access commentaries within a special interest group or to a wide audience. Provider offers both comprehensive and selective customer access to these news groups.
As a prerequisite to the Network News Feed Service, the customer must install a news server at their premises; news reading software should also be installed on the customer’s desktop PCs and/or workstations as appropriate. Once the server is in place and the Internet service is established, Provider feeds (downloads) customer-selected news information from Provider’s central news server to the customer’s server via Network News Transfer Protocol (‘‘NNTP’’), where it is then available to be read by all authorized users on the customer’s internal network. Note that network news articles are never directly accessed by clients’ news reading software from Provider’s central news server, but rather all news must be read from the customer’s news server.
Provider works with the customer to determine whether the size of the Internet access line is sufficient to meet the customer’s network news requirements. Provider continues to track the customer’s evolving use of news feeds and makes recommendations on upgrading access line bandwidth to keep pace with news feed requirements. As a point of reference, a full network news feed may consume an average sustained bandwidth of approximately 256 kbps; many Internet customers select partial news feeds both to conserve bandwidth as well as to limit their employees’ access to non-critical subject materials.
Internet customers may dynamically, and on their own, make changes to the list of news groups fed from Provider’s server at any time using a Provider-supplied news feed configuration tool called ICIS.
T. Network Usage Reporting. Network Usage Reporting represents a traffic summary that allows customers to track their communications circuit’s utilization and peak activity periods. With this information, customers can proactively plan access line bandwidth upgrades as overall utilization grows. The usage report is provided weekly and details access line utilization as a percentage of available bandwidth during the course of the week. As this information is collected from the CPE router using Simple Network Management Protocol (‘‘SNMP’’) tools, Premium Service customers who wish to receive these reports must provide Provider with SNMP read-only access to their router.
The standard reporting format for usage reports is a PostScript file sent to Internet customers via e-mail. When downloaded to a PostScript-capable laser printer, this file is converted to a graph that displays average access line utilizations for every 15-minute period over the course of the previous week. The points on the graph represent the maximum of inbound and outbound utilizations during each 15-minute collection interval.
U. E-mail Bouncer. E-mail bouncer is a utility that permits customers to self-test the configuration of an SMTP mail host. It confirms the correct formatting of SMTP e-mail for RFC 821 (envelope sender) and RFC 822 (reply-to) compliance to ensure that customer e-mail can be reliably delivered and replied to from other Internet hosts. Upon completing configuration of an SMTP mail host, the customer sends a message to the e-mail bouncer through the Internet. The e-mail bouncer issues an automatic reply, thereby confirming that formatting in the configuration is correct.
V. SMTP Mail Replay. Some types of SMTP gateways require a smart host to deliver outgoing (from the customer’s site) Internet e-mail. These include the Microsoft Mail SMTP gateway and some of the cc:Mail gateways. Provider provides an Internet mail relay host dedicated to routing outgoing e-mail for customers with these SMTP gateways. If necessary, the mail relay host will temporarily store undeliverable e-mail sent from a customer site to an unreachable Internet destination. The mail relay host will attempt to deliver this e-mail until successful, or until the mail process times out.
Provider does not support inbound mail relay, whereby undeliverable incoming Internet e-mail destined for an Internet customer would be stored on a Provider server until the customer’s e-mail server was available to accept mail.
W. Network Time Protocol. Provider provides network time protocol (‘‘NTP’’) stratum-2 service.
X. Optional Advanced Service. The following optional advanced service is available to Internet Premium Connection Service customers at an additional charge.
Y. Primary Domain Name Service. Translation tables of domain names (e.g., xyz.com) to underlying numerical Internet addresses and vice versa are configured and maintained on primary domain name servers; secondary domain name servers maintain mirror-images of primary domain name servers, thereby providing both a backup and load sharing function. During normal Internet operations, both primary and secondary domain name servers perform the actual translations. Therefore, establishment of primary DNS administration is a prerequisite for each Internet presence. Premium level customers may administer their own primary DNS, or purchase this service from Provider. Provider engineers work with Premium level customers who purchase primary domain name service to develop and implement a primary DNS strategy. Once in place, changes to the primary DNS database are performed by Provider during normal business hours and limited to an average of one request per week. The primary DNS package is a superset of the secondary DNS support included for all Premium level customers (see section [number] above). The primary DNS package includes all of the functionality of the secondary DNS package, with the addition of primary DNS administration. Premium Service customers may purchase additional primary DNS in units of [number] domains ([number]-packs).
For those Internet Premium Connection Service customers who are designated as DCustomers, whereby they resell Internet access services to customers of their own via their Internet connection, Provider will only provide primary DNS administration for the DCustomer’s own domain names, not for those of the DCustomer’s customers.
Z. Flexible Pricing. Customers whose access speed is 56 kbps pay a fixed monthly operations service fee independent of their utilization characteristics.
Provider offers flexible T1 (1.544 Mbps), 10 Mbps, and T3 (45 Mbps) pricing. Under flexible pricing, ongoing operations service fees vary by month, depending upon the actual inbound and outbound traffic levels of the customer.
The calculation of flexible charges is based on a peak burst algorithm. Total inbound and outbound traffic is measured every 15 minutes throughout the one-month billing period. The value of each 15-minute sample is then assigned based on the maximum of the inbound and outbound data rates for that 15-minute interval. The highest 5% of these samples are disregarded, leaving a 95th percentile peak burst, which is then used to establish the utilization level for billing purposes. For example, in a 30-day month, there are 2,880 15-minute samples. Applying the 95th percentile rule, the 144 highest samples (representing 36 hours of peak customer usage over the course of the month) are disregarded, leaving 2,736 samples. For billing purposes, the peak rate is set at the level of the 2,736th sample for that one-month period.
Note that all traffic in a 15-minute interval is averaged out across that period. In most cases, there will be high bursts Interspersed with periods of lower activity within that 15-minute period. As a result, the peak measurement for that period will generally be lower than transient peaks actually attained during that 15-minute period. In other words, traffic would need to be sustained at 1.5 Mbps for the full fifteen minutes in order to be measured at the 1.5 Mbps rate.
Under this flexible pricing algorithm, Provider has observed that many customers with T1 Internet access circuits exhibit 95th percentile peaks for billing purposes within the 128 kbps and 256 kbps usage bands.
Some customers using T1 or T3 access may choose to cap the maximum level at which they peak as a means of controlling monthly charges. The cap is affected by setting the CSU/DSU clock speed of T1 lines to 64, 128, 256, 384, or 768 kbps; T3 circuits may be capped at multiples of 3 Mbps (up to 30 Mbps). Customers with utilization falling into flexible pricing bands below the capped speed are billed at the lower applicable price.
3. Service Period
A. Selected Service Period. The Service Period shall be [number] (#) year unless a longer Service Period is selected below.
________[number] Years
________[number] Years
B. The Service Period shall commence on activation of Internet Connection Service and extend for the Service Period selected above.
C. Customer’s selecting a [number] or [number] year Service Period may terminate Internet Connection Service prior to the expiration of the Service Period effective as of the last day of the then-current annual period by providing [number] ([##]) days prior notice. In the event of such early termination, Customer shall refund all multi-year discounts received; pay an additional penalty of [#]% of the estimated price of the canceled portion of the Service Period and reimburse Provider for any telephone line cancellation charges incurred by Provider as a result of such early termination.
D. Upon expiration of the Service Period, this Attachment shall automatically extend on a [period]-to-[period] basis at then-current list prices unless either party provides written notice of termination at least [number] ([##]) days prior to the expiration of the Service Period. The month-to-month period may be terminated (a) by either party providing the other at least [number] ([number]) days prior written notice, or (b) upon the commencement of any new Service Period as may be agreed upon by the parties.
4. Price and Billing
A. Pricing.
1. Annual Recurring Fees.
[insert fees]
2. One Time Fees.
[insert fees]
B. Operations Service/Line Speed Cap.
Operations Service/Line Speed under this Agreement is not capped at fractional T-3 level unless selected below.
If an Operations Service/Line Speed Cap is selected, indicate the cap below:
[insert]
C. Billing.
1. Provider’s pricing is structured such that Customer is charged based on actual bandwidth used. On activation of the Internet Connection Service, Provider will issue an invoice to Customer for the Service Activation Fee, other applicable one-time fees and the Operation Service Fee for the first month of the Service Period. On a monthly basis, Provider will determine Customer’s actual bandwidth usage and invoice customer at the rate in Part [section number] as above.
2. Provider will invoice Customer on a monthly basis for LEC charges in addition to Operation Service Fees. In addition, Internet registration fees are the responsibility of Customer and will be billed directly to Customer by the InterNIC.
D. Price Protection. Provider will not increase prices charged to Customer during the Service Period. In the event Provider decreases its prices during the Service Period, Provider shall reduce the prices set forth in this Attachment effective on commencement of the next annual period.
E. Customer Responsibilities. Customer shall be responsible for the following with respect to the Internet Connection Service
1. Maintaining an organization which is trained and qualified to configure, install and support IP connection service for Customer Customers;
2. handling all communications to and business relations with Customer Customers related to the Internet Connection Service including, but not limited to, providing technical support to and handling inquiries and questions from Customer Customers about IP connection services. Provider shall have no obligation or responsibility to respond to any questions or requests, or to address any problems brought to its attention by Customer;
3. entering into written agreements with Customer Customers which are valid and binding in accordance with local law which agreements contain, at a minimum, the terms set forth in Schedule A, Flowdown Provisions. In the case of Customer Reseller Customer, Customer shall obligate such Customer Reseller Customer to enter into written agreements with its customers which contain, at a minimum, the terms set forth in Schedule A., Flowdown Provisions;
4. providing primary DNS for Customer Customers (at its option, Customer can purchase primary DNS service from Provider at then-current prices);
5. using the BGP4 Routing Protocol to route traffic through the Internet Connection Service and to implement a routing and addressing plan which makes efficient use of Internet address space and appropriate use of international telephone circuits; and
6. obtaining its own membership in associations and/or organizations which may be required for complete Internet connectivity (e.g., the Commercial Internet Exchange Association.