AGREEMENT FOR TELECOMMUNICATIONS SERVICE

Transcription

1 ^PAETEC AGREEMENT FOR TELECOMMUNICATIONS SERVICE This sets forth the terms of the Agreemen^t ("Agreement") made this day of, 2002 by and between PaeTec Communications^, Inc., a Delaware corporation with offices at 600 Willowbrook Office Park, Fairport, New York ("PaeTec"), and The Century Plaza Hotel a Corporation wi^th its principal office at 2025 Avenue of^] the Stars. Los Angeles^. CA ("Customer"). SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 1 of PROVISION OF TELECOMMUNICATIONS 4. SERVICES. Subject to the terms and conditions set forth in this Agreement, PaeTec shall provide, or arrange for the provision, of one or more of the following, as indicated below and subject to the additional terms and conditions set forth in the relevant named Schedule(s), attached hereto and made a part hereof: [^"I Schedule A (term, etc.) ^Q Long distance telecommunications service ("LD Service Agreement") 5. ^Q Local telecommunications service ("Local Sales Order Form") [~1 "Internet Access Service" [~] "Access Traffic Routing and Compensation Arrangement" G "DTI Card Reimbursement" f~j "Additional Terms" As used in this Agreement, "Services" shall mean any and all telecommunications services provided by PaeTec to Customer under this Agreement 2. TERM. The term of this Agreement shal^l be as described on Schedule A ("Term"), unless earlier terminated as provided in this Agreement. After completion of this Agreement, this Agreement shall continue in full force and effect on a month to month basis until canceled by either Party giving thirty (30) days written notice to the other Party. 3. TERMINAT^ION. Either party may terminate this 7 - Agreement in the event of a breach of any provision of this Agreement by the other Party, provided that written notice is given to the breaching Party specifying the nature of the breach, and further provided that the breaching Party fails to cure such breach within thirty (30) days from the date of receipt of such notice. This Agreement may be terminated by either party at any time upon ^n^i^n^et^y (^j^*^f^f)-days prior written notice, in the event there is a change^/in business or economic circumstances which has a materially adverse effect on the ^8. terminating party. 6. Page 1 RATES/COMMISSIONS. This Agreement is subject to PaeTec's applicable tariffs, all of which are hereby incorporated by reference. Unless otherwise specified on Attachment A, Customer shall be billed and pay PaeTec the standard business rate of PaeTec for each telephone line or item of service that Customer shall require. Customer acknowledges that the line charges and tariffed rates are subject to change. PaeTec will notify Customer of any such changes. Commissions to Customer shall be pursuant to the terms set forth in Attachment A hereto. MINIMUM USE GUARANTEE. a) Certain Services may be subject to a Minimum Use Guarantee ("MUG"), as indicated on Attachment A. For each month Customer agrees to pay the greater of (i) the total amount otherwise due for the Service under this Agreement for the month, or (ii) the MUG. b) Should Customer terminate this Agreement or ^the relevant Service other than for a material breach by PaeTec pursuant to Section 3 above, Customer shall be liable for the MUG multiplied by the number of months remaining in the term, unless Customer converts to another PaeTec service with equal or greater term and minimum usage commitments. FORCE MAJEURE. Neither Party shall be liable for any delay or failure in performance of any party of this Agreement, other than for any delay or failure in an obligation to pay money, to the extent such delay or failure is caused by fire, flood, explosion, accident, war strike, embargo, government^al requirement, civil or military authority, Act of God, inability to secure materials or labor of any other causes beyond their reasonable control. Any such delay or failure shall suspend this Agreement until the Force Majeure ceases and the term shall be extended by the length of the suspension. RELATIONSHIP OF PARTIES. Neither this Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between PaeTec and Customer. The Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act. LIMITATION OF LIABILITY. IN NO EVENT SHALL PAETEC BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL

2 SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 2 of 14 OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMERS, CLIENTS OR GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR THE PERFORMANCE OR N ON PERFORMANCE HERE- UNDER. THE LIABILITY OF PAETEC WITH RESPECT TO THE INSTALLATION (INCLUDING DELAYS), PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR R^ESTORATION OF ANY SERVICE 12 OR FACILITIES OFFERED UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THIS AGREEMENT FOR THE PERIOD DURING WHICH SERVICES WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY RECURRING CHARGES, THE LIABILITY OF PAETEC IS LIMITED TO AN AMOUNT EQUAL TO THE PROPORTIONATE MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH SERVICE WAS AFFECTED, 9. WARRANTIES. PAETEC WILL USE REASONABLE EFFORTS UNDER THE CIRCUMSTANCES TO MAINTAIN ITS OVERALL NETWORK QUALITY. THE QUALITY OF SERVICE PROVIDED HEREUNDER SHALL BE CONSISTENT WITH OTHER COMMON CARRIER I^NDUSTRY STANDARDS, GOVERNMENT REGULATIONS AND SOUND BUSINESS PRACTICES. PAETEC MAKES NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED HEREUNDER, EXPRESSED OR IMPLIED^, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. NOTICES. All notices and communications under this Agreement shall be in writing and shall be given by personal delivery, by registered or certified mail, return receipt requested, or by facsimile transmission, addressed to the respective Party as se^t forth on Schedule A, or to such other address as may be designated in writing by such Party. Notice shall be deemed given upon receipt. 11. WAIVER. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consen^t^ is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of. a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of, any subsequent breach or default. 13. ASSIGNMENT. Neither this Agreement, nor any rights or obligations under it, may be assigned by Customer without the prior written consent of PaeTec, which consent shall not be unreasonably withhe^ld, MODIFICATION OF AGREEMENT. This Agreement, including its Schedule(s), may on^ly be amended, modified or supplemented by a separate written document duly executed by authorized representatives of both Parties. 14. PARTIAL INVALIDITY. If any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the Parties shall promptly attempt to negotiate a substitute therefor. 15. ENTIRE AGREEMENT. This Agreement, together with the attached Schedule(s) or Attachment(s), represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service. 16. GOVERNING LAW. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of New York. CUSTOMER^^ **SEE SIGNATURE BLOCK ^#C PAETEC COMMUNICATIONS^, INC. (Next Page) By: Print Name:^,T ^ja^lvv Title:. Date: Print Name: ***SIGNATURE ^BLOCKi THE CENTURY ^PLA^ZA ^HOTEL ^& SPAi Pivo^tal C^entury ^Placa Hotel^, L^LC^» ao Ownc ^D^yi^WESTI^MNO^RTH AMERICA MANAGEMENT CO.^, I^to Managing Ag^ent Page 2 Title: Date:

3 ^SIGNATURE BLOCK ^#C PIVOTAL CENTURY PLAZA HOTEL^, L.L.C., a Delaware ^Limited Liability Company By: Pivotal CPH I, L.L.C., an Ari^zona Limited Liability Company Its: Administrative Member SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 3 of 14 By: Pivotal Group X^, L.L.C., an Arizona Limited Liability Company Its: Managing Member By: J. Jahm Najafi, Trustee of the Jahm ^Najafi Trust dated July 30^, 1996 Its: Administrative Member

4 Schedule A TERM. ETC. The following information applies to the Agreement for Telecommunications Se^n^dee between PaeTec and Customer, of which this Schedule is a part: ^Initial Term: [One 1 Year] or [Two 2 years] commencing from the installation of service Monthly Minimum Use Guarantee: $ beginning when local service commences. SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 4 of 14 Notice Addresses: If to PaeTec: PaeTec Communications 600 Willowbrook Office Park Fairport, New York Attn: Jack Baron^-President^, North Phone: (716) Fax: (736) with a copy to: PaeTec Communications, Inc. 600 Willowbrook Office Park Fairport, New York Attn: General Counsel Phone: (716) Fax: (716) If to Customer: [List Property Address] The Century Plaza Hotel 2025 Avenue of the Stars Los Angeles, CA Attn: Property Controller with a copy to: Starwood Hotels & Resorts Worldwide, Inc IT-Technology Center 1505/1515 Washington Street Braintree, MA Attention: Mr. R. ^Klingseis Page 3

5 ADDITIONAL TERMS In addition to the terms and conditions contained in the Agreement for Telecommunications Service between PaeTec and The Century Plaza Hotel (^"Customer") and all other schedules thereto (the '^'Agreement"), the following terms and conditions apply. These Additional Terms shall take precedence over any conflicting provision in the Agreement. A. Minimum Use Guarantee. The Minimum Use Guarantee (MUG) referred to in Sections 5 of the Agreement shall be set forth on Schedule A and shall be calculated based on the sum of the currently applicable monthly recurring charges for all local loops then being provided to Customer, including associated EUCL charges and fifty percent of anticipated usage charges based on the Customer's most recent ann^ual historical usage figures as provided to PaeTec by the Customer. B. Service Level Agreement. The attached Service Level Agreement shall apply to the services provided hereunder. SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 5 of 14 C. The following new provisions are hereby added to the Agreement (i) Taxes and surcharges. In addition to the rates and charges for the Service(s), Customer shall be responsible for payment of all sales, use, gross receipts^, excise and other local, state and federal taxes, fees, charges or surcharges (including without limitation any universal service fund or other similar surcharges that PaeTec and other telecommunications carriers collect from similarly situated customers), however designated, imposed on or based upon the provision, sale or use of the Services, excluding taxes based on PaeTec's net income. (ii) Bil^ling and Payment. Billing for a Service shall commence on the earlier of: (i) use of the Service by Customer; or (ii) thirty (30) days a^f^ter delivery of the Service to Customer's service address. All bills are due and payable upon receipt. If Customer's bill is not paid within thirty (30) days after the invoice date listed on the bill, Customer also shall pay PaeTec a monthly late charge amount equal to 1.5% of the unpaid balance due (or such lesser amount as is the maximum amount permitted under applicable law) provi^de^d thai in the event the date of receipt of any invoice is more than five (5) days a^f^ter the invoice date listed on the bill, Customer, upon notification to PaeTec (which notice shall include the date of the invoice and date of receipt), shall be given an additional period of time to pay the invoice equal to the difference between the invoice date and the date of receipt. All bills are presumed accurate, and shall be binding on Customer unless notice of the disputed charge(s) is received by PaeTec within ninety (90) days after the invoice date. If PaeTec initiates legal proceedings to collect any amoun^t d^ue hereunder and PaeTec substantially prevails in such proceedings then Customer shall pay the reasonable attorneys' fees and costs incurred by PaeTec in prosecuting such proceedings and any appeals therefrom; provided further, that if Customer shall substantially prevail in such legal proceedings then PaeTec shall similarly pay the reasonable attorney's fees and costs incurred by Customer. Page 4

6 (iii) Unauthorized use. (a) Customer expressly acknowledges and agrees that except as follows or when there is a bona fide dispute filed in accordance with the provisions of Section C(ii) above, it shall make payment in full to PaeTec for all Services provided by PaeTec pursuant to this Agreement, provided that claims for fraudulent or unauthorized usage shall not constitute a valid basis for a dispute unless the dispute is timely filed in accordance with the provisions of C(ii) hereof and is ultimately determined to be based on PaeTec's failure to comply with the provisions of subsection (c) of this Section C(iii). SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 6 of 14 (b) Customer and PaeTec shall cooperate reasonably to prevent and cure unauthorized use of the Services provided hereunder and inform each other expeditiously of suspected abuse and, when known, the identity of the responsible individuals. Each party shall use, with the same due care and diligence that each party would exercise for itself, all reasonable effort to prevent, identify or cure unauthorized use. Such reasonable efforts include taking reasonably appropriate action (which may include blocking access to particular calling numbers or geographic areas) to prevent or terminate any^f^raudor abuse in connection with the Services, or any use thereof^, provided, however, that any such action shall be consistent with applicable federal and state laws, rules and regulations. Upon receipt of a request from Customer, PaeTec shall use all reasonable efforts to promptly identify and, at Customer's request, report to appropriate law enforcement authorities the originating number or address of any threatening or abusive communication transmitted to Customer via a PaeTec Service. The parties shall, upon request, assist each other reasonably in the preparation and presentation of relevant information to federal, state or local officials for the purpose of prosecuting those individuals responsible for the abuse or misuse of the Services provided hereunder. The parties shall also assist each other reasonably in all legal actions that one or both of them may bring against third parties responsible for the abuse or misuse of the Services provided hereunder. For the avoidance of doubt, nothing herein shall alter Customer's obligations, subject to the provisions of subsection (c) of this Section C(iii), to be responsible for all charges arising from ^f^raudulent or unauthorized use of the Services provided by PaeTec to Customer. (c) Notwithstanding anything herein, Customer shall not be liable for unauthorized or fraudulent usage to the extent that (i) Customer notified PaeTec of the problem; (ii) the problem was within PaeTec's reasonable ability to correct or prevent, and (iii) PaeTec negligently or willfully failed to correct or prevent unauthorized or fraudulent usage. Furthermore, Customer shall not be liable if such unauthorized or fraudulent usage was by PaeTec or its agents. (iv) Tariff Filing Requirements Notwithstanding anything herein to the contrary, throughout the term of this Agreement, PaeTec shall take all steps necessary to ensure that it may lawfully fulfill its obligations under this Agreement and the Master Agreement for Telecommunications Service dated May 27, 1999, between PaeTec and Starwood Hotels & Resorts Worldwide, Inc^., as amended, (the "MSA"), including (without limitation) all obligations regarding the provision of Page 5

7 Services, the application of fees, rates and charges, terms and conditions^, and payment of any commissions. Within sixty (60) calendar days after the execution of this Agreement or any amendment hereto (or such shorter period of time as required by applicable law), PaeTec shall make such initial filings as required by law to permit PaeTec to provide the Services and make enforceable (as required by applicable law) the fees, commissions, rates and charges, and terms and conditions set forth herein and in the MSA and shall promptly make any supplemental filings as required by the appropriate regulatory agency. PaeTec shall promptly provide Customer with a copy of all such filings. If PaeTec fails to make such filing, or any portion of this Agreement or the MSA is not enforceable because it is not tariffed, or is not properly tariffed^, PaeTec shall amend its tariff(s) to ensure that Customer incurs no liability or increased financial responsibility due to PaeTec's failure to make a proper tariff filing. If PaeTec fails to make amendments within thirty (30) calendar days after being informed (regardless of the source) of the deficiency, Customer may terminate this Agreement without liability on thirty calendar days written notice to PaeTec, unless PaeTec cures the default during said thirty (30) day period. PaeTec shall indemnify Customer and its affiliates for the actual or alleged liability or increased financial responsibility associated with such failure or action. Any changes to the tariff are subject to Section 4 (Rates and Commissions). SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 7 of 14 D. Section 2 of the Agreement (Term) is hereby revised in the second sentence to read as follows: ^"Unless earlier terminated this Agreement shall continue in full force and effect following the initial Term until canceled by either Party giving at least sixty (60) days written notice to the other Party". E. Section 4 of the Agreement (Rates and Commissions) is hereby revised to read in its entirety as follows: "RATES. This Agreement is subject to PaeTec's applicable tariffs, all of which are hereby incorporated by reference. Unless otherwise specified on the Local Sales Order Form, Customer shall be billed and pay PaeTec the standard business rate of PaeTec for each telephone line or item of service that Customer shall require. Customer acknowledges that the line charges and tariff rates are subject to change. PaeTec will use all commercially reasonable efforts to notify Customer in writing of any such changes at least 30 days prior to their effectiveness. If, as a res^ult of any s^uch change, the prices or other terms, conditions or attributes of Service are materially increased or adversely changed, Customer shall have the option to terminate the Service without liability except for the charges for Service incurred prior to the termination date, by providing written notice to PaeTec not later than sixty (60) days after the change is effective, with such termination to be effective sixty (60) days thereafter, unless PaeTec cures the change within such sixty day (60) period; provided, however, as to any material change in prices for Services the Customer may terminate on five (5) days written notice (unless PaeTec cures the change within such five (5) day period) filed as of or within the sixty days after the date such change becomes effective. Material change in price means an increase in price in one or more instances totaling more than twenty (20) percent over the rates charged to Customer in any one (1) contract year. Page 6

8 F. Section 5 of the Agreement (Minimum Use Guarantee) is hereby revised to read in its entirety as follows: " MINIMUM USE GUARANTEE. a) Certain Services may be subject to a Minimum Use Guarantee ("MUG"), as indicated on Schedule A. For each month Customer agrees to pay the greater of (i) the total amount otherwise due for the Service under this Agreement for the month, or (ii) the MUG. b) Should Customer terminate this Agreement or the relevant Service other than for an uncured breach by PaeTec pursuant to Section 3 of the Agreement or for a change by PaeTec pursuant to Section 4 of the Agreement or pursuant to Section 6 of the Agreement, Customer shall be liable for the MUG multiplied by the number of months remaining in the Term^, unless Customer converts to another PaeTec service with equal or greater term and minimum usage commitments." G. Section 6 of the Agreement (Force Majeure) is hereby revised to delete the last sentence of the section and to add additional sentences to read as follows: SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 8 of 14 "In such event the party claiming Force Majeure shall promptly notify the other party as to the affect of such Force Majeure on its performance and of the actions and timing to eliminate such Force Majeure. If any Force Majeure results in the interruption of any Service which continues for more than thirty (30) days, then Customer may terminate this Agreement as to the affected Service, without liability for any early termination charge as set forth in Section 5(b) of the Agreement, provided that in the event that the Force Majeure Event continues for more than three (3) days and PaeTec cannot promptly provide a temporary substitute for the Service interrupted by the Force Majeure Event, Customer may, at its option, contract with a third party for a substitute for the affected Service, and PaeTec's provision of the PaeTec Services shall be suspended for the reasonable d^uration of any contract with such third party. Customer shall subscribe to the substitute service for the minimum commercially available period and, unless Customer terminates the Agreement because the interruption caused by the Force Majeure continues for more than thirty days, shall move the affected traffic to the restored PaeTec Service as soon as possible. Irrespective of whatever the Service Level Agreement between PaeTec and Customer may provide concerning interruptions of Services and credit allowances, Customer shall have ^no obligation to pay PaeTec for a Service (i) during the period of time the Service is not provided to Customer because of any Force Majeure claimed by or affecting PaeTec or (ii) following termination of the Agreement as to any Service because of any Force Majeure. H. The first paragraph of Section 8 of the Agreement (Limitation of Liability) is hereby revised to read in its entirety as follows: "LIMITATION OF LIABILITY, EXCEPT FOR ANY TERMI^NATION CHARGES DUE FROM CUSTOMER UNDER SECTION 5(b) OF THE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY Page 7

9 SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 9 of 14 DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMERS, CLIENTS OR GOODWILL ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE HEREUNDER." I. Section 12 of the Agreement (Assignment) is hereby revised to read in its entirety as follows: "Neither party may assign this Agreement without the written consent of the other party, which consent shall not unreasonably be withheld or delayed; provi^de^d that no such consent shall be required for any assignment to a corporate parent or affiliate, or in connection with the sale of substantially all of a party's assets." #D (Next Page) CUSTOMER **SEE SIGNATURE BLOCK PAETEC COMMUNICATIONS, INC. Date: By: Print Name: Title: Date: ^***SIGHATURE BLOCKi THE CE^NTURY ^PLA^2A HOTEL ^& C^PA^i Pivot^al Gentui-y ^Pla^za Ho^t^el^, LLC, ag O^wne^r Byi WESTIN ^NORTH AME^RICA MANACKMEWT CO.^, Ito Managing Ag^ent Page 8

10 SIG^NATURE BLOCK ^#D PIVOTAL CENTURY PLAZA HOTEL^, L.L.C., a Delaware Limited Liability Company By: Pivotal CPH I, L.L.C., an Arizona Limited Liability Company Its: Administrative Member SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 10 of 14 By: Pivotal Group X, L.L.C., an Arizona Limited Liability Company Its: Managing Me^mber By: J. Jahm ^Najafi, Trustee of the Jahm Najafi Trust dated July 30, 1996 Its: Administrative Member

11 ^ ^,^«^,,. SERVICE LEVEL AGREEMENT This Service Level Agreement ("SLA^") sets forth the provisions and commitments relating to service quality between PaeTec Communications, Inc. ("PaeTec"), and The Century Plaza Hotel (^"Customer"). This SLA is hereby added as a schedule to the Agreement for Telecommunications Service ("Agreement") between Customer and PaeTec. A) General Standard. PaeTec will use reasonable efforts under the circumstances to maintain its overall network quality. The quality of service provided hereunder shall be consistent with other common carrier industry standards, government regulations and sound business practices. SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 11 of Interruptions in Service. Interruptions in service, which are not due to Customer's negligence or non-compliance with the provisions of the Agreement (including all schedules attached thereto)^, or the operation or malfunction of facilities, power, or equipment provided by Customer, will be credited to Customer as set forth below for the part of the service that the interruption affects. A credit allowance will be made when an interruption occurs because of a failure of any component furnished by PaeTec under this Agreement. 3. Credit for Interruptions. An interruption period begins when Customer reports a service, facility, or circuit to be interrupted through the opening of a trouble ticket and makes it available for testing and repair. An interruption period ends when the service, facility, or circuit is operative. If Customer reports a service, facility, or circuit to be inoperative but declines to make it available for testing and repair, it is considered to be impaired, but not interrupted. a) For calculating credit allowances, every month is considered to have 30 days. A credit allowance is applied on a pro rata basis against the rates specified in the Agreement and is dependent upon the length of the interruption. Only those facilities on the interrupted portion of the circuit will receive a credit. b) A credit allowance will be given for interruptions of 30 minutes or more, upon written request of the customer no later than ten (10) business days after the occurrence of the outage to either Customer^'s PaeTec Account Manager (if applicable) or to the PaeTec customer support center in Fairport, New York. Credit allowances will be calculated as follows: c) if the interruption continues for less than 24 hours: i) l/30th of the monthly rate if it is the first interruption in the same billing period. ii) 2/30ths of the monthly rate if there was a previous interruption of at least 24 hours in the ^same billing period. d) if the interruption continues for more than 24 hours, 1/30 of the monthly rate for the first 24 hours and 2/30ths of such rate for each additional 24 hours (or fraction thereof); however, if service is interrupted for over 24 hours, more than once in the same billing Page 9

12 period, the 2/30ths allowa^nce applies to the first 24 hours of the second and subsequent interruptions e) Two or more interruptions of thirty minutes or more during any one 24- hour period shall be considered as one interruption. f) Termination Right for Chronic Service Quality Problems. Customer shall have the right to terminate any Service subject to a Chronic Service Quality Problem upon thirty days written notice to PaeTec. As used herein, the term ^"Chronic Service Quality Problem" shall mean: (i) any one Interruption lasting more than three (3) days or (ii) five or more Interruptions, regardless of the duration of each individual Interruption, in any thirty day period. For the purpose of applying this provision, Customer must document in writing (through the opening of a trouble ticket) the Interruption with PaeTec as soon as Customer becomes aware of the problem. In the event of a termination for a Chronic Service Quality Problem, Customer only shall be responsible for the payment of charges for the Service incurred prior to the termination date. The foregoing shall not apply to any equipment or EFS arrangements (including any telecommunications services included therein) purchased by Customer from PaeTec. SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 12 of Ma^ximum Credit. Credits attributable to any billing period for interruptions of service shall not exceed the total charges for that period for the service and facilities furnished by PaeTec rendered useless or substantially impaired. The credits set forth in this SLA shall be PaeTec's sole liability and Customer's sole remedy in the event of any interruption. Unless otherwise specifically provided in this Agreement, under no circumstances shall an interruption be deemed a breach of the Agreement. 5. "Interruption'^' Defined. For the purpose of applying this provision, the word "interruption" (whether capitalized or not) shall mean a complete loss of service resulting in the inability to complete calls or the inability to transmit/receive IP datagrams (either incoming or outgoing or both) for a continuous period of more than thirty (30) minutes. "Interruption" does not include and no allowance shall be given for service difficulties such as slow dial tone, circuits busy, latency or other network and/or switching capacity shortages. Nor shall the interruption allowance apply where service is interrupted by the negligence or willful act of Customer or where PaeTec, pursuant to the terms of the Agreement, suspends or terminates service because of nonpayment of bills due to PaeTec, unlawful or improper use of the facilities or service, or any other reason covered by the Agreement. No allowance shall be made for interruptions due to electric power failure where, by the provisions of this Agreement, Customer is responsible for providing electric power. Allowance for interruptions of measured rat^e service will not a^f^fect Customer's local call allowance during a given billing period. 6. Limitations on Credit Allo^wances. No credit allowance will be made for: a) interruptions arising from the acts or omissions of, or non-compliance with the provisions of the Agreement or any schedule thereto (including without limitation this SLA, the Internet Standard Terms and Conditions or Acceptable Use Policy) by, Customer or any authorized user, or any interruptions due to any party other than PaeTec or for events Page 10

13 happening on any other party's network, including b^ut not limited to internet service providers or other common carriers connected to, or providing service connected to, the service of PaeTec or to PaeTec's facilities; b) interruptions due to the failure or malfunction of non-paetec equipment, including service connected to Customer provided electric power; c) interruptions of service during any period in which PaeTec is not given full and free access to its facilities and equipment for the purpose of investigating and correcting interruptions; d) interruptions of service during any scheduled maintenance period or when Customer has released service to PaeTec for maintenance purposes or for implementation of a C^ustomer order fora change in service arrangements; SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 13 of 14 e) interruptions of service due to force majeure events beyond the reasonable control of PaeTec or Customer. Page 11

14 Century Plaza Hotel May-02 Current Carrier Ty^ee o^f T^raffic Local* Intralata Line Charges (121) EUCL(121) Total Minut^es CPM $ $ $20.91 each $4.40 each PaeTec Service iqlal^gast ^>'^* Typ^e. of Traffic $ 3, Loca^l $ $ $532^.40 ^t Intralata IXC Terminating*" ^i Techpath (3) EUCL(3) $ 6, ; Total ^"Loca^l Includes Zone 1 ^& 2 thru Zone 3. **Day Rate Blended- see attached proposai for evening/night/weekend rates. *** IXC Terminating is estimated Pricing based on a 24 month agreement. The rate for IXC Terminating is 40% of.02 until 7/02 and.015 through July 03 '. Mio^nl^ss ,000 $302 each ^ PM^** $ $ $ each Monthly Savings Annua^l Savings Cost $ 2, $ $ (600,00) $906 $ $ 3, $ 3, $ 37, SmartDigitalVault: OPERATIONS, 0 ALL RECORDS, AGREEMENT FOR TELECOMMUNICATIONS SERVICES Page 14 of 14