Exhibit 10.16


 


MASTER SERVICE AGREEMENT


 


This Master Service
Agreement (this “Agreement”) is entered into this 15th day of July, 2004 (“Effective
Date”) by and between LEVEL 3 COMMUNICATIONS, LLC (“Level 3”) and Vonage
Holdings Corp. (“Customer”).


 


ARTICLE 1.
DEFINITIONS


 


1.1.                              “Affiliate” shall mean an entity that now or
in the future, directly or indirectly controls, is controlled by, or is under
common control with, a party to this Agreement. For purposes of the foregoing, “control”
shall mean the ownership of (i) greater than fifty percent (50%) of the
voting power to elect the directors of the company, or (ii) greater than
fifty percent (50%) of the ownership interest in the company.


 


1.2.                              “Connection Notice” shall mean a written
notice from Level 3 that the Service ordered has been installed by Level 3
pursuant to the Customer Order, and has been tested and is functioning
properly.


 


1.3.                              “Customer Commit Date” shall mean the date
that Service will be available to Customer, as set forth in the Customer Welcome
Letter or such other written notice from Level 3 to Customer. Notwithstanding
anything in this Agreement or any Customer Order to the contrary, no Customer
requested date for delivery of Service will be effective unless and until
confirmed in writing by Level 3 through the delivery to Customer of the
Customer Commit Date. See Section 2.2(B) for overly long CCD.


 


1.4.                              “Customer Order” shall mean a request for
Service submitted by Customer in the form designated by Level 3.


 


1.5.                              “Customer Premises” shall mean the location
or locations occupied by Customer or its end users to which Service is
delivered.


 


1.6.                              “Customer Welcome Letter” shall mean a
written communication from Level 3 to Customer informing Customer of Level 3’s
acceptance of the Customer Order.


 


1.7.                              “Excused Outage” shall mean any outage,
unavailability, delay or other degradation of Service related to, associated
with or caused by scheduled maintenance (as described in Section 2.7
hereof), actions or inactions of Customer or its end users, Customer provided
power or equipment or an event of force majeure as defined in Section 7.1.


 


1.8.                              “Facilities” shall mean any property owned,
licensed or leased by Level 3 or any of its Affiliates and used to deliver
Service, including terminal and other equipment, conduit, fiber optic cable,
optronics, wires, lines, ports, routers, switches, channel service units, data
service units, cabinets, racks, private rooms and the like.


 


1.9.                              “Gateway” shall mean data center space owned
or leased by Level 3 or any of its Affiliates for the purpose of, among other
things, locating and colocating communications equipment.


 


1.10.                        “Local Loop” shall mean the connection
between Customer Premises and a Level 3 Gateway or other Facility.


 


1.11.                        “Megabit per second” or “Mbps” shall mean a
unit of data rate equal to 1 million bits per second.


 


1.12.                        “Off-Net” shall mean Service that originates
from or terminates to any location that is not on the Level 3 network.


 


1.13.                        “On-Net” shall mean Service that originates
from and terminates to a location that is on the Level 3 network.


 






Pages where confidential treatment has been requested are stamped,
"Confidential treatment has been requested. The redacted material has been
separately filed with the commission.'' All redacted material has been marked
by an asterisk (*).


 


 


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1.14.                        “Service” shall mean any Level 3 service
described in a Service Schedule and identified on a particular line item
of a Customer Order.


 


1.15.                        “Service Commencement Date” shall mean the
first to occur of (i) the date set forth in any Connection Notice, unless
Customer notifies Level 3 that the Service is not functioning properly as
provided in Section 3.1 (or, if two or more Services are designated as “bundled”
or as having a “sibling relationship” in any Customer Order, the date set forth
in the Connection Notice for all such Services); and (ii) the date
Customer begins using the Service.


 


1.16.                        “Service Levels” shall mean the specific
remedies Level 3 provides regarding installation and performance of Service as
set forth in the particular Service Schedule respecting the applicable
Service.


 


1.17.                        “Service Schedule” shall mean a schedule attached
hereto, or signed between the parties from time to time and expressly
incorporated into this Agreement, setting forth terms and conditions specific
to a particular Service, Facilities or other tools made available by Level 3.


 


1.18.                        “Service Term” shall mean the duration of
time (measured starting on the Service Commencement Date) for which Service is
ordered, as specified in the Customer Order. The Service Term shall continue on
a month-to-month basis after expiration of the stated Service Term, until
terminated by either party upon thirty (30) days’ written notice to the other.


 


ARTICLE 2.
DELIVERY OF SERVICE


 


2.1.                              Submission of Customer Order(s).   To
order any Service, Customer may submit to Level 3 a Customer Order
requesting Service. The Customer Order and its backup detail must include a
description of the Service, the non-recurring charges and monthly recurring
charges for Service and the applicable Service Term.


 


2.2.                              Acceptance by Level 3/
Maximum Customer Commit Date.


 


(A)                              Upon receipt of a Customer Order, if Level 3
determines to accept the Customer Order, Level 3 will deliver a Customer
Welcome Letter for the requested Service. Level 3 will become obligated to
deliver any ordered Service only if Level 3 has delivered a Customer Welcome
Letter for the particular Service. At any time prior to Level 3’s acceptance of
a Customer Order by delivering to Customer a Customer Welcome Letter, Customer may rescind
such Customer Order on written notice to Level 3 without termination liability
of any kind.


 


(B)                                Notwithstanding the terms of Section 3.7(A),
in the event that the Customer Commit Date for any On-Net Service ordered by
Customer is thirty (30) days or more beyond the installation date requested by
Customer as set forth in the Customer Order, Customer may rescind the
Customer Order for such On-Net Service without termination liability upon
written notice to Level 3; provided such notice of rescission is delivered to
Level 3 (by email or other form of written notice as permitted by Section 7.4
hereof to Customer’s account representative and billing@Level3.com) within
three (3) business days following Customer’s receipt of the Customer
Commit Date from Level 3.


 


(C)                                The terms of this Section 3.7 shall in
no event be deemed to waive any right Customer may have under applicable
laws.


 


2.3.                              Credit Approval and Deposits.   Customer
will provide Level 3 with credit information as requested, and delivery of
Service is subject to credit approval. Level 3 may require Customer to
make a deposit or deliver another form of security as a condition to (a) Level
3’s acceptance of any Customer Order; (b) Level 3’s continuation of any
usage-based Service; and/or (c) Level 3’s continuation of any non
usage-based Service only in the event that Customer fails to make payment to
Level 3 of any undisputed amount when due. Any deposit will be limited to two (2) months’
estimated charges for Service and will be due within five (5) business
days of Level 3’s written request. Any deposit will be held by Level 3 as
security for payment of Customer’s charges. When Service to Customer is terminated,
the amount of the deposit will be credited to Customer’s account and any
remaining credit balance will be refunded. Any deposit paid by Customer
pursuant to this Section 2.3 will be held by Level 3 in accordance with
the applicable law governing such deposit.


 


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2.4.                              Customer Premises.   Customer
shall allow Level 3 access to the Customer Premises to the extent reasonably
determined by Level 3 to be necessary for the installation, inspection and
scheduled or emergency maintenance of Facilities relating to the Service. Level
3 shall notify Customer at least two (2) business days in advance of any
regularly scheduled maintenance that will require access to the Customer
Premises. Customer will be responsible for providing and maintaining, at its
own expense, the level of power, heating and air conditioning necessary to
maintain the proper environment for the Facilities on the Customer Premises. In
the event Customer fails to do so, Customer shall reimburse Level 3 for the
actual and reasonable cost of repairing or replacing any Facilities damaged or
destroyed as a result of Customer’s failure. Customer will provide a safe place
to work and comply with all laws and regulations regarding the working
conditions on the Customer Premises. Level 3 personnel having access to
Customer Premises shall abide by all Customer’s posted rules for such
access applicable generally to third party personnel, including without
limitation safety and security rules.


 


2.5.                              Level 3 Facilities.   Except
as otherwise agreed, title to all Facilities shall remain with Level 3. Level 3
will provide and maintain the Facilities in good working order. Customer shall
not, and shall not permit others to, rearrange, disconnect, remove, attempt to
repair, or otherwise tamper with any Facilities, without the prior written
consent of Level 3. The Facilities shall not be used for any purpose other than
in connection with Customer’s purchase of Services and functions ancillary
thereto (as generally accepted in the telecommunications industry). Customer
shall not take any action that causes the imposition of any lien or encumbrance
on the Facilities. In no event will Level 3 be liable to Customer or any other
person for interruption of Service or for any other loss, cost or damage caused
by or related to improper use or maintenance of the Facilities by Customer or
any third party gaining access to the Facilities through Customer in violation
of this Agreement, and Customer shall reimburse Level 3 for any damages
incurred as a result thereof. Customer agrees (which agreement shall survive
the expiration, termination or cancellation of any Customer Order) to allow
Level 3 to remove the Facilities from the Customer Premises:


 


(A)                              after termination, expiration or cancellation
of the Service Term of all the applicable Service(s) in connection with which
the Facilities were used; or


 


(B)                                for repair, replacement or otherwise as Level
3 may determine is necessary or desirable, but Level 3 will use reasonable
efforts to minimize disruptions to the Service caused thereby.


 


(C)                                Upon removal of the Facilities, except where
the Facilities are promptly replaced, Level 3 will promptly restore the
Customer Premises to their original condition, reasonable wear and tear excepted.


 


2.6.                              Customer-Provided Equipment.   Level
3 may install certain Customer-provided equipment upon installation of
Service, but Level 3 shall not be responsible for the operation or maintenance
of any Customer-provided equipment. Level 3 undertakes no obligations and
accepts no liability for the configuration, management, performance or any
other issue relating to any Customer-provided equipment used for access to or
the exchange of traffic in connection with the Service.


 


2.7.                              Scheduled Maintenance.   Scheduled maintenance of the Level 3 network
will not normally result in Service interruption or outage. However, in the
event scheduled maintenance should require a Service interruption or outage,
Level 3 will exercise commercially reasonable efforts to (i) provide
Customer with seven (7) days’ prior written notice of such scheduled
maintenance, (ii) work with Customer in good faith to attempt to minimize
any disruption in Customer’s services that may be caused by such scheduled
maintenance, and (iii) to perform such schedule maintenance
during the non-peak hours of 12:00 a.m. (midnight) until 6:00 a.m.
local time.


 


ARTICLE 3. BILLING AND
PAYMENT


 


3.1.                              Commencement of Billing.


 


(A)                              Upon installation and testing of the Service
ordered in any Customer Order, Level 3 will deliver to Customer a Connection
Notice. Upon receipt of the Connection Notice, Customer shall have a period of
seventy two (72) hours to confirm that the Service has been installed and is
properly functioning. Unless Customer delivers written notice to Level 3 within
such seventy two (72) hour period that the Service is not installed in
accordance with the Customer Order and functioning properly, billing shall
commence on the applicable Service


 


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Commencement Date,
regardless of whether Customer has procured services from other carriers needed
to operate the Service, and regardless of whether Customer is otherwise
prepared to accept delivery of ordered Service. In the event that Customer
notifies Level 3 within the time period stated above that the Service is not
installed and functioning properly, then Level 3 shall correct any deficiencies
in the Service and deliver a new Connection Notice to Customer, after which the
process stated herein shall be repeated.


 


(B)                                In the event Customer (in accordance with Section 3.1(A) above)
delivers written notice to Level 3 within such seventy-two (72) hour period
that the Service is not installed and not functioning properly, Level 3 shall
promptly commence to remedy the defect or failure specified in Customer’s
notice. Thereafter, Level 3 shall again deliver to Customer a Connection Notice
and Customer shall have an additional period of seventy-two (72) hours to
confirm that the Service has been installed and is properly functioning. Subject
to any termination right Customer may have under Section 4.4 hereof,
this procedure shall apply again and successively thereafter until Level 3 has
remedied all material defects or failures in the operation of the Service. Notwithstanding
the foregoing and unless otherwise agreed by the parties, in the event Level 3
has delivered three (3) Connection Notices for a particular Service and
upon conclusion of the third seventy-two (72) hour testing period, the Service
still fails to be installed and functioning properly, Customer shall have the
right to terminate such Customer Order without termination liability upon five (5) calendar
days written notice to Level 3.


 


3.2.                              Charges.   The
Customer Order will set forth the applicable non-recurring charges and
recurring charges for the Service. Unless otherwise expressly specified in the
Customer Order, any non-recurring charges shall be invoiced by Level 3 to
Customer upon the Service Commencement Date. However, in the event such Service
requires Level 3 to install or construct additional Facilities in the provision
of the Service, such Customer Order may specify non-recurring charges that
are payable by Customer in advance of the Service Commencement Date, as
mutually agreed between the parties and specified in the Customer Order. If
Customer requests and Level 3 approves (in its sole discretion) any changes to
the Customer Order or Service after acceptance by Level 3, including, without
limitation, the Customer requested date for delivery of Service or Service
Commencement Date, additional non-recurring charges and/or monthly recurring
charges not otherwise set forth in the Customer Order may apply; provided,
that Level 3 will notify Customer of such additional charges at the time the
change request is made.


 


3.3.                              Payment of Invoices.   Invoices
are delivered monthly. Level 3 bills in advance for Service to be provided
during the upcoming month, except for charges that are dependent upon usage of
Service, which are billed in arrears. Billing for partial months is prorated
based on a calendar month. All invoices are due thirty (30) days after the date
of invoice except that Customer may withhold disputed amounts pursuant to Section 3.6.
Unless otherwise specified on the particular invoice, all payments shall be due
and payable in U.S. Dollars. Past due amounts bear interest at a rate of 1.5%
per month (or the highest rate allowed by law, whichever is less) beginning
from the date first due until paid in full.


 


3.4.                              Taxes and Fees.   All
charges for Service are exclusive of Applicable Taxes (as defined below). Except
for taxes based on Level 3’s net income, property (other than any allowance for
personal property tax expressly set forth in Level 3’s tariff or service guide
and applicable to all Level 3 customers) or employment. Customer will be
responsible for all applicable taxes that arise in any jurisdiction, including,
without limitation, value added, consumption, sales, use, gross receipts,
excise, access, bypass, franchise or other taxes, fees, duties, charges or
surcharges, however designated, imposed on, incident to, or based upon the
provision, sale or use of the Service (collectively “Applicable Taxes”). If
Customer is entitled to an exemption from any Applicable Taxes for a particular
Service, Customer is responsible for presenting Level 3 with a valid exemption
certificate (in a form reasonably acceptable to Level 3). Level 3 will
give effect to any such exemption certificate on a prospective basis from and
after Level 3’s receipt of such exemption certificate.


 


3.5.                              Regulatory and Legal Changes.   In
the event of any change in applicable law, regulation, decision, rule or
order that materially increases the costs or other terms of delivery of
Service, Level 3 and Customer will negotiate regarding the rates to be charged
to Customer to reflect such increase in cost and, in the event that the parties
are unable to reach agreement respecting new rates within thirty (30) days
after Level 3’s delivery of written notice requesting renegotiation, then (a) Level
3 may pass such increased costs through to Customer without mark-up, and (b) if
Level 3 elects to pass such increased costs through to Customer, Customer may terminate
the affected Service


 


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without termination
liability by delivering written notice of termination no later than thirty (30)
days after the effective date of such rate increase.


 


3.6.                              Disputed Invoices/Failure to
Invoice.


 


(A)                              If Customer reasonably disputes any portion
of a Level 3 invoice, Customer must pay the undisputed portion of the invoice
and submit written notice of the claim (with sufficient detail of the nature of
the claim, the amount and invoices in dispute and information necessary to
identify the affected Service(s)) for the disputed amount. All claims must be
submitted to Level 3 in writing within one hundred and twenty (120) days from
the date of the invoice for those Services. Customer waives the right to
dispute any charges not disputed within such one hundred and twenty (120) day
period. In the event that the dispute is resolved against Customer, Customer
shall pay such amounts plus interest at the rate referenced in Section 3.3.


 


(B)                                Except for taxes and fees due under Section 3.4,
if Level 3 fails to invoice Customer as set forth in Section 3.3 above
within one hundred and twenty (120) days of the end of the month in which
Services were provisioned, Customer shall not be obligated to pay Level 3 for
said Service and Level 3 shall forfeit the right to invoice Customer for such
Service.


 


3.7.                            Termination Charges.


 


(A)                              Customer may cancel a Service following
Level 3’s acceptance of the applicable Customer Order and prior to the Customer
Commit Date upon prior written notice to Level 3 (with sufficient detail
necessary to identify the affected Service). In the event that Customer does
so, or in the event that the delivery of such Service is terminated by Level 3
as the result of an uncured default by Customer pursuant to Section 4.2 of
this Agreement, Customer shall pay Level 3 a cancellation charge (as Level 3’s
sole and exclusive remedy for such cancellation) equal to the sum of;


 


(i)                                     any third party cancellation/termination
charges related to the installation and/or cancellation of any Off-Net Service;


 


(ii)                                  Level 3’s out of pocket costs (if any)
incurred in constructing Facilities in or to the Customer Premises necessary
for Service delivery solely to the extent they exceed the non-recurring charges
for the cancelled Service;


 


(iii)                               the * for any cancelled Service; and


 


(iv)                              for (1) On-Net (3)Link® Private Line
Service and (2) On-Net (3)Link® Cross Connect Service and Mondo Condo
Fiber Link Service only, * monthly recurring charges for any such cancelled
On-Net Service and for all other On-Net Services (except (3)Center® Colocation,
(3)CrossRoads® Service, (3)VoIPSM Local Inbound Service, and (3)VoIPSM
Toll Free Service, for which there shall be no charge pursuant to this
paragraph (iv)), one (1) month’s monthly recurring charges for such
cancelled On-Net Service.


 


Customer’s right to
cancel any particular Service under this Section 3.7(A) shall
automatically expire and shall no longer apply upon the later of (x) Level 3’s
delivery to Customer of a Connection Notice for such Service or (y) if two or
more Services are designated as “bundled” or as having a “sibling relationship”
in any Customer Order, Level 3’s delivery to Customer of a Connection Notice
for all such Services.


 


(B)                                In addition to Customer’s right of
cancellation under Section 3.7(A) above, Customer may terminate
Service prior to the end of the Service Term upon thirty (30) days’ prior
written notice to Level 3 (with sufficient detail necessary to identify the
affected Service). In the event that, after either the original Customer Commit
Date (if Customer requests and Level 3 agrees to a delay in delivery of a
particular Service) or Customer’s receipt of the Connection Notice for a
particular Service (whichever occurs first) and prior to the end of the Service
Term, (1) Customer terminates Service other than pursuant to Section 4.3
or under other circumstance giving Customer an express right to terminate or
cancel the Service without liability, or (2) the delivery of Service is
terminated by Level 3


 






* Confidential treatment has been requested. The redacted material has
been separately filed with the Commission.


 


 


 


5

















 


as the result of an uncured
default by Customer pursuant to Section 4.2 of this Agreement, Customer
shall pay Level 3 a termination charge (as Level 3’s sole and exclusive remedy
for such termination) equal to the sum of:


 


(i)                                     all unpaid amounts for Service provided
through the date of termination;


 


(ii)                                  any actual and documented (by either an
invoice showing the amount owed by Level 3 or other evidence reasonably
satisfactory to Customer) third party cancellation/termination charges related
to the installation and/or termination of any Off-Net Service;


 


(iii)                               the non-recurring charges for any cancelled Service,
if not already paid;


 


(iv)                              for any On-Net Service other than those
Services listed in Section 7.12 of this Agreement (as of the Effective
Date) and unless otherwise agreed by the parties hereto in writing, the
percentage of the monthly recurring charges for the terminated On-net Service
calculated from the effective date of termination as (a) * of the
remaining monthly recurring charges that would have been incurred for the
On-Net Service for months 1-12 of the Service Term, plus (b) * of the
remaining monthly recurring charges that would have been incurred for the
On-Net Service for months 13-24 of the Service Term, plus (c) * of the
remaining monthly recurring charges that would have been incurred for the
On-Net Service for months * through the end of the Service Term; and


 


(v)                                 for any On-Net Service listed in Section 7.12
of this Agreement (as of the Effective Date), the percentage of the monthly
recurring charges for the terminated On-net Service calculated from the
effective date of termination as (a) * of the remaining monthly recurring
charges that would have been incurred for the On-Net Service for months 1-12 of
the Service Term, plus (b) * of the remaining monthly recurring charges
that would have been incurred for the On-Net Service for months 13 through the
end of the Service Term.


 


(vi)                              The parties acknowledge and agree that the
terms of Section 3.7(B)(iv) above may be renegotiated upon any
negotiation or execution of a new Service Schedule to this Agreement.


 


(C)                                The parties acknowledge that the cancellation
or termination charges set forth in this Section 3.7 are a genuine
estimate of the actual damages that Level 3 will suffer and are not a penalty.


 


3.8.                              Fraudulent Use of Services.   Customer
is responsible for all charges attributable to Customer incurred respecting the
Service. In the case of usage-based Services, Customer is responsible for all
usage charges even if incurred as the result of fraudulent or unauthorized use
of Service; except that Customer shall not be responsible for fraudulent or
unauthorized use by Level 3 or its employees or contractors.


 


ARTICLE 4. TERM AND
TERMINATION


 


4.1.                              Term.


 


(A)                              This Agreement shall become effective on the
Effective Date and shall continue for a period of two (2) years thereafter
(“Agreement Term”), unless earlier terminated as provided herein. At the end of
the initial Agreement Term, the Agreement Term shall automatically renew on a
month-to-month basis until terminated by either party upon thirty (30) days’
prior written notice to the other party.


 


(B)                                Except as otherwise set forth herein, Level 3
shall deliver the Service for the entire duration of the Service Term, and
Customer shall pay all charges for delivery thereof through the end of the
Service Term. To the extent that the Service Term for any Service extends
beyond the Agreement Term, then this Agreement shall remain in full force and
effect for such Service until the expiration or termination of such Service
Term.


 


4.2.                              Default By Customer.   If (i) Customer
makes a general assignment for the benefit of its creditors, files a voluntary petition
in bankruptcy or any petition or answer seeking, consenting to, or acquiescing
in reorganization, arrangement, adjustment, composition, liquidation,
dissolution or similar relief; (ii) an involuntary petition in bankruptcy
or other insolvency protection against Customer is filed and not dismissed
within sixty (60) days; (iii) Customer fails to make any payment required
hereunder when due, and such failure continues for a period of five


 






* Confidential treatment has been requested. The redacted material has
been separately filed with the Commission.


 


 


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(5) business days after
written notice from Level 3, or (iv) Customer fails to observe and perform any
material term of this Agreement (other than payment terms) and such failure
continues for a period of thirty (30) days after written notice from Level 3;
then Level 3 may:  (A) terminate
this Agreement and any Customer Order, in whole or in part, in which event
Level 3 shall have no further duties or obligations thereunder, and/or (B) subject
to Section 5.1, pursue any remedies Level 3 may have under this
Agreement, at law or in equity.


 


4.3.                              Default By Level 3.   If (i) Level
3 makes a general assignment for the benefit of its creditors, files a
voluntary petition in bankruptcy or any petition or answer seeking, consenting
to, or acquiescing in reorganization, arrangement, adjustment, composition,
liquidation, dissolution or similar relief; (ii) an involuntary petition
in bankruptcy or other insolvency protection against Level 3 is filed and not
dismissed within sixty (60) days; or (iii) Level 3 fails to observe and
perform any material term of this Agreement (other than as provided in Section 4.4
and Article 6) and such failure continues for a period of thirty (30) days
after written notice from Customer; then Customer may:  (A) terminate this Agreement and/or any
Customer Order, in whole or in part, in which event Customer shall have no
further duties or obligations thereunder, and/or (B) subject to Section 5.1,
pursue any remedies Customer may have under this Agreement, at law or in
equity.


 


4.4.                              Right of Termination for
Installation Delay.


 


In lieu of any Service
Level credits for installation delays, if Level 3’s installation of Service is
delayed for more than thirty (30) calendar days beyond the Customer Commit Date
for reasons other than an Excused Outage, Customer may terminate and
discontinue the affected Service upon written notice to Level 3 and without
payment of any applicable termination charge; provided such written notice is
delivered prior to Level 3 delivering to Customer the Connection Notice for the
affected Service. This Section 4.4 shall not apply to any Service where
Level 3 (or a third party contractor engaged by Level 3) is constructing
Facilities in or to the Customer Premises necessary for delivery of such
Service. The parties hereto each acknowledge and agree that no construction of
Facilities in or to Customer Premises for the delivery of Service may be
ordered via a Customer Order, but instead the parties will agree to the terms
of such construction by a written addendum to this Agreement. In developing
such addendum, the parties agree to discuss in good faith pertinent deadlines
for completion of such construction and termination and/or other remedies for
failure to meet such deadlines, provided that such deadlines and remedies will
apply only to the extent incorporated in such addendum.


 


4.5.                              Termination and Bundled
Services.   In the
event that (i) Customer terminates Service pursuant to Section 4.3 or
under other circumstance giving Customer an express right to terminate or
cancel the Service without liability or (ii) Level 3 terminates a service
(other than for Customer default pursuant to Section 4.2) (such Service,
in either case, the “Terminated Service”) and such Terminated Service is
designated as “bundled” or as having a “sibling” or “dependent” relationship to
another Service in any Customer Order for such other Service or other written
communication by Customer to Level 3 prior to Level 3’s delivery to Customer of
the Customer Welcome Letter for such other Service (such other Service, the “Sibling
Service”), then Customer shall have the same right of termination with regard
to the Sibling Service that it, or Level 3, as applicable, has for the
Terminated Service (including, without limitation any time limitations or
notice requirements with regard to Customer’s right to terminate the Terminated
Service); provided, that Customer terminates both the Terminated Service and
Sibling Service at the same time and either under the same notice of
termination to Level 3 as the Terminated Service or by subsequent notice of
termination within five (5) business days after the notice of termination
of the Terminated Service.


 


ARTICLE 5. LIABILITIES AND
INDEMNIFICATION


 


5.1.                              No Special Damages.   Notwithstanding
any other provision hereof other than Section 5.2 and 5.4, neither party
shall be liable for any damages for loss of profits, loss of revenues, loss of
goodwill, loss of anticipated savings, loss of data or cost of purchasing
replacement services, or any indirect, incidental, special, consequential,
exemplary or punitive damages arising out of the performance or failure to perform under
this Agreement or any Customer Order.


 


5.2.                              Personal Injury and Death.   Nothing
in this Agreement shall be construed as limiting the liability of either party
for personal injury or death resulting from the negligence of a party or its
employees.


 


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5.3.                              Disclaimer of Warranties.   LEVEL
3 MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR
BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.


 


5.4.                              Indemnification.   Each
party shall indemnify the other from any claims by third parties and expenses
(including legal fees and court costs) respecting damage to tangible property,
personal injury or death caused by such party’s negligence or willful
misconduct arising in connection with this Agreement.


 


ARTICLE 6. SERVICE LEVELS


 


6.1.                              Service Interruptions and
Delivery.   To report issues related to Service performance,
Customer may contact Level 3 Customer Service by calling toll free in the
U.S. 1-877-4LEVEL3 (1-877-453-8353) or such other numbers for Level 3 Customer
Service in other countries as published on www.level3.com. In order for Level 3
to investigate any reported issues, Customer agrees to provide Level 3 with
supporting information as reasonably requested by Level 3, which may include
(as applicable), without limitation, circuit ID, circuit end-point(s), IP
address(es), originating phone number and terminating phone number. In the
event of any damages arising out of Level 3’s furnishing or failure to furnish
Services under this Agreement, Customer’s sole remedies are contained in (a) the
Service Levels applicable (if any) to the affected Service, (b) the
chronic outage provision (if any) set forth in the Service Schedule applicable
to the affected Service, and (c) Section 4.4 above.


 


6.2.                              Service Level Credits.   In
the event Level 3 does not achieve a particular Service Level in a particular
month, Level 3 will issue a credit to Customer as set forth in the applicable
Service Schedule upon Customer’s request. Level 3’s maintenance log and
trouble ticketing systems will be used for calculating any Service Level events.
To request a credit, Customer must contact Level 3 Customer Service or deliver
a written request (with sufficient detail necessary to identify the affected
Service) pursuant to Section 7.4 within sixty (60) days of the end of the
month for which a credit is requested. Level 3 Customer Service may be
contacted by calling toll free in the U.S. 1-877-4LEVEL3 (1-877-453-8353) or
such other numbers for Level 3 Customer Service in other countries as published
on www.level3.com. In no event shall the total amount of credits issued to
Customer per month exceed the non-recurring charges and monthly recurring
charges invoiced to Customer for the affected Service for that month.


 


ARTICLE 7. GENERAL TERMS


 


7.1.                              Force Majeure.   Neither
party shall be liable, nor shall any credit allowance or other remedy be
extended, for any failure of performance or equipment due to causes beyond such
party’s reasonable control (“force majeure event”). In the event Level 3 is
unable to deliver Service as a result of a force majeure event, Customer shall
not be obligated to pay Level 3 for the affected Service for so long as Level 3
is unable to deliver the affected Service and in the event such inability
persists for more than thirty (30) consecutive days, Customer may terminate
the affected Service without liability upon prior written notice to Level 3;
provided Level 3 has not resumed delivery of the affected Service prior to
Customer’s delivery to Level 3 of such written notice of termination.


 


7.2.                              Assignment and Resale.   Neither
party may assign its rights and obligations under this Agreement or any
Customer Order without the express prior written consent of the other party,
which will not be unreasonably withheld except that either party may, without
such consent, assign this Agreement or any Customer Order to any of its
Affiliates. This Agreement shall apply to any permitted transferees or
assignees. Notwithstanding any assignment, Customer shall remain liable for the
payment of all charges due and Level 3 shall remain liable for the performance
of all its obligations under each Customer Order; except Customer shall be
released from all future payment obligations accruing under any Customer Order
assigned to an Affiliate of Customer, provided such Affiliate receives credit
approval by Level 3 and/or pays to Level 3 a creditworthiness deposit as
reasonably requested by Level 3. Customer may use the Service in providing
voice over IP services to its customers provided that Customer agrees to
indemnify, defend and hold Level 3 harmless from claims made against Level 3 by
such customers of Customer.


 


8

















 


7.3.                              Affiliates.


 


(A)                              Service may be provided to Customer
pursuant to this Agreement by an Affiliate of Level 3, including, without
limitation, an Affiliate authorized to provide Service in a country other than
the country within which this Agreement has been executed. If a Customer Order
requires the delivery of Service in a jurisdiction where, in order for such
Customer Order to be enforceable against the parties, additional terms must be
added, then the parties shall incorporate such terms into the Customer Order
(preserving, to the fullest extent possible, the terms of this Agreement). Notwithstanding
any provision of Service to Customer pursuant to this Agreement by an Affiliate
of Level 3, Level 3 shall remain responsible to Customer for the delivery and
performance of the Service in accordance with the terms and conditions of this
Agreement.


 


(B)                                The parties acknowledge and agree that
Customer’s Affiliates may purchase Service under this Agreement; provided,
however, any such Customer Affiliate purchasing Service hereunder agrees that
such Service is provided pursuant to and governed by the terms and conditions
of this Agreement. Customer shall be jointly and severally liable for all
claims and liabilities arising under this Agreement related to Service ordered
by any Customer Affiliate, and any event of default under this Agreement by any
Customer Affiliate shall also be deemed an event of default by Customer. Any
reference to Customer in this Agreement with respect to Service ordered by a
Customer Affiliate shall also be deemed a reference to the applicable Customer
Affiliate.


 


(C)                                Notwithstanding anything in this Agreement to
the contrary, either party may provide a copy of this Agreement to its
Affiliate or such other party’s Affiliate for purposes of this Section 7.3,
without notice to, or consent of, the other party.


 


7.4.                              Notices.   Notices
hereunder shall be in writing and sufficient and received if delivered in
person, or when sent via facsimile, pre-paid overnight courier, electronic mail
(if an e-mail address is provided below) or sent by U.S. Postal Service (or
First Class International Post (as applicable)), addressed as follows:


 


IF TO LEVEL 3:


 


For billing
inquiries/disputes, requests for Service Level credits and/or requests for
disconnection of Service (for other than default):


 


Level 3
Communications, LLC

1025 Eldorado Blvd.

Broomfield, Colorado  80021 

Attn:  Director, Billing

Facsimile:  (877) 460-9867 

E-mail:  billing@level3.com


 


For all other
notices:


 


Level 3
Communications, LLC 

1025 Eldorado Blvd.

Broomfield, Colorado  80021 

Attn:  General Counsel

Facsimile:  (720) 888-5128


 


IF TO CUSTOMER:


 


Vonage Holdings
Corp.

2147 Route 27

Edison, New Jersey  08817-3329 

Attn:  Michael Tribolet, EVP, Network
Operations

Facsimile:  732-476-5243


 


or at such other address
as the party to whom notice is to be given may have furnished to the other
party in writing in accordance herewith. All such notices shall be deemed to
have been given on (i) the date delivered if delivered


 


9

















 


personally, (ii) the
business day after dispatch if sent by overnight courier, (iii) the third
business day after posting if sent by U.S. Postal Service (or other applicable
postal delivery service), or (iv) the date of transmission if delivered by
facsimile or electronic mail (or the business day after transmission if
transmitted on a weekend or legal holiday). Notwithstanding the foregoing, any
notices delivered by Level 3 to Customer or vice versa in the normal course of
provisioning of Service hereunder shall be deemed properly given if delivered
via any of the methods described above or via electronic mail to the address
listed on any Customer Order.


 


7.5.                              Acceptable Use Policy.   Customer’s use of Service shall comply with
Level 3’s Acceptable Use Policy and Privacy Policy, as communicated in writing
to Customer from time to time and which are also available through Level 3’s
web site at www.level3.com. Level 3 will notify Customer of complaints received
by Level 3 regarding each incident of alleged violation of Level 3’s Acceptable
Use Policy by Customer or third parties that have gained access to the Service
through Customer. Customer agrees that it will promptly investigate all such
complaints and take all necessary actions to remedy any actual violations of
Level 3’s Acceptable Use Policy. Level 3 may identify to the complainant
that Customer, or a third party that gained access to the Service through
Customer, is investigating the complaint and may provide the complainant with
the necessary information to contact Customer directly to resolve the complaint.
Customer shall identify a representative for the purposes of receiving such
communications.


 


7.6.                              Data Protection.   During
the performance of this Agreement, it may be necessary for Level 3 to
transfer, process and store billing and utilization data and other data
necessary for Level 3’s operation of its network and for the performance of its
obligations under this Agreement. The transfer, processing and storing of such
data may be to or from the United States. Customer hereby consents that
Level 3 may (i) transfer, store and process such data in the United
States; and (ii) use such data for its own internal purposes as allowed by
law. This data will not be disclosed to third parties.


 


7.7.                              Contents of Communications.   Level
3 shall have no liability or responsibility for the content of any
communications transmitted via the Service (except for content solely created
by Level 3), and Customer shall defend, indemnify and hold Level 3 harmless
from any and all claims (including claims by governmental entities seeking to
impose penal sanctions) related to such content or for claims by third parties
relating to Customer’s use of Service. Level 3 provides only access to the
Internet; Level 3 does not operate or control the information, services,
opinions or other content of the Internet. Customer agrees that it shall make
no claim whatsoever against Level 3 relating to the content of the Internet or
respecting any information, product, service or software ordered through or
provided by virtue of the Internet other than the Services expressly provided
by Level 3 under this Agreement.


 


7.8.                              Marks and Publicity.


 


(A)                              Neither party shall have the right to use the
other party’s or its Affiliates’ trademarks, logos, service marks or trade
names without the prior written consent of the other party. The marks used in
this Agreement and referenced as such are either registered service marks or
service marks of Level 3 Communications, Inc., its Affiliates or third
parties in the United States and/or other countries.


 


(B)                                Neither party shall issue any press release
relating to any contractual relationship between Level 3 and Customer, except
as may be required by law or agreed between the parties in writing.


 


7.9.                              Non-Disclosure.   Any
information or documentation disclosed between the parties during the
performance of this Agreement shall be subject to the terms and conditions of
the applicable non-disclosure agreement then in effect between the parties.


 


7.10.                        (INTENTIONALLY LEFT BLANK).


 


7.11.                        Governing Law.   This
Agreement shall be governed and construed in accordance with the laws of the
State of New York, U.S.A., without regard to its choice of law rules.


 


7.12.                        Entire Agreement.   This
Agreement, including any Service Schedule(s) and Customer Order(s) executed
hereunder, constitutes the entire and final agreement and understanding between
the parties with respect to the


 


10

















 


Service and supersedes all
prior agreements relating to the Service, (including without limitation those
certain Terms for Delivery of Service as modified by the Addendum dated May 25,
2001 between Level 3 and Min-X.com, Inc. a predecessor entity of
Customer), which are of no further force or effect. The Service Schedules
attached hereto are listed below:


 


Service Schedule– (3)Link® Private Line Service


Service Schedule– (3)Center® Colocation


Service Schedule– (3)Link® Cross Connect Service and

Mondo Condo Fiber Link Service


Service Schedule– Online Customer Service Center


Service Schedule– (3)CrossRoads® Service


Service Schedule– (3)VoIPSM Local Inbound
Service


Service Schedule– (3)VoIPSM Toll Free
Service


 


All Service Schedules,
whether attached hereto or executed between the parties after the Effective
Date, are integral parts hereof and are hereby made a part of this
Agreement.


 


7.13.                        Amendment.   This
Agreement, and any Service Schedule or Customer Order, may only be
modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party. Without limiting the generality of the
foregoing, any handwritten changes to a Customer Order or any terms and conditions
included in any Customer-provided purchase order shall be void unless
acknowledged and approved in writing by a duly authorized representative of
each party.


 


7.14.                        Order of Precedence.   In the event of any conflict between this
Agreement and the terms and conditions of any Service Schedule and/or
Customer Order, the order of precedence is as follows:  (1) first, the Service Schedule, (2) second,
this Agreement, and (3) third, the Customer Order.


 


7.15.                        Survival.   The
provisions of this Article 7 and Articles 3, 5 and 6 and any other
provisions of this Agreement that by their nature are meant to survive the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.


 


7.16.                        Relationship of the Parties.   The
relationship between Customer and Level 3 shall not be that of partners,
agents, or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including, without limitation, for federal
income tax purposes.


 


7.17.                        No Waiver.   No failure by either party to enforce any
right(s) hereunder shall constitute a waiver of such right(s).


 


7.18.                        Severability.   If
any provision of this Agreement shall be declared invalid or unenforceable
under applicable law, said provision shall be ineffective only to the extent of
such declaration and such declaration shall not affect the remaining provisions
of this Agreement. In the event that a material and fundamental provision of
this Agreement is declared invalid or unenforceable under applicable law, the
parties shall negotiate in good faith respecting an amendment hereto that would
preserve, to the fullest extent possible, the respective rights and obligations
imposed on each party under this Agreement as originally executed.


 


7.19.                        Joint Product.   The
parties acknowledge that this Agreement is the joint work product of the
parties. Accordingly, in the event of ambiguities in this Agreement, no
inferences shall be drawn against either party on the basis of authorship of
this Agreement.


 


7.20.                        Third Party Beneficiaries.   This Agreement shall be binding upon, inure
solely to the benefit of and be enforceable by each party hereto and their
respective successors and assigns hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any thirty party any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.


 


11

















 


7.21.                        Counterparts. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the
same instrument. Facsimile signatures shall be sufficient to bind the parties
to this Agreement.


 


IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the Effective Date written above.


 


	
  LEVEL 3 COMMUNICATIONS, LLC (“Level
  3”)

  	
  VONAGE NETWORK INC.
  (“Customer”)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ John Ryan

  	
   

  	
  By

  	
  /s/ Michael Tribolet

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
  John Ryan

  	
   

  	
  Name

  	
  Michael Tribolet

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
  SVP

  	
   

  	
  Title

  	
  Executive Vice President of Operations

  	
   

  



 


12














 


SERVICE SCHEDULE

EMERGENCY CALL ROUTING SERVICE


 


This Service Schedule for
Emergency Call Routing Services (“Service Schedule”) is entered into this 29th
day of August, 2005 (“Effective Date’) by and between LEVEL 3 COMMUNICATIONS,
LLC (“Level 3”) and VONAGE NETWORK INC. (“Customer”). This Service Schedule is
governed by and subject to the Master Service Agreement between Level 3 and
Vonage Holding Corp. dated July 15, 2004 (“Agreement”), and is hereby
incorporated into and made a part of the Agreement. To The extent that the
terms of this Service Schedule conflict with the terms of the Agreement,
the terms of this Service Schedule shall govern.


 


WHEREAS Level 3 maintains
and is building a 911 Service platform, including connectivity by Level 3 to
911 Selective Routers across a portion of the Vonage Footprint; and


 


WHEREAS Customer seeks
access to Level 3’s 911 Service platform so that, in connection with
services offered by Customer and others, Customer’s End Users may place
911 Calls and receive 911 Services from Customer; and


 


WHEREAS the Parties wish
to enter into an agreement whereby Level 3 and Customer will establish, as
described herein, the necessary functionality, connectivity, selective routing,
and other features designed to enable End User 911 Calls to reach Covered PSAPs
and provide location and call back number information within the areas served
by Covered PSAPs, thus enabling 911 Service.


 


1.                                      DEFINITIONS.   Capitalized terms used and not otherwise
defined below shall have the meanings set forth in the Agreement.


 


“911 Call” means a
telephone call placed by an End User dialing “9-1-1” seeking 911 Service.


 


“911 Selective Router”
means the telephone switch or functional equivalent, controlled by the relevant
local exchange carrier (LEC), which determines the PSAP to which a 911 Call
should be delivered based upon the ESQK that is derived based on the Registered
Location of the End User.


 


“911 Service” means
functionality allowing an End User to contact the PSAP servicing the geographic
area in which the End User is located, and includes “Enhanced” functionality
providing the PSAP with the capability to determine the End User’s address and
call back telephone number (where the PSAP has such capability).


 


“911 Supported PSAPs”
shall mean: a) the * PSAPs (identified at Exhibit “B” hereto (covering 66%
of US Households as of the Effective Date)) which, as of the Effective Date
support the termination of 911 Calls delivered by Level 3 through direct
wireline trunking (but do not yet support ECR Services); plus b) * presently
unknown PSAPs (covering an additional 3% of US Households (and which will be
added to Exhibit B by Level 3 upon notification to Customer identifying
such PSAP’s)) which will, following the Effective Date, also support the
termination of 911 Calls delivered by Level 3 through direct wireline trunking
(but will also not immediately support ECR Services). Based on the foregoing,
there are a total of * 911 Supported PSAPs (which will cover 69% of US
Households). Level 3 intends to support the termination of 911 Calls through
direct wireline trunking to a total of 72% of US Households by December 31,
2005; those PSAPs comprising the difference between Level 3’s coverage of 69%
and 72% of U.S. Households (which ultimately become Covered PSAP’s) shall be
included in the fees for ECR Service stated in Section 4 of this Service Schedule below
and are meant to cover contemplated growth of the relationship between the
parties. Level 3 and Customer shall, consistent with this Service Schedule, use
commercially reasonable efforts to convert 911 Supported PSAPs to Covered
PSAPs.


 


“Automatic Location
identification” or “ALI” shall mean the automatic display at the PSAP of the
caller’s telephone number, the address/location of the telephone and, in some cases,
supplementary emergency services information.


 


“Automatic Number
Identification” or “ANI” shall mean the telephone number associated with the
access line from which a 911 Call originates. The ANI telephone number must be:
(i) ten-digits and (ii) follow the North American Numbering Plan
Administration (NANPA) numbering guidelines.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


1

















 


“Covered End Users” shall
mean Customer’s End Users whose Registered Locations are served by a Covered
PSAP (whether or not Customer uses ECR Service in connection with such End
Users).


 


“Covered PSAP” shall mean
a 911 Supported PSAP for which Level 3 provided ESRN’s and Level 3 or Customer
provided ESQK’s have been provisioned within the Selective Router Database
(SRDB) and as shell records in the ALI database by Customer’s VPC and the PSAP
has agreed to support 911 Calls in accordance with the ECR Service description
in Section 2 using ESQK’s and ESRN’s (such that the PSAP is supported by
Level 3’s ECR Service). Customer has requested that Covered PSAPs also include
911 Supported PSAPs which do not, or do not yet, support dynamic ALI (i.e. the
PSAP cannot query Customer’s VPC with an ESQK to determine an End User’s
Registered Location); Level 3 will support Customer’s request, provided that
Level 3’s ECR Services will be provided in the same manner whether or not
Covered PSAPs support or do not support dynamic ALI.


 


“Customer IP Gateway”
shall mean the Customer controlled facilities at which Customer delivers 911
Calls to Level 3.


 


“Emergency Call Routing”
or “ECR” Service is defined in Section 2.


 


“End User” means a person
or entity using a Customer provided VoIP application or service.


 


“ESQK” means Emergency
Services Query Key. An ESQK is a Rate Center or PSAP level, NANPA formatted
telephone number provided to Customer by Level 3 * which is thereafter
provisioned as a shell record in the ALI Database by Customer’s VPC and which:
i) can be queried by a 911 Selective Router to determine the PSAP to which a
911 Call should be routed and ii) when queried by the PSAP, designates the VPC
that may be queried with the ESQK to obtain the applicable End User’s
address and call back telephone number. Unless otherwise agreed between the
parties, ESQK’s provided by Level 3 to Customer hereunder shall be dedicated
for Customer’s use, unless a PSAP prohibits Level 3 from providing its
customers *, such ESQK’s may only be provided in connection with Covered
PSAPs and shall not be utilized by Customer until Customer has notified Level 3
in writing *. Customer and Level 3 will work cooperatively to resolve any
problems or errors respecting *.


 


“ESRN” means Emergency
Service Routing Number. An ESRN is a Level 3 provided routing number which,
based on the physical location of the End User placing a 911 Call, must be
provided back to Level 3 by Customer in the SIP header for the 911 Call setup
for routing of the call by Level 3 to the appropriate 911 Selective Router.


 


“Public Safety Answering
Point” or “PSAP” shall mean an answering location for 911 Calls originating in
a given area. PSAPs are typically a common bureau used to answer emergency
calls and dispatch public safety agencies such as police, fire, emergency
medical, etc. A PSAP may be designated as primary or secondary, which
refers to the order in which calls are directed for answering, i.e., primary
PSAPs answer calls; secondary PSAPs receive calls on a transfer basis.


 


“Rate Center” shall mean
a geographic area (determined by the applicable ILEC) within a market or local
calling area that is associated with one or more specific NPA/NXX codes.


 


“Registered Location”
shall mean the most current known physical location for any End User, as
provided to Customer (or its contractor(s)).


 


“Term” shall mean a
period of time commencing on the Effective Date and continuing until December 31,
2008, Section 4.1 of the Agreement notwithstanding.


 


“Tier 1 Support” shall
mean the handling of all initial call inquiries/trouble reports including
trouble shooting directly with the originator of those requests.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


2

















 


“U.S. Households” shall
mean the number of households in the continental United States (not including
Hawaii and Alaska) as measured by the sum of 2004 mapinfo data for all U.S.
Rate Centers.


 


“VoIP” means Voice over
Internet Protocol.


 


“Vonage Footprint” shall
mean the areas served by PSAPs in which Customer provides VoIP application or
service calling capability to End Users.


 


“VoIP Positioning Center”
or “VPC” shall mean an entity contracted by Customer to perform certain of
the functions described herein.


 


2.                                      SERVICE
DESCRIPTION.   ECR Service
provides: i) routing by Level 3 of an End User 911 Call from the Customer IP
Gateway to the 911 Selective Router serving a Covered PSAP for the End User’s
Registered Location (such 911 Selective Router being determined by Level 3
solely by the ESRN supplied by Customer in the relevant 911 Call signaling);
and ii) delivery by Level 3 of the ESQK supplied by Customer in the relevant
911 Call signaling to such 911 Selective Router *. The 911 Call will thereafter
be carried from the 911 Selective Router (along with the ESQK) to the
appropriate Covered PSAP (such Covered PSAP being determined by the Selective
Router based on the ESQK provided to such 911 Selective Router) on facilities
controlled by the LEC. Level 3 does not control routing or facilities provided
by the LEC or other third parties (and such elements are not part of the
ECR Services); provided, however, that Level 3 shall use commercially
reasonable efforts (assuming the cooperation of applicable third parties) to
work with the LEC or other third party providing such routing or facilities to
minimize and resolve actual or anticipated service affecting issues, including
without limitation, provisioning, maintenance and PSAP trunk call failure(s).


 


ECR Service is a call
routing and termination service only, including maintenance and support
responsibilities for such functions. ECR Services will not independently
provide 911 Services; however, when used in connection with the services
provided by Customer and other of Customer’s third party suppliers (including
VPC’s and LEC’s), ECR Services are designed to assist Customer in supplying 911
Services to its End Users. ECR Service shall be considered a “Service” as
defined in the Agreement though not designated in a Customer Order. As of the
date on which a 911 Supported PSAP becomes a Covered PSAP and thereafter
throughout the Term of this Service Schedule, ECR Services will be available
from Level 3 in such Covered PSAP for all End Users whose Registered Location
is within the area served by such Covered PSAP. The 911 Supported PSAPs which
Level 3 anticipates will become Covered PSAPs are identified in Exhibit “B”,
which will be updated by Level 3 from time to time.


 


As ESQKs are provided to
Customer, Level 3 shall build, maintain and provide to Customer an ESQK routing
table detailing ESQK to Covered PSAP correlations. Level 3 shall notify
Customer of changes and updates to the routing table within three (3) business
days of such changes and/or updates, or as promptly as possible in light of the
circumstances. Upon mutual agreement between the parties, Level 3 will provide
to Customer an ESRN routing table detailing ESRN to 911 Selective Router
correlations.


 


Level 3 agrees that Section 4.2(iv) of
the Agreement notwithstanding, if Customer fails to observe and perform a
material term of the Agreement (other than as respects payment terms) unrelated
to the ECR Services, that Level 3 will not have any right to terminate the ECR
Services or the Agreement as it relates thereto, and that after the applicable
cure period, that Level 3 may only terminate the Agreement (or applicable
Customer Orders) as respects all non-ECR Services. Level 3 may terminate
the ECR Services: i) in accordance with Section 4.2(iv) of the
agreement only as respects uncured material defaults respecting the ECR
Services; ii) Section 4.2(iii) of the Agreement notwithstanding, if
any payment not being reasonably disputed in accordance with Section 3.6
of the Agreement remains unpaid or undisputed for a period of fifteen (15)
business days after written notice from Level 3; and iii) otherwise in
accordance with Sections 4.2(i) and (ii) of the Agreement.


 


3.                                      RESPONSIBILITIES
OF THE PARTIES.


 


(A)                              Level 3 Responsibilities.   Subject
to the other terms and conditions of the Agreement and this Service Schedule,
including SLAs and other related Attachments, Level 3 will provide ECR Service
to Customer during the


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


3

















 


Term. As it relates to Section 3.1
of the Agreement, Level 3 and Customer acknowledge that such Service has been
ordered by Customer and accepted by Level 3.


 


Level 3 will supply to
Customer and Customer’s VPC (unless otherwise agreed in writing) ESQKs for 911
Supported PSAPs where the VPC (in cooperation with Level 3) causes the 911
Supported PSAP to become a Covered PSAP, and will supply ESRNs for the 911
Selective Routers servicing the 911 Supported PSAPs as of the milestone date
set forth in Section 3(C)B of this Service Schedule. For each Covered
PSAP, the appropriate number of ESQKs will be allocated based upon the minimum
criteria for establishing functionality to each individual PSAP’s service
bureau. *. If warranted by traffic volume growth over the Term of the Service
Schedule, or if upon request by a Covered PSAP, Level 3 shall promptly assign
the appropriate number of additional ESQKs to be allocated to each Covered PSAP
as may be appropriate under the circumstances.


 


For facilities controlled
by Level 3, Level 3 shall be responsible for all capacity, design, and trunk
level provisioning (including any trunk level provisioning required to support
the use of ESRN/ESQK values) and maintenance in accordance with industry
standards, and will be responsible for augmenting capacity and trunking related
to the ECR Service, based on Customer’s historic demand, with consideration
given to Customer’s forecasted demand and the historic accuracy of such
forecasts.


 


If Level 3 establishes
911 Supported PSAP coverage in excess of 72% of US Households at any time
during the Term, Level 3 will make such additional coverage available to
Customer on terms and conditions as are mutually agreed between the parties.
Throughout the Term, Level 3 shall promptly notify Customer of any changes to
Level 3’s Covered PSAP’s, including providing to Customer a non-binding,
rolling six (6) month forecast of PSAPs Level 3 expects to become Covered
PSAPs.


 


All state and federal
regulatory compliance and reporting related to the ECR Service (and not
addressed specifically under the Customer Responsibilities section of this
Service Schedule below), including without limitation the payment of any
and all related fees, surcharges or cost-recovery charges (if any), shall be
the sole responsibility of Level 3. If at any time during the Term, the ECR
Service is determined by the F.C.C., or court or arbitrator of competent
jurisdiction, to be non-compliant for the purposes of providing 911 Services,
Level 3 will exercise commercially reasonably reasonable efforts under the
circumstances to make adjustments to the ECR Service to bring it into
compliance with the applicable regulatory requirements. If Level 3 fails to
bring ECR Service into compliance within a mutually agreed to timeframe (or a
timeframe established affirmatively by the F.C.C., or court or arbitrator of
competent jurisdiction), Customer may terminate the affected ECR Service
and Customer’s fees shall be adjusted in accordance with Section 4 below
for any associated reduction in Covered End Users.


 


Level 3 shall designate
Level 3-provided ECR Service related facilities and trunk groups as being used
for 911 Services with appropriate naming conventions, and for repair and
maintenance purposes, shall treat any such facilities at parity with the
priority associated with ECR Services provided to any other Level 3 customer.
Level 3 shall work promptly and in good faith to correct any known or
reasonably knowable defects that exist on Level 3’s side of the demarcation
between the Customer IP Gateway and the Level 3 network. Level 3 will utilize
commercially reasonable practices for the establishment of facility and trunk
level diversity for connectivity from the IP Customer Gateway to the 911
Selective Routers, such that connectivity to the 911 Selective Routers will
maintain an industry standard level of resilience. On or before October 12,
2005, Level 3 will deliver to Customer a plan detailing the deployment of *,
and will deploy * (provided that Level 3 may periodically *, communicating
such updates to Customer). Level 3 will also indicate to Customer where * is
not reasonably available and will update Customer from time-to-time *.


 


Level 3 shall notify
Customer in writing of any scheduled application or software upgrades
respecting the ECR Service at least * days in advance of such upgrade. Level 3
shall continue to support *.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


4

















 


until Customer has fully
tested and completed its conversion *, provided that Customer works
cooperatively and in good faith *.


 


Level 3 will supply the
ECR Services in accordance with the Service Levels set forth in Exhibit “A”
hereto; Level 3 will provide Customer the Service Level credits stated therein
applicable to the stated levels of service quality. If Level 3 fails to meet
any Service Level, then in addition to any other rights or remedies that
Customer may have under the Agreement and/or this Service Schedule, or
under applicable law (as limited by the Agreement and/or this Service
Schedule), Level 3 shall, at no charge to Customer, (i) investigate the
report on the causes of the problem, (ii) advise Customer, and to the
extent reasonably requested by Customer, of the status of remedial efforts
being undertaken with respect to such problems, (iii) work in good faith
using commercially reasonable/industry standard approaches to correct the
problem until the problem is resolved, and begin meeting the Service Levels as
soon as practicable, and (iv) take appropriate preventive measures to
avoid recurrence of the problem.


 


(B)                                Customer Responsibilities.   Subject
to the other terms and conditions of the Agreement and this Service Schedule,
including SLAs and other related Attachments, and subject to Customer’s demand
for ECR Service from Level 3 (provided that demand other than that anticipated
shall not affect Customer’s payment obligations to Level 3 as stated in Section 4
of this Service Schedule), Customer will purchase ECR Service from Level 3
during the Term.


 


Customer shall be
responsible for providing, at its cost, all facilities and the Customer network
required to operate with and interconnect to the ECR Service up to (and
including) the Customer IP Gateway, at which point all facilities, network and
other costs related to the provision of ECR Service shall be borne by Level 3.
For all 911 Calls delivered to Level 3 for routing in accordance with the ECR
Service at the Customer IP Gateway, Customer shall transmit to Level 3, an
accurate and current ESQK (provided in the Domestic P-Asserted Identity field
of the SIP header for the 911 Call setup) in e.164 format including the “+”
sign proceeding the “1” followed by the ten digit number and ESRN (provided in
the URI Field of the SIP header for the 911 Call setup) in e.164 format
including the “+” sign proceeding the “1” followed by the ten digit number,
such that, given the then current Registered Location of the End User placing
the 911 Call: i) Level 3 routes the 911 Call (in accordance with Section 3(A) above)
to the 911 Selective Router serving the Covered PSAP associated with the End
User’s Registered Location; ii) when Level 3 provides the 911 Selective Router
the ESQK supplied by Customer, the 911 Selective Router selects and routes the
911 Call to the correct Covered PSAP to which the 911 Call should be delivered;
and iii) the Covered PSAP can (where capable of doing so), through queries of
the ALI Database and Customer or its VPC, obtain the End User’s accurate and
current Registered Location and call back telephone number information. For
clarity, the foregoing requires, among other things, that Customer, or Customer’s
VPC (using Customer’s NENA ID, where applicable): i) input, validate and
maintain all ESQK’s provided by Level 3 in and to the ALI Database and SRDB;
ii) enable and maintain an electronic interface requiring an End User to, before
such End User is able to use Customer’s VoIP application, input, and in the
event of any change in an End User’s Registered Location (other than within the
same address), update, all End User information required by the ALI Database in
a format acceptable to the PSAP; and iii) input, validate (including
immediately resolving any input failures/rejections) and maintain, on a real
time basis, all information submitted by End Users as required by the ALI
Database. Customer (or its VPC) shall be responsible to provide all Tier 1
support as respects PSAP inquiries made with respect to 911 Calls made by
Customer’s End Users, and any inquiries to Level 3 respecting the same may be
forwarded for immediate response by Customer to 732-528-2697; provided, however,
that Level 3 shall work cooperatively and in good faith with Customer to
resolve such inquiries.


 


Provided that Level 3
provides an accurate mapping of ESQKs to Covered PSAPs, Customer shall use
commercially reasonable efforts not deliver any 911 Call to Level 3 for
termination where the End User’s Registered Location is not within an area
served by a Covered PSAP. Customer acknowledges that if it delivers a 911 Call
to Level 3 for termination where the End User’s Registered Location is not
within an area served by a Covered PSAP, that the call may be ultimately
delivered to the incorrect PSAP, and that Level 3 shall have no liability
whatsoever for such 911 Calls; provided that in the event any such calls are
inadvertently delivered to the Level 3 network, the Level 3 NOC shall promptly
notify the Vonage NOC of the occurrence.


 


Unless otherwise agreed
between the parties in writing ECR Services shall not be re-sold by Customer on
a stand alone basis to third parties; provided that Customer may sell VoIP
services to End Users or as a part of a wholesale, bundled VoIP service
offering to customers who are not End Users which incorporate the ECR Services.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the Commission.


 


5

















 


Customer shall be
responsible for establishing (or causing its VPC to establish) appropriate
relationships with PSAP’s causing 911 Supported PSAPs to become Covered PSAPs,
including causing such PSAPs to permit i) the provisioning of ESQK’s within the
SRDB and as shell records in the ALI database which: a) can be queried by the
applicable 911 Selective Router to determine the PSAP to which a 911 Call
should be routed and b) (except where the applicable 911 Supported PSAP does
not, or does not yet, support dynamic ALI), when queried by the PSAP, requires
the ALI database to query the applicable VPC with the ESQK to obtain the
applicable End User’s address and call back telephone number (provided the PSAP
has the capability to do so). Level 3 will cooperate with Customer and its VPC
in connection with the foregoing.


 


All state and federal
regulatory compliance and reporting related to the VoIP application or service
calling capabilities offered by Customer to its End Users shall be the sole
responsibility of Customer, and Level 3 shall not be responsible for any fees,
surcharges or cost-recovery charges relating to Customer’s service’s, including
any 911 Service component thereof, (provided that Level 3 shall remain
responsible for any fees, surcharges or cost-recovery charges relating to the
ECR Service (if any)). As between Level 3 and Customer, Customer shall be
solely responsible for payment of * and for any charges by VPCs associated with
911 Calls routed to a national call center (where failure of the ECR Service
was not the cause of such routing; *. If any PSAP or taxing authority seeks
payment of any such cost-recovery or funding mechanism from Level 3 that is
properly directed to Customer, Level 3 shall promptly redirect the entity to
Customer, or Customer’s designated agent. In the event Customer fails to timely
pay such charges and the PSAP or taxing authority continues to pursue Level 3
for payment, both parties agree to petition the relevant authority requesting
that they seek to collect such charges directly from Customer. Thereafter, in
the event a PSAP or taxing authority continues to pursue Level 3 for such
charges notwithstanding the foregoing, Customer will indemnify and defend Level
3 from any such claims.


 


Customer shall designate
all Customer provided service related facilities being used for 911 Service
purposes with appropriate naming conventions, and for repair and maintenance
purposes, shall treat such facilities with appropriate priority under the
circumstances. Customer shall work promptly and in good faith to correct any
known or reasonably knowable defects that exist on Customer’s side of the
demarcation between the Customer IP Gateway and the Level 3 network.


 


Custom will provide Level
3 with written, quarterly, non-binding forecasts, containing Customer’s
estimated End User forecasts at the Rate Center level. Level 3 shall take
Customer’s forecasts (and the historic accuracy of the same) into consideration
in the planning and forecasting of ESQK assignments and trunk/capacity
augments.


 


Customer or Customer’s
VPC may agree to assist and/or perform required or helpful actions
(as requested by Level 3) to enable the acquisition by Level 3 of ESQKs from
third parties.


 


Customer shall notify
Level 3 in writing of any scheduled application or software upgrades which may impact
the ECR Services at least forty-five (45) days in advance of such upgrade.
Customer shall continue to support the prior version of the application or
software until Level 3 has fully tested and completed its conversion to the
upgraded application or software, provided that Level 3 works cooperatively and
in good faith to upgrade its systems in a commercially reasonable manner,
provided that such time period shall not exceed six (8) months.


 


(C)                                Joint Responsibilities.   Level
3 and Customer will conduct interoperability testing of the ECR Service and
prior to Customer’s or Level 3’s implementing any software or call flow
upgrade, enhancement or modification thereto. All special configurations sought
by either party are subject to the other party’s prior approval, such approval
not to be unreasonably withheld. Level 3 and Customer agree to negotiate in
good faith modifications to this Service Schedule as may be necessary
to address issues revealed prior to and/or during interoperability testing.


 


Customer and Level 3
agree to work cooperatively to achieve the following ECR Service milestones:


 


A.   *


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


6

















 


 


B.   *


 


C.   *


 


D.   *


 


E.   *


 


Without limiting the
applicability of any available remedies set forth hereunder, the parties will
work cooperatively to isolate, coordinate and restore 911 Service related
problems and to work cooperatively and expeditiously to restore and resolve any
911 Service failure, disruption or outage. The parties further agree that 911
Service related network problem resolution will be managed expeditiously at all
times. In the event of any facility, 911 Selective Router, PSAP, LEC or ECR
Service network related failure, or service degradation or interruption, (or
anticipated failure, degradation or interruption) the parties agree to abide by
the Outage Notification and Escalation process described in Exhibit A
hereto.


 


Each party shall monitor
and perform maintenance through testing and the performance of proactive
maintenance activities such as routine testing, development of and adherence to
appropriate network trouble isolation processes and periodic review of
operational elements for translations, routing and network faults.


 


Each Party shall comply
with all federal, state and local laws applicable to their performance hereunder.


 


(D)                               Call Success/Failure Responsibilities.   When Level 3 delivers a 911 Call to the 911
Selective Router and the 911 Selective Router has accepted the 911 Call for
delivery to the Covered PSAP, the ECR Service will notify the Customer IP
Gateway that the 911 Call has been so delivered by Level 3. If the ECR Service
does not deliver the 911 Call in accordance with the foregoing within five (5) seconds
of delivery of the 911 Call by Customer to Level 3, the ECR Service shall not
respond to the Customer IP Gateway and the 911 Call shall be considered to have
“Timed Out.” Level 3 shall also affirmatively return a 911 Call to Customer at
the Customer IP Gateway in the event that Level 3 determines that the ECR
Service is unable to deliver the 911 Call within five (5) seconds of
delivery of the 911 Call by Customer to Level 3; Level 3 and Customer will work
together to establish mutually


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


7

















 


agreed upon failure codes
for inclusion by Level 3 in 911 Calls returned to Customer, based on industry
standard failure codes. In the event that Customer delivers Level 3 a 911 Call
for routing using the ECR Service and either: i) the call Times Out or ii)
Level 3 returns the 911 Call back to Customer at the Customer IP Gateway, then
Customer shall handle the 911 Call in accordance with industry standard and
accepted backup procedures established by Customer (which may include
re-routing the call by other means).


 


4.                                      CHARGES.   The charges for ECR Services during the Term
are stated below, and are based on the total number of Customer’s End Users
which are physically located (for all or any portion of the relevant month) in
areas served by Covered PSAPs.


 


(a)                                  Non-Recurring Charges


 


For the ECR Service, Customer shall pay Level 3 a
non-recurring charge (“NRC”) of * according to the following payment schedule: (i) $*
on the Effective Date; (ii) $* on the date Level 3 satisfies the milestone
stated in Section 3(C)A above; provided that if such milestone has not
been completed as of September 20, 2005 because Customer or its VPC has
failed to accomplish any element stated on Exhibit “D” needed for the
test, then Customer shall pay Level 3 the $* on September 20, 2005
notwithstanding that such testing has not been yet completed; and (iii) $*
for every * the 911 Supported PSAPs that become Covered PSAPs. For example, if
10% (i.e. *911 Supported PSAPs) become Covered PSAPs, an NRC of $* would be
payable. Level 3 will invoice Customer monthly according to the percentage of
911 Supported PSAPs which have become Covered PSAPs in the prior month. If for
any reason the NRC stated in subpart (ii) immediately above is not
paid as of the date the first 911 Supported PSAP becomes a Covered PSAP, such
payment will become due upon such occurrence.


 


(b)                                 Monthly Recurring Charges


 


The monthly recurring charges payable for the ECR
Service shall follow the rates as stated below for the Term of this Service
Schedule, with Customer paying Level 3 *% of the applicable monthly recurring
charge for every *% of 911 Supported PSAPs that have become Covered PSAPs and
remain Covered PSAPs through the respective billing period. The monthly
recurring charges shall be $* per month from the Effective Date until December 31,
2006; $* per month from January 1, 2007 through December 31, 2007 and
$* per month from January 1, 2008 through December 31, 2008. For
example, if in January, 2006, 50% of the 911 Supported PSAPs have become
Covered PSAPs (and assuming no adjustments in accordance with the immediately
following paragraph), Customer would pay Level 3 a monthly recurring charge for
January, 2006 of $*.


 


If the number of Covered End Users exceeds * in any
month before January 1, 2007, the monthly recurring charges stated above
shall be increased as of the first day of the next month on a prospective basis
for the balance of the Term, to $*; if the number of Covered End Users exceeds *
in any month before January 1, 2008, the monthly recurring charge shall
similarly increase, on a prospective basis for the balance of the Term, to $*.
The monthly recurring charge shall also similarly increase, on a prospective
basis for the balance of the Term, by an additional $* per month for each 1
million Covered End Users (or part thereof) above * in any month (so that,
for example, the monthly recurring charge would be $* as of the first day of
the following month if the number of total Covered End Users was 7,500,001, $*
if the number of total Covered End Users was 8,500,001 and so on). For clarity,
in the event that the monthly recurring charges increase as stated above,
Customer shall only be obligated to pay Level 3 for * of such increased monthly
charge for every * of 911 Supported PSAPs that become Covered PSAPs.


 


Level 3 will bill for ECR Services monthly, based on
the total number of Covered End Users as of the end of the 15th day of each in
the immediately prior month. To determine whether any applicable increase or
decrease in the monthly recurring charges (as contemplated above) applies,
Customer or Customer’s VPC shall, on or before the end of every calendar
quarter during the Term, provide Level 3 with a report indicating the total
number of Covered End Users as of the end of the 15th day of each month in the
preceding quarter. In the event that such report shows that the monthly
recurring charges should have


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


8

















 


increased in a certain month during the prior quarter,
Level 3 will retroactively bill Customer, and Customer shall pay Level 3 all
undisputed portions of such retroactively billed charges, for the applicable
true-up amount (i.e., the difference between what Customer paid Level 3 and
what Customer should have paid Level 3) taking into account Customer’s
subscriber count as of the 15th day of each month in question. In
the event that such report shows that the monthly recurring charges should have
decreased in a certain month during the prior quarter (and Level 3 does not
dispute the same in good faith), Level 3 shall issue a credit to Customer’s
invoice for the month following the quarterly report for the applicable true-up
amount. Level 3 may independently obtain the foregoing information from
Customer’s VPC(s) (and Customer shall contractually require its VPC(s) to
timely comply with requests by Level 3 to obtain such information from the VPC(s)).
Customer shall maintain true and accurate books and records reflecting the
total number of End Users served by Customer and their Registered Locations at
the end of the 15th day of each month for a period of two (2) years from
the end of each month during the Term, and no more than once in any twelve (12)
month period, Level 3 may, at its sole cost and expense, audit such books and
records to verify the accuracy of Customer’s written reports to Level 3,
subject to the audit procedures described in Section 4(d)D below.
Following any such audit (or other determination by Level 3 of incorrect
reporting by Customer), Level 3 may bill Customer for any billing
shortfalls revealed or credit Customer’s account for any overcharges revealed,
plus applicable interest as stated in the Agreement; provided, however, that
Customer shall have the right to dispute such findings in good faith.


 


With respect to Sections 4(a) and (b) immediately
above, in the event that Level 3 has supplied ESRN’s and ESQK’s to Customer, and
appropriate relationships with 911 Supported PSAPs have been established which
would allow them to become Covered PSAPs if the ESQK’s were provisioned within
the SRDB and as shell records in the ALI database by Customer’s VPC as required
by this Service Schedule, such PSAPs will be considered Covered PSAPs for
billing purposes and Customer shall be advised immediately in writing thereof.
Further, if Level 3 has otherwise fulfilled its respective obligations, and
appropriate relationships with 911 Supported PSAPs have been established which
would allow them to become Covered PSAPs, the PSAP’s require MSAG validated End
User information and Customer’s VPC will not agree to supply such MSAG
validated End User information as required, such PSAPs will be considered
Covered PSAPs for billing purposes and Customer shall be advised immediately in
writing thereof. In connection with the above, Level 3 intends to execute an
agreement with Telecommunication Systems, Inc. (“TCS”) pursuant to which
it intends to use reasonable efforts to supply TCS with its existing MSAG
information (without representation as to its accuracy or current ness); while
such agreement will not contain a timeframe under which such information must
be provided, Level 3 acknowledges that it is in its best interests to provide
the same as soon as reasonably possible.


 


(c)                                  Other Level 3 Services


 


Subject to any confidentiality restrictions, Customer
shall, on or before December 1, 2005 provide to Level 3 the range of
pricing which Customer is able to obtain from other carriers offering services
substantially similar to Eligible Services (as defined below). Provided that
Level 3 agrees to provide Customer on or before January 1, 2006, Eligible
Service pricing which is at or below the pricing Customer can obtain from other
carriers offering substantially similar services, then: (i) starting January 1,
2006 and for 24 months thereafter, Customer agrees to pay Level 3 not less than
$* per month for the purchase of Eligible Services; and (ii) starting in
the 25th month until the end of the Term, Customer agrees to pay Level 3 not
less than $* per month for the purchase of Eligible Services. Both (i) and
(ii) above are the “Monthly Other Service Commitment.” “Eligible Services”
are limited to (3)Voice Termination Service, Local Inbound Service and/or (3) Crossroads
Service, or the functional equivalent of such services. The total of the
Monthly Other Service Commitment multiplied by the number of months until the
end of the Term is the “Total Other Service Commitment”. To the extent that
Customer pays Level 3 more than the Monthly Service Commitment in any month,
such additional amount will count toward the Total Other Service Commitment.
Further, if Customer pays Level 3 for Eligible Services delivered to Customer
any time from September 1, 2005 through December 31, 2005, such
purchases shall also reduce the Total Other Services Commitment. Customer’s
Monthly Service Commitments will be deemed satisfied to the extent that
Customer pays Level 3 the Total Other Service Commitment. Payments made by
Customer for taxes or regulatory fees ancillary to the delivery of Eligible
Services are not included when determining whether the Monthly Other Service
Commitment has been satisfied. In the event that Level 3 refuses, or is


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


9

















 


otherwise unable or unwilling, to accept Customer
Orders for existing or new/proposed Eligible Services where Level 3 has agreed
to provide comparable or favorable pricing to the pricing Customer is able to
obtain from other carriers offering substantially similar services, then the
charges Customer would have paid Level 3 for such services over the term of the
proposed Customer Order will be deducted from the Total Other Service
Commitment.


 


(d)                                 “Look-In” Review


 


*


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


10

















 


 


5.                                      CONFIDENTIALITY.


 


The parties agree that
all Confidential Information, as defined in the Non-Disclosure Agreement
between the parties dated February 25, 2004 (the “NDA”) which is obtained
by either party In the performance of this Service Schedule, and specifically
including without limitation, Level 3’s ESRN’s, ESQK’s (whether Level 3 or
Customer provided) and any such information obtained by Level 3 concerning
Customer’s End Users, shall be treated as confidential in accordance with the
terms of the NDA, and that the terms of the NDA shall apply for the Term hereof
regardless of any earlier expiration or termination of the NDA.


 


6.                                      REPRESENTATIONS
AND WARRANTIES.   Level 3
represents and warrants to Customer that, as of the Effective Date, 911
Supported PSAPs cover 66% of US Households (and, subject to the obligations of
the parties stated in this Service Schedule, intends to cause such 911
Supported PSAPs to become Covered PSAPs as promptly as possible following the
Effective Date of this Service Schedule). Thereafter (subject to
Section 3(A) above) Level 3 intends to continue to expand the
geographic scope of the ECR Services. Level 3 further represents and warrants
that it has and will have the legal right and authority to provide the ECR
Services described herein in the areas served by the Covered PSAPs. Each party
represents that it has the legal right and authority to enter into this
Services Schedule.


 


7.                                      INDEMNIFICATION.


 


Third Party Claims.
Each Party (the “Indemnifying Party”) shall defend and indemnify the other
party, and its employees, officers, directors and affiliates (the “Indemnified
Party”) and hold such Indemnified Party harmless against any claim, loss,
damage, liability or expense (including reasonable attorneys fees) by a third
party (hereafter a “Third Party Claim”) arising out of the negligence, willful
misconduct, or material breach of this Service Schedule by the
Indemnifying Party where the Third Party Claim is not brought by an End User
and is not a claim for personal injury, property damage, death (or similar tort
claim) arising from the failure of the Customer provided VoIP application
incorporating the ECR Service (such claims collectively referred to as “End
User Related Claims”). In addition, subject to the limitations stated below,
the Indemnifying Party shall defend and indemnify the Indemnified Party and
hold such Indemnified Party harmless against any Third Party Claim arising out
of the gross negligence, recklessness, willful misconduct, or material breach
of this Service Schedule by the Indemnifying Party


 


 


11

















 


where the Third Party
Claim is an End User Related Claim; provided that where Level 3 is the
Indemnifying Party, Customer’s (or its Affiliate’s) agreement with such End
User contains provisions at least as protective to Customer and Level 3 as
those contained in Exhibit “C” hereto, which Customer shall use
commercially reasonable efforts to implement as soon as is reasonably
practicable following the Effective Date (and shall maintain such terms and
conditions thereafter during the Term, as they may be updated from time to
time by Customer). The Indemnifying Party shall include its agents, employees,
contractors, or others retained by the Indemnifying Party; provided, however,
that (i) with respect to employees or agents of the Indemnifying Party,
the act(s) to be indemnified (the “Fault”) occurs while performing within the
scope of their employment, (ii) with respect to subcontractors of the
Indemnifying Party, such Fault occurs in the course of performing duties of the
subcontractor under its subcontract with the Indemnifying Party, and (iii) with
respect to the Fault of employees or agents of such subcontractor, such Fault
occurs while performing within the scope of their employment by the
subcontractor with respect to such duties of the subcontractor under the
subcontract.


 


Notwithstanding the
foregoing, with respect to End User Related Claims, if the Indemnifying Party
would be immune or otherwise protected from liability under a Third Party Claim
if the claim being asserted were brought by an End User (or other claimant)
directly against the Indemnifying Party under applicable law or regulation by
reason of such Indemnifying Party’s status as a carrier or provider of 911 or
E911 services, then the Indemnifying Party’s indemnification obligations shall
be limited so as to be consistent with the standards set forth under such
applicable law or regulation. For example, if under applicable law Level 3
would be shielded from claims brought against it directly by an End User unless
it engaged in negligent or more egregious conduct, then Level 3 would only be
obligated to indemnify Customer for such claim under this Service Schedule if
the Third Party Claim resulted from Level 3’s negligent or more egregious
conduct; and if under applicable law Customer would be shielded from claims
brought against it directly by an End User unless it engaged in negligent or
more egregious conduct, then Customer would only be obligated to indemnify
Level 3 for such claim under this Service Schedule if the Third Party
Claim resulted from Customer’s negligent or more egregious conduct.


 


The foregoing
notwithstanding, neither party shall be obligated to defend, indemnify or hold
the other party harmless under the above indemnities for a Third Party Claim
where both parties would be obligated to indemnify the other under the
indemnity obligations stated above.


 


Nothing in this Section 10
shall be construed as a waiver or limitation by either Party of any
indemnification or liability protections which may be, or which may become,
available under federal or state law or regulation to limit the liability of
entities providing 911 or E911 services, all such rights expressly reserved.


 


IP Indemnity.   If the ECR Service as provided by Level 3
becomes, or if Level 3 reasonably believes that the ECR Service may become:
(i) the subject of a suit, proceeding or other claim by a third party that
the ECR Services as provided by Level 3 infringe the U.S. intellectual property
rights of a third party; or (ii) Customer’s right to use the ECR Services may be
enjoined as the result of a claim by a third party that the ECR Services as
provided by Level 3 infringe the U.S. intellectual property rights of such
third party, Level 3 may, at its option and as is commercially reasonable, at
its own expense and option:


 


(A)                              procure
the right to continue to provide the ECR Service pursuant to this Agreement to
Customer on a non-infringing basis; or


 


(B)                                replace
the ECR Services with a different service that has substantially similar
functionality as the ECR Services and will continue to allow Customer to remain
compliant with applicable law; or


 


(C)                                modify
the ECR Services with substantially similar functionality so they become
non-infringing


 


In addition to the
foregoing, Level 3 will indemnify and defend Customer, its employees,
directors, and officers, with respect to a suit, proceeding or other claim
arising from or relating to a third party claim (other than a third party claim
brought by a Customer affiliate) of U.S. intellectual property infringement
arising from Level 3’s provision of the ECR Services; except that Level 3 shall
not have any indemnification obligation under this Section to the extent
such claim arises out of or is related to (i) modification of the ECR
Service by Customer, its employees, agents, representatives or contractors, (ii) the
combination by Customer of the ECR Service with any Customer Provided Service
(as defined below), or (iii) Customer’s use of the ECR Service for a
purpose other than as


 


12

















 


intended. The obligations
set forth in this subsection constitutes Level 3’s total responsibility to
Customer with respect to any claim for patent, copyright, trademark, service
mark, trade secret or other intellectual property infringement.


 


Customer shall indemnify
and defend Level 3, its directors, officers, and employees harmless from any
loss, damage, expense or liability resulting from or related to any
non-Affiliate third party claim that any services provided or delivered by
Customer which incorporates the ECR Service (“Customer Provided Service”)
infringes upon any U.S. patent, copyright, trademark, service mark, trade
secret or other intellectual property or proprietary right of such third party
to the extent such claim arises out of or is related to (i) modification
of the ECR Service by Customer, its employees, agents, representatives or
contractors, (ii) the combination by Customer of the ECR Service with an
infringing Customer Provided Service, or (iii) Customer’s use of the ECR
Service for a purpose other than as intended. The obligations set forth in this
subsection constitute Customer’s total responsibility to Level 3 with
respect to any claim for patent, copyright, trademark, service mark, trade
secret or other intellectual property infringement.


 


8.                                      TRANSITION
ASSISTANCE.   Notwithstanding
anything to the contrary, upon expiration of this Service Schedule or
termination of the same by Customer as the result of an uncured, material
default by Level 3, Customer may cancel any or all ECR Services pursuant
to this Service Schedule without any liability upon notice to Level 3.
Upon expiration or termination of this Service Schedule other than by
Level 3 as the result of Customers uncured, material default, Level 3 shall
(i) provide Customer reasonable assistance and consultation to ensure a
smooth and timely transition of the ECR Services then-expiring or being
terminated or cancelled to Customer or its designee, and (ii) continue to
provide the services then expiring, terminating or being cancelled (at prices
then in effect as of the date of such expiration, termination or cancellation,
as such prices may be reduced pursuant to this Service Schedule) and
otherwise perform all of its obligations hereunder until such time as
Customer has established an alternative arrangement for such services, and has
arranged for the seamless transition of such services to the alternative
provider. Customer shall continue to pay for the services then expiring,
terminating or being cancelled at the higher of (i) the monthly recurring
price that is in effect for the month of such expiration, termination or
cancellation, or (ii) the monthly recurring charges dictated by the number
of Covered End Users. Customer shall otherwise perform all of its
obligations hereunder, until ECR Service is provided to Customer no longer.


 


[Signature page follows]


 


13

















 


 


	
  LEVEL 3 COMMUNICATIONS, LLC (“Level
  3”)

  	
  VONAGE NETWORK INC.
  (“Customer”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Myrle McNeal

  	
   

  	
  By

  	
  /s/ Michael Tribolet

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name

  	
  Myrle McNeal

  	
   

  	
  Name

  	
  8/31/05

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
   SVP – Local
  Voice Services

  	
   

  	
  Title

  	
  EVP OPS

  	
   

  



 


 


14

















 


 


Exhibit “A”


 


Service Levels


 


Level 3 shall, at all times during the Term, use
commercially reasonable efforts to maintain Service Levels for ECR Service
Availability (as defined below) at 99% or higher, as set forth under current
NENA standards as of the Effective Date. Availability of ECR Service shall mean
the ability of the ECR Service to accept End User 911 Calls from Customer
at the Customer IP Gateway and route them to the appropriate 911 Selective
Router, subject to such calls being transmitted to Level 3 by Customer in
accordance with the Service Schedule. Availability (and Unavailability) will be
calculated on a monthly basis per Covered PSAP (i.e. if calls cannot be
completed by Level 3 to a specific 911 Selective Router, all Covered PSAPs
affected by such unavailability will be considered “Unavailable” during the
affected time period).


 


*


 


The Service Levels stated above do not apply during
periods of Excused Outages, for multiple single user events or for
multiple 911 Calls reporting the same 911 event.


 


Table 1 – Classification of Outages


 


	
  P1: High level of impact on service delivery,
  causing cumulative service Unavailability (as defined above) of thirty (30)
  minutes or greater in a given month.

  	
   

  	
  P2: Significant level of impact on service delivery,
  causing cumulative service Unavailability (as defined above) of less than
  thirty (30) minutes, but greater than five (5) minutes in a given month.
  Typically, degradation is of a short duration, but demonstrates a trend
  toward a P1 outage classification.

  	
   

  	
  P3: Low level of impact on service delivery, but
  Level 3 would not believe it likely to affect call delivery to 911 Selective
  Routers. P3 service degradation is not apparent to external stakeholders.

  



 


Table 2:  Target Incident
Resolution Times


 


	
  P1

  	
   

  	
  P2

  	
   

  	
  P3

  
	
  Thirty (30) minutes for Level 3 On-Net; two (2) hours
  for Off- Net circuits or components.

  	
   

  	
  Two (2) hours for Level 3 On-Net and Off-Net
  circuits or components.

  	
   

  	
  No more than one (1) business day for both
  Level 3 On-Net and Off-Net circuits or components.

  



 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


1

















 


•                  During a P1 or P2 outage, Level 3
will notify Customer and keep Customer regularly informed of outage details and
steps towards resolution. A trouble ticket relating to a P1 or P2 outage will
be closed when acknowledged as being resolved by both parties in their
reasonable judgment. P1 and P2 outage notifications will describe the affected
ESRN’s and/or Covered PSAP’s, and Customer will not route 911 Calls using such
ESRN’s or to such Covered PSAPs during the period of the P1 or P2 outage.


 


•                  The categorization of an event as P1,
P2 or P3 shall be made by Level 3 based upon the definitions in Table 1, and
shall be communicated to Customer as early as possible, based on the best
information available at the time. If Customer disagrees with the
categorization, Level 3 will in good faith consider requests by Customer to
upgrade the service impairment level where appropriate, and revise its target
resolution times, reports, notifications and escalation procedures accordingly
if an upgrade is mutually agreeable.


 


•                  For purposes of monthly fee
adjustments for service outages, if Level 3 and Customer do not agree on the
service impairment level of any incident, the disagreement shall be resolved
pursuant to the Dispute Resolution provisions under the Agreement.


 


Adjustments for Service Levels


 


Availability. Customer will
be entitled to a credit equal to the portion of the monthly recurring fee
attributable to affected Covered PSAP’s during a month in which a P1 outage
occurs as stated in the chart below, depending on the duration of the P1 outage
(without regard to the length of the trouble ticket respecting the P1 outage,
be it shorter or longer than the outage itself):


 


	
  Cumulative P1 Outage Length per 

  month per affected Covered PSAP 

  (in hrs:mins:secs)

  	
   

  	
  Service Level Credit 

  Towards Monthly Recurring Charges

  	
   

  
	
  *

  	
   

  	
  No credit

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  



 






 


*


 


	
  Monthly Call Success Rate

  	
   

  	
  Service Level Credit

  	
   

  
	
  *

  	
   

  	
  No Credit

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  
	
  *

  	
   

  	
  *

  	
   

  



 


Issuance. Credits as stated
above will be issued in accordance with Article 6 of the Agreement.


 


Escalation and Notification Procedures.


 


The Level 3 NOC follows established procedures to
resolve impairments in the ECR Service. The NOC’s responsibilities include
creating and updating the trouble ticket, managing escalation, and keeping all
stakeholders informed of progress. The Level 3 NOC will be staffed with
appropriate qualified technicians and management personnel. The parties agree
to discuss implementing, and the terms and conditions applicable to
implementing, an API interface for Customer’s use in opening and monitoring
trouble tickets.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


2

















 


Level 3 will notify the Customer point of contact
(based on the contact information provided by Customer) of a P1 or 2 service outages
(as defined above); the requirements for how and when notification must occur
depends on the severity of the outage. Notifications will include the
applicable trouble ticket number, the ESRN’s or Covered PSAP’s affected by the
outage and whether third parties (such as ILEC’s) are involved. Upon initial
notification of a P1 Event, Level 3 will provide an estimated time to respond
to the event. During subsequent notifications of a P1 Event, Level 3 shall
provide the status of any third party trouble tickets.


 


Table
shows the notification requirements.


 


Table 3:  Incident Notification
Timeframes


 


	
  P1 or P2

  	
   

  	
  P3

  
	
  Notification occurs as soon as possible but no
  longer than 30 minutes after incident identification. Subsequent updates
  occur every hour.

  	
   

  	
  No routine notification. Weekly reports available
  upon request.

  



 


The following table lists contact information for the
Level 3 Operations team.


 


Table 4:  Escalation Contact
Information


 


The chart immediately below is the Customer NOC to
Level 3 NOC escalation contact list, which shall be used only where Level 3 has
notified Customer P1 outage respecting the ECR Service.


 


	
   

  	
   

  	
   

  	
   

  	
  Phone

  	
   

  	
  Additional #

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *

  	
   

  	
   

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
   

  



 


For all other escalations respecting the ECR Service,
including where Customer believes a P1 outage has occurred (but Level 3 has not
notified Customer of the same) or where Customer seeks to open a trouble ticket
with Level 3, the following escalation path shall apply:


 


	
  Initial Call

  	
   

  	
  877 4 Level3
  / 877.453.8354 

  Option #4

  
	
  2nd Level 1 hour

  	
   

  	
  Chuck Graham
  

  Service Management Ops Manager 

  Atlanta 

  Office: *

  Pager *

  	
   

  	
  Chris Rea 

  Service Management Ops Manager 

  Broomfield Office: *

  Pager *

  



 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


3

















 


	
  3rd Level 2 Hour

  	
   

  	
  Chris
  Vonderhaar 

  Director - V&SS Customer Operations 

  Broomfield 

  Office: *

  Pager: *

  
	
  4th Level 4 Hour

  	
   

  	
  Chris
  Vonderhaar 

  Director - V&SS Customer Operations 

  Broomfield

  

  Office: *

  Pager: *

  
	
  5th Level 6 hour

  	
   

  	
  Mike Sharpe 

  Vice President - V&SS Customer Operations 

  Switched Services 

  Office: *

  Pager: *

  
	
  6th Level 8 hour

  	
   

  	
  Brent Bourne
  

  Vice President - V&SS Global Operations 

  Office: *

  



 


Reports and Meetings


 


* The objective of operational
review meetings is to inform Customer concerning Level 3’s customer
services organization, Customer support organization as to the progress of open
trouble tickets and/or to discuss all items in order to increase service
quality. The Level 3 Account Director will arrange these meetings on a regular
basis. Both parties have influence on the agenda items, but in general, the
following topics will be discussed:


 


      •                                          Organization
processes and organization changes (both parties);


 


      •                                          Progress
of Customer’s open trouble tickets;


 


      •                                          Customer’s
prioritization as to Top Five open incidents; and


 


      •                                           Customer’s
planned (evening) maintenance/configuration activities which could possibly
affect Level 3 product performance.


 


Level 3 will provide Customer with a detailed
preliminary Root Cause Analysis report about a P1 outage incident within five (5) business
days from the date of the incident. The report will include general
information, the Response Time, the resolution time, a description of the
problem, and the detailed solution to the problem.


 


Product Updates and Upgrades


 


Product Updates and Upgrades include both unscheduled
releases issued to resolve various assistance requests, and scheduled releases
as part of Level 3’s product development roadmap. Level 3 intends to
provide continuing updates and upgrades to the ECR Service and to offer new
features, incorporate new standards, implement bug fixes and improve
efficiency. Level 3 will endeavor to implement product updates and upgrades in
a manner so as to be transparent to Customer with minimal Service impact.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


4

















 


Maintenance


 


Level 3 will perform commercially reasonable
routine maintenance designed to keep the ECR Service performing in accordance
with the applicable Service Levels. All Scheduled Maintenance shall be
preformed in accordance with Section 2.7 of the Agreement


 


Level 3 shall use commercially reasonable efforts
under the circumstances to notify Customer prior to commencing emergency
maintenance, and will provide a “post mortem” report to Customer of emergency
maintenance conducted with the same information described above.


 


Level 3 shall notify Customer as soon as possible (in
accordance with the notification guidelines stated above, depending on the
outage type) in the event that there is an unplanned outage on the Level 3
network. Level 3 shall provide Customer with the applicable details regarding
the network outage in order to avoid Customer establishing trouble tickets related
to such network outage, including the nature of the outage, anticipated
restoration time, updates on the restoration time, the closure of the outage
and the reason for the outage.


 


Chronic Outages


 


For purposes of the ECR Service Schedule, a Chronic
Situation shall mean the following:


 


      •                                           * separate occurrences of Unavailability of * consecutive minutes or longer affecting a 911
Selective Router within the first * calendar days
of establishing ECR Service to the first Covered PSAP served by the 911 Selective
Router (the “Initial Period”).


 


      •                                           After the
Initial Period respecting a 911 Selective Router, * separate
occurrences of Unavailability of * consecutive
minutes or longer within * calendar days
to the same 911 Selective Router.


 


      •                                           After the
Initial Period respecting a 911 Selective Router, *
separate occurrences of Unavailability of * consecutive
minutes or longer within any * consecutive
day period to the same 911 Selective Router.


 


Upon the occurrence of any P1 event or Chronic
Situation, the Level 3 NOC will provide a Root Cause Analysis within * business days of said event. In addition, in the event of
a Chronic Situation, Level 3 will also provide a Corrective Action Plan within * business days of said event. The Corrective Action Plan
will consider without limitation the benefits surrounding and/or need to
re-provision facilities to mitigate service level affecting issues. Level 3
shall use commercially reasonable efforts to implement remedial measures
recommended from the Corrective Action Plan as soon as possible, and shall
diligently prosecute such Corrective Action Plan to completion, provided that
such completion time shall not exceed 30 days, unless the Corrective Action
Plan involves third party facilities beyond Level 3’s reasonable control, in
which case the 30 day period shall be reasonably extended as necessary
(provided that Level 3 shall continue to diligently prosecute such Corrective
Action Plan to completion) (the “Corrective Action Period”).


 


Without limiting the foregoing, upon the occurrence of
* separate P1 events affecting a
Covered PSAP within any * consecutive
day period or * separate P1 events affecting a Covered
PSAP in a rolling * month period,
such failures shall be deemed a “Chronic Failure”. Upon the occurrence of the * P1 event where a * would result
in a Chronic Failure or the * P1 event
where a * would result in a Chronic Failure,
Level 3 will provide Customer a Corrective Plan within *
business days following the applicable P1 event. If a Chronic Failure
thereafter occurs, then Customer *.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


5

















 


In addition, should *
separate P1 events affect ECR Services to * or more of
all of the Covered PSAP’s under the ECR Service Schedule within any * consecutive day period or if *
separate P1 events affect ECR Services to * or more of all of the Covered PSAPs
under the ECR Service Schedule within a rolling *
month period, then such failure shall be deemed a “Chronic Network Failure”. Upon
the occurrence of the * P1 event
where a * would result in a Chronic Network
Failure or the * P1 event where a * would result in a Chronic Network Failure, Level 3 will
provide Customer a Corrective Plan within * business days
following the applicable P1 event. If a Chronic Network Failure thereafter
occurs, then Customer may, as of the later of i) the P1 event resulting in the
Chronic Network Failure if the Corrective Action Period expired prior to such
events commencement; or ii) the occurrence of another P1 event affecting ECR
Services to * or more of all of the Covered
PSAP’s under the ECR Service Schedule in the *
day period following expiration of the Corrective Network Action Period if the
P1 event resulting in the Chronic Network Failure commenced before the
expiration of the Corrective Action Period: *.


 


Chronic Situations, Chronic Failures and Chronic
Network Outages as defined above will not include periods of Excused Outage.
Further (and for clarity given certain of the terms used above) Chronic
Situations, Chronic Failures and Chronic Network Outages shall only apply to
failures occurring between the Customer IP Gateway and the appropriate 911
Selective Router.


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission.


 


6

















 


Exhibit “B”


 


911 Supported PSAPS


 


PSAP Name (s)


 


*


 






* Confidential treatment
has been requested. The redacted material has been separately filed with the
Commission. The redacted material in Exhibit “B” consists of 66 pages.


 


7














 


Exhibit “C”


 


Customer End User Terms


 


C.1  Customer’s agreements with End Users (as
defined in the Service Schedule) shall at all times contain provisions at least
as protective to Customer and Level 3 as the following:  (i) an explanation of the limitations on
the functionality of any 911 Service (as defined in the Service Schedule)
provided by Customer to End Users as set forth in Section C.2 of this Exhibit C;
(ii) a statement that the Customer’s aggregate liability to End Users,
shall be limited to the amount of the Service charges for the affected time
period (i.e. the monthly charges paid for the month in which the claim arose); (iii) a
statement that neither Customer nor its suppliers shall be liable to End Users
for any consequential, indirect, incidental, special or punitive damages in
connection with any errors or interruptions in the delivery of the Customer
provided Service; and (iv) a release and a disclaimer of liability in
favor of Customer and its suppliers relating to claims by End Users arising out
of:  a) the failure of 911 Services to
function properly for the reasons set forth in Section C.2 of this Exhibit C
below; and b) any other claims relating to the absence, failure or outage of
the Customer provided Service, including 911 Service (other than those arising
from gross negligence or willful misconduct).


 


C.2  Customer’s agreements with End Users shall at
all times contain provisions at least as protective to Customer and Level 3 as
the following:  provisions stating, at a
minimum, that any 911 Services provided by Vonage will not function, or will
not function properly:  (i) if an
End User attempts a 911 call from a location different from the End User’s then
current address provided to Vonage by the End User; (ii) during any
disruption of power at the End User location; (iii) during any disruption
of Internet connectivity to the End User location; (iv) during any period
where Vonage has cancelled or suspended delivery of Service to the End User for
any reason (including suspensions or cancellations for failure to pay or other
default); (v) during any period of Service outage or failure beyond Vonage’s
reasonable control (including network or service failures of Vonage’s third
parties suppliers); (vi) if incorrect or invalid End User address
information is provided, or if such information is not updated by the End User
in the event of a change in their location; or (vii) if equipment provided
to the End User fails to function, is not properly configured or is defective.
911 Services will not function properly unless and until correct and valid
address information has been input Into the appropriate database(s), which may occur
shortly after initial Service activation.


 


C.3  Customer’s agreements with End User shall at
all times also contain provisions at least as protective to Customer and Level
3 as the following:


 


a. the End User’s obligation defend, indemnify, and
hold harmless Customer, its officers, directors, employees, affiliates, and
agents and any other service provider who furnishes services to you in
connection the Service (including our suppliers), from any and all claims,
losses, damages, fines, penalties, costs and expenses (including, without
limitation, attorneys fees) by, or on behalf of, you or any third party
relating to the absence, failure or outage of the Service, including 911
dialing, incorrectly routed 911 dating calls, and/or the inability of any user
of the Service to be able to use 911 dialing or access emergency service
personnel.


 


b. a provision encouraging the End User to obtain an
alternate means of accessing traditional 911 Services or terminating the
Service if they are concerned over the limitations of the 911 service.


 


c. a clause providing that the Agreement does not
provide any person or entity not a party to this Agreement (other than Vonage’s
suppliers) with any third party beneficiary rights.


 


d. a clause providing that any dispute or claim
between the End User, any member of the End User’s household or any guest or
employee of the End User and Vonage arising out of or relating to the Service
(including 911 Services) will be resolved by arbitration before a single
arbitrator administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. The arbitration will take place in
Somerset, New Jersey. The arbitrator’s decision will follow the plain meaning
of the relevant documents, and will be final and binding. Without limiting the
foregoing, the parties agree that no arbitrator has the authority to:  (i) award relief in excess of what this
Agreement provides; or (ii) award punitive or exemplary damages. Judgment
on the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. Regardless of any statute or law to the contrary,
any claim or cause of action arising out of or related to the service must be
filed within one (1) year after such claim or cause of action arose or be
forever barred. All claims shall be arbitrated individually. End User’s shall
not bring,


 


8

















 


or join any class action of any kind in court or
in arbitration or seek to consolidate or bring previously consolidated claims
in arbitration. This arbitration provision constitutes a waiver of any right to
a jury trial and an agreement to be subject to jurisdiction in, and conduct
arbitral proceedings in, New Jersey.


 


e. a waiver provision providing that no failure of
Vonage to exercise or enforce any right or provision of this Agreement will
constitute a waiver of such right or provision.


 


f. a clause providing that the Agreement, including
any future modifications as may occur within the terms of the Agreement,
constitute the entire agreement between the End User and Vonage and govern the
use of the Service by End User, members of the End User’s household, guests and
employees, and supersedes any prior or contemporaneous agreements .


 


g. a severability clause providing that if any part of
the Agreement is unenforceable, all other parts of this Agreement remain in
effect.


 


h. a clause providing that Vonage may change the
terms and conditions of this Agreement from time to time and that notices will
be considered given and effective on the date posted on www.vonage.com.


 


9

















 


Exhibit “D”


 


Test Plan Template


 


TEST PLAN TEMPLATE


 


9-1-1 Test Plan (per Test Number) Template


 




	
  Date:

  	
   

  	
   

  	
  PSAP Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Service Area:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Switch Trunk Group No.:

  	
   

  	
   

  	
  Trunk Quantity:

  	
   

  	
   

  	
  Two Six Code:

  	
   

  
											






 


Disclaimer:


This test scenario document should be used as a
guideline for testing 9-1-1 service and does not purport to include all tests
that should be performed prior to establishing 9-1-1 service.


 


Testing Exceptions:


If the test result is different than the expected
result, please feel free to call or place a Trouble Ticket with the appropriate
Vonage Trouble Reporting Center.


 


TEST PREPARATION CHECKLIST  


 


	
  STEP

  	
   

  	
  ACTION
  ITEM

  
	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Verify that new 9-1-1 trunks under test have
  completed continuity testing, when necessary, (Owner: Level 3)

  
	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  Verify the NXX under test is LERG effective (Owner:
  Level 3)

  
	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Verify that 9-1-1 ALI test record has been submitted
  for one of two test lines to the appropriate ALI Host Provider and has posted
  in the ALI/DBMS. (Owner VPC (TCS))

  
	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  Verify that the test record submitted routes to the
  PSAP that should receive 9-1-1 calls in the event of an ALI failure (“No
  Record Found”) condition. PSAP contacts VPC (TCS) to obtain-caller
  information (Owner: VPC (TCS))

  
	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  Verify that all line-side ESRN translations are complete
  and will route 9-1-1 calls to the appropriate 9-1-1trunk group. (Owner. Level
  3)

  
	
   

  	
   

  	
   

  
	
  6 

  	
   

  	
  Verify that the appropriate translations are
  completed to either a fast busy or 10-digit PSAP number where required for an
  “all circuits busy” condition*. This would be a one time test that is not
  repeated every time we test an ESRN/ESQK (Owner: Vonage) 

  
	
   

  	
   

  	
   

  
	
  7

  	
   

  	
  [Reserved]

  
	
   

  	
   

  	
   

  
	
  8

  	
   

  	
  Coordinate 9-1-1 Call Through testing with PSAP or.
  PSAP Agency. (Owner VPC (TCS)/Level 3)

  



 






* Such conditions occurring at or beyond the 911
Selective Router are beyond the scope of the ECR Services provided by Level 3.


 


10

















 


911 CALL THROUGH TEST SCENARIOS


 


	
  Scenario 1

  	
   

  	
  Expected Results

  	
   

  	
  Actual Results

  
	
  Test call placed from valid NPA-NXX- XXXX with
  Registered Location record processed in appropriate Automatic Location
  Identification (ALI) Data Management System; call delivered to Level 3 by
  Vonage to Level 3 in accordance with Section 3.B of the ECR Service
  Schedule.

  	
   

  	
  Call should complete to the Primary PSAP with the
  correct ANI and ALI.

  	
   

  	
  Notes:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Test Number:

  	
   

  	
  PSAP:

  	
   

  	
  Pass

  	
   

  	
  o

  	
   

  	
  Fail

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ANI:

  	
   

  	
  Pass

  	
   

  	
  o

  	
   

  	
  Fail

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ALI:

  	
   

  	
  Pass

  	
   

  	
  o

  	
   

  	
  Fail

  	
   

  	
  o

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tester will request the PSAP Attendant place a
  return call to the number under test.

  	
   

  	
  Call Completes from PSAP to ANI under test.

  	
   

  	
  Pass

  	
   

  	
  o

  	
   

  	
  Fail

  	
   

  	
  o

  



 


11

















 


Exhibit “E”


 


Test PSAPs


 


	
  PSAP Name

  	
   

  	
  State

  	
   

  	
  LEC

  
	
  Portland-Bureau of Emergency Communications

  	
   

  	
  OR

  	
   

  	
  Qwest

  
	
  Redwood City Police Department

  	
   

  	
  CA

  	
   

  	
  SBC

  
	
  Tarrant County Sheriff’s Department

  	
   

  	
  TX

  	
   

  	
  SBC - SWBT

  
	
  Miami-Dade Police Department

  	
   

  	
  FL

  	
   

  	
  Bell South

  
	
  Raleigh-Wake County

  	
   

  	
  NC

  	
   

  	
  Bell South

  
	
  Montgomery County Police Communications Center

  	
   

  	
  MD

  	
   

  	
  Verizon

  
	
  Randolph County Emergency Communications 

  To be mutually agreed.

  	
   

  	
  NC

  	
   

  	
  Sprint

  



 


12