EXHIBIT
10.7.8


 


 


Agreement
to Offset


&


Amendment
#8 to Carrier Service Agreement


 


September
14, 2004


 


This Agreement to provide the right to offset
certain amounts is entered into by and among Global Crossing Bandwidth, Inc. (“Global
Crossing Bandwidth”), Global Cross Telecommunications (“Global Cross
Telecommunications”) and Eschelon Telecom Inc. (“Eschelon”), their respective
affiliates, successors or assigns (collectively, the “Eschelon Affiliates”),
Global Crossing Affiliates and Eschelon Affiliates shall sometimes be referred
to collectively as the “Parties” and individual as a “Party”.  The Parties acknowledge:


 


WHEREAS, this is Amendment #8 to the Carrier
Service Agreement between Global Crossing Bandwidth and Eschelon, on behalf of
itself and respective affiliates that my provide or obtain a portion of the
Services thereunder dated August 25, 2000, as amended (the “Wholesale Service
Agreement”); and


 


WHEREAS, Global Crossing Telecommunications
purchases certain Services from Eschelon under an agreement and/or pursuant to
tariff (the “Master Service Agreement”).


 


NOW, THEREFORE, in consideration of the
foregoing and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:


 


1.                                       The Parties
hereto agree that any current or future arrangement for the provision and
purchase of telecommunications or enhanced services by and between one or more
of the Global Crossing Affiliates and one or more of the Eschelon affiliates, regardless
of whether in accordance with a contract or tariff (collectively, the “Service
agreements”), unless specifically excluded herein, shall be subject to the
offset arrangement more fully described below, notwithstanding any terms to the
contrary therein, and the Parties further agree expressly to modify any
contrary terms to permit such offset.  In
no event shall this Agreement to Offset apply to services rendered prior to
January 26, 2002.


 


2.                                       The Parties
agree to provide the right to offset amounts owed to each other only: (1) for
Services rendered under the Service Agreements; (ii) for any undisputed amounts
(whether billed or unbilled as of this date of the offset) that, after the  expiration of any applicable notice and cure
period, are more than forth-eight (48) hours past due under the then-current
payment terms; and (iii) to the extent that such undisputed past due amounts
are recovered, after which the payment terms shall revert to the terms in
effect just prior to the offset (“Offset Arrangement”).


 


3.                                       Global Crossing
Affiliates and Eschelon Affiliates agree to reconcile the monthly invoices
between them to determine the amount owed which Party under 


 


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the respective Service
Agreements giving rise to the Offset Arrangement.  The balance, if any,. due to a Party after
such Offset Arrangement will be paid under the terms of the respective Service
Agreement or other mutually agreed upon terms.


 


4.                                       In the event
that, upon the termination of the Service Agreements, there is any excess
amount paid by Global Crossing Telecommunications for Services provided by
Eschelon Affiliates, said amount shall be promptly returned to global Crossing
Telecommunications.  In the event there is
any deficiency in the amount paid to Eschelon Affiliates, Global Crossing
Telecommunications shall promptly pay said deficiency.


 


5.                                       In the event that,
upon this termination of the Services Agreements, there is any excess amount
paid by Eschelon Affiliates for Services provided by Global Crossing Bandwidth,
said amount shall be promptly returned to Eschelon Affiliates.  In the event there is any deficiency in the
amount paid to Global Crossing Bandwidth, Eschelon Affiliates shall promptly
pay said deficiency to Global Crossing Bandwidth.


 


6.                                       Any Party
hereto may terminate this right to offset upon ninety (90) days written notice
to the other Parties.


 


7.                                       Nothing in this
Agreement shall be, or is deemed to be, a waiver of any claims or causes of
action of one Party against another.


 


8.                                       The balance of
the respective Service Agreements and any executed amendments or addendums
thereto not modified by this Amendment shall remain in full force and effect.


 


9.                                       This Amendment
may be executed in several counterparts, each of which shall constitute an original,
but all of which shall constitute one and the same instrument.


 


10.                                 Each Party
hereto represents and warrants that it is duly authorized to execute this
Offset Agreement and Amendment on behalf of itself and the affiliates that are
party to all respective Service Agreements and agrees to indemnify, hold
harmless, and defend the other Parties hereto, their affiliates, and their
respective officers, directors, shareholders, employees, agents, successors and
assigns from and against any and all damages, losses, debts, claims, liabilities,
demands, charges, suits, penalties, costs and expenses, whether accrued,
absolute, contingent or otherwise, known or unknown, including but not limited
to court costs and reasonable attorney’s fees, which any of the foregoing may
incur, or to which any of the foregoing may be subjected, arising out of or
otherwise based upon any charges, demands, actions or lawsuits relating to the
validity or enforceability of such representatives and warrants.


 


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11.                                 This Amendment
is effective as of the last date signed by the Parties below.


 


 


	
  Global Crossing Bandwidth,
  Inc.

  	
  Eschelon Telecom, Inc.

  
	
   

  	 

	
  By:

  	
  /s/ Greg Spraetz

  	
   

  	
  By:

  	
  /s/ Richard A. Smith

  	 

	
   

  	
  Greg Spraetz, SRVP

  	
  Print Name:  Richard A. Smith

  	 

	
   

  	
  North American Carrier
  Services

  	
  Print Title:    President and CEO

  	 

	
   

  	 

	
  Date:

  	
  9-22-04

  	
   

  	
  Date: 9/14/04                                     

  	 

	
   

  	 

	
  Global Crossing
  Telecommunications, Inc.

  	
  Eschelon Telecom, Inc.

  	 

	
   

  	 

	
  By:

  	
  /s/ Tammy R. Felber

  	
   

  	
  By:

  	
  /s/ Richard A. Smith

  	 

	
   

  	
  Printed Name: Tammy R.
  Felber

  	
  Print Name:

  	 

	
   

  	
  Printed Title: Director,
  Carrier Relations

  	
  Print Title:

  	 

	
   

  	 

	
  Date:

  	
  09-28-04

  	
   

  	
  Date:_________________________

  	 

												



 


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