Agreement for SBC CNM

for Optical Networking Solutions

This Agreement (“Agreement”) is between SBC Operations, Inc.on behalf of its affiliates: Southwestern Bell Telephone, L.P., d/b/a SBC Oklahoma, SBC Missouri, SBC Arkansas, SBC Kansas and SBC Texas; The Southern New England Telephone Company d/b/a SBC Connecticut; Nevada Bell Telephone Company d/b/a SBC Nevada; Pacific Bell Telephone Company d/b/a SBC California; Illinois Bell Telephone Company d/b/a SBC Illinois; Indiana Bell Telephone Company Incorporated d/b/a SBC Indiana; Michigan Bell Telephone Company d/b/a SBC Michigan; The Ohio Bell Telephone Company d/b/a SBC Ohio; and Wisconsin Bell, Inc. d/b/a SBC Wisconsin (these companies and all affiliates are collectively referred to as “SBC” or "SBC Companies”), and Enter the Customer’s Full Legal Business Name Here, a(n) Enter the Name of the State of Incorporation corporation with offices at Enter the Customer’s Street Address, City, Sate and Zip Code (“Customer”).

I.Scope of Service

A.Customer Network Management service (the “Service”) is an enhancement to qualified SBC Optical Data Services that enables Customer to proactively monitor Customer’s network. The Service allows Customer to view the overall performance of traffic on Customer’s network by displaying trend analysis and performance data in a meaningful graphical depiction (Performance Monitoring) and to receive notification of alarms that may occur in Customer’s network (Fault Management). Customer also has a choice of connections to SBC to obtain this data: a Graphical User Interface, a Data Feed, or both. Customer may download the “massaged data” over the Internet as part of the GUI solution. The Data Feed option provides raw data via FTP and Simple Network Management Protocol (SNMP) to interface with Customer’s internal support applications.

B.Upon installation of the Service, Customer will be supplied the ordered number of Logon ID(s) and password(s) to enable Customer to access the Service. User guides which contain minimum requirements and enable Customer to use the Service will be made available to Customer.

II.Ordered Service

A.Customer hereby orders the following Service(s) at the Monthly Recurring Charge (“MRC”) and Nonrecurring Charge (“NRC”) identified below:

Optical Product / Speed / CNM Service / MRC / NRC

B.SBC will bill and Customer will pay the MRC and NRC commencing on the date Service is made available to Customer (“Effective Date”). Invoices are payable net 30 days from invoice date.

C.The MRC and NRC are exclusive of taxes. Customer will pay and indemnify SBC against sales, use, and other taxes (excluding taxes on SBC’s net income) arising under this Agreement. Any tax exemption will be effective upon receipt by SBC of an exemption certificate or affidavit confirming exemption and during the effective period of the exemption.

III.Term and Termination

A.This Agreement will commence on the Effective Date and continue for a minimum term of 1 year. Thereafter, this Agreement shall automatically continue from month to month, subject to termination by either party on thirty (30) days prior written notice.

B.Customer may terminate all or any part of this Agreement at any time and for any or no reason by giving SBC at least thirty (30) days prior written notice, subject to payment of applicable termination charges. Termination charges shall be equal to the number of months remaining in the minimum term of this agreement for the terminated Service(s) times the MRC for the terminated Service(s) times fifty percent (50%). Termination of the SONET or MON service that underlies this Service shall be considered a termination of this Agreement as to the affected Service and shall be subject to the assessment of termination charges under this Subsection.

C.This Agreement may be terminated immediately by either party upon written notice to the other party if the other party (i) ceases to carry on business as a going concern, becomes the object of voluntary or involuntary bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, or (ii) fails to perform or observe a material term or condition of this Agreement, including making timely payments and such failure is not remedied within thirty (30) days after the terminating party has provided written notice to the breaching party specifically describing the material breach.

IV.Confidential Information

During the term of this Agreement, each party may obtain Confidential Information from the other party. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within 15 days after disclosure. Neither party may during the term of this Agreement and for 1 year thereafter disclose any of the other party’s Confidential Information to any third party. Neither party may use the other party’s Confidential Information except to perform its duties under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (a) already known to the receiving party, (b) becomes publicly available through no wrongful act of the receiving party, (c) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (d) received from a third party without similar restriction, or (e) disclosed by the disclosing party to a third party without an obligation of confidentiality. When disclosure of Confidential Information is required by law or regulation, the disclosing party will promptly inform the other party and will, prior to making disclosure, make all reasonable efforts to obtain a protective order or other confidential treatment and limit disclosure to portions of the document necessary to comply.

V.Force Majeure

SBC will not be liable for any failure of performance, if such failure is due to any cause beyond SBC’s reasonable control, including acts of God, fire, explosion, vandalism, terrorism, cable cut, storm, or other similar occurrence, any law, order, regulation, direction, action, or request by any government, civil, or military authority, national emergencies, insurrections, riots, wars, labor difficulties, supplier failures, shortages, breaches, or delays, or delays caused by Customer or Customer’s service or equipment vendors.

VI.Assignment

This Agreement may not be assigned, sublet, or in any manner transferred by Customer without the prior written consent of SBC, which consent will not be unreasonably withheld.

VII.Notices

Any notice required or permitted to be given shall be in writing and addressed to the parties at the address identified above. Notice shall be deemed effective on the earlier of the date of receipt or three days after being deposited in the US Mail.

VIII.Warranty and Limitation of Liability

CUSTOMER UNDERSTANDS AND AGREES THAT TEMPORARY INTERRUPTIONS MAY OCCUR AS NORMAL EVENTS IN THE PROVISION OF SERVICE. SBC WILL EXERCISE REASONABLE CARE TO PREVENT SUCH OCCURRENCES, BUT UNDER NO CIRCUMSTANCES WILL SBC BE HELD LIABLE FOR ANY ECONOMIC OR OTHER DAMAGES DUE TO SUCH INTERRUPTIONS. SBC MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY SERVICE, INCLUDING ITS QUALITY, PERFORMANCE, OR FITNESS FOR A PARTICULAR USE. IN NO EVENT WILL SBC BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF THE SERVICE. EXCEPT FOR DAMAGES FOR PERSONAL INJURY OR LOSS OF PERSONAL PROPERTY (EXCLUDING LOSS OF DATA OR PROGRAMMING), THE LIABILITY OF SBC UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES UP TO AMOUNTS PAID BY CUSTOMER FOR THE AFFECTED SERVICE DURING THE PERIOD AFFECTED BY THE MISTAKE, OMISSION, ERROR, DELAY, INTERRUPTION, OR DEFECT RESULTING IN SUCH DAMAGES.

IX.Governing Law

This Agreement shall be governed by the domestic laws of Texas.

X.General

If any provision of this Agreement is determined invalid or unenforceable, this Agreement will be construed as if it did not contain such provision. In the event of any conflict between this Agreement and any effective SBC tariff, the tariff shall control. The failure of a party to insist upon strict performance of any provision of this Agreement in any one or more instances will not be construed as a waiver of such provision, and the same will remain in full force and effect. This Agreement sets forth the entire understanding of the parties and supersedes any prior agreements, representations, and understandings relating to the subject matter hereof. No modification of this Agreement will be binding unless made in writing and signed by the parties.

SO AGREED by the Parties’ respective authorized signatories:

CUSTOMER’S FULL LEGAL BUSINESS NAME HERE
By:
Printed Name: [Enter signee name, or Clear Field if not certain]
Title: [Enter signee title, or Clear Field if not certain]
Date: / SBC
By:
Printed Name:
Title:
Date:

END OF DOCUMENT

confidential Information

This Statement of Work is for use by authorized employees of the parties hereto only and is not for general distribution within or outside

their companies.

Agreement_for_SBC _CNMPage 1 of 310/21/2004 mb5972

For_Optical_Networking_Solutions