NETWORK SERVICES AGREEMENT
THIS NETWORK SERVICES AGREEMENT (this “Agreement”) is entered into as of ______, 2011 (the “Effective Date”) by and between National LambdaRail, Inc., a Delaware non-profit corporation authorized to do business in California, with offices at [STREET ADDRESS], [CITY], CA[ZIP] (“Supplier”), and the Regents of the University of California on behalf of itself and its Santa Cruz campus, a public trust organized under the Constitution of the State of California, with offices at 1156 High Street, Santa Cruz, CA 95064 (“Customer”). Capitalized terms not otherwise defined herein shall have the meaning set forth in Section 12.
WHEREAS, Customer has entered and intends to enter into an agreement or agreements with the National Institutes of Health (“NIH”), National Center for Biotechnology Information (“NCBI”), National Cancer Institute (“NCI”), other NIH institutes, and/or certain contractors thereof, including, without limitation, SAIC-Frederick, Inc. (“SAIC”) (collectively, “Agency Partners”) pursuant to which Customer shall be responsible for developing, deploying and operating a system (“CGHub”) to support The Cancer Genome Atlas (“TCGA”), the Therapeutically Applicable Research to Generate Effective Treatments (“TARGET”), the Cancer Genome Anatomy Project/Cancer Genome Characterization Initiative (“CGAP/CGCI”), and similar programs (collectively the “Cancer Genomics Projects”) to collect, store, retrieve and analyze genomic data (the “CGHub Project”);
WHEREAS, in connection with the foregoing, Customer requires use of an advanced, high capacity, high bandwidth data transfer network to facilitate the secure acquisition, storage, and sharing of genome sequence, phenotype metadata, and other Project Data via CGHub and support associated multiple simultaneous high-capacity data transfers across 10 gigabits per second (“Gbps”) links, and eventually 40 or 100 Gbps links;
WHEREAS, Supplier is, as of the time of execution of this Agreement, the sole entity that owns or otherwise has the rights to use a nationwide network services infrastructure that provides stable, production-quality, non-interruptable private internet protocol service with traffic, routing, and policy separation, and that as of the Effective Date is already linked to each of the Primary Sites; and
WHEREAS, Supplier is otherwise qualified and desires to provide the services described above and below, on behalf of the Agency Partners through this Agreement, and Customer desires to retain the assistance and services of Supplier in such capacity.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, and intending to be legally bound hereby, Supplier and Customer hereby agree to all of the following terms and conditions.
1.Scope of Services. The services to be provided by Supplier hereunder (“Network Services”) include, without limitation, network capacity, connectivity, and related operations and maintenanceas set forth herein. The parties acknowledge and agree that the Network Services comprise an essential component of CGHub.
(a)General Standard. The Network Services shall be substantially superior to equivalent services provided by the Agency Partners to the Cancer Genomics Projects prior to August 1, 2011. In particular, the Network Services shall provide stable, production-quality, non-interruptable private internet protocol service with traffic, routing, and policy separation, to support the secure transmission of Project Data at 10 Gbps and, before the end of the Term, 40 or 100 Gbps.
(b)CGHub and Specifications Development. Supplier acknowledges that, as of the Effective Date, CGHub remains under development. Accordingly, precise specifications for the Network Services (the “Specifications”) have not yet been fully defined and are subject to review and written acceptance by the Agency Partners, which acceptance may be withheld or delayed by the Agency Partners (“Acceptance”). Supplier shall cooperate with Customer in developing mutually agreeable plans for implementing the Network Services, which may include proposed Specifications (the “Implementation Plans”), and in seeking Acceptance of any proposed Specifications. The Implementation Plansand any Specifications for whichAcceptance is secured shall be, and hereby are, included in the Network Servicesand incorporated herein by reference. Customer’s payment of fees for the Network Services under this Agreement shall not constitute Acceptance of any Specifications. Until Acceptance for all required Specifications has been secured and all deliverables and milestones described in the Implementation Plans have been fully completed, Supplier shall participate in weekly meetings or teleconferences with Customer’s Project Manager to provide detailed reports on progress against the Implementation Plans and to discuss plans for the following week.
(c)Electronic and Information Technology Standards. In providing the Network Services, Supplier shall comply with Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d ) as amended by P.L. 105-220 under Title IV (Rehabilitation Act Amendments of 1998). Electronic and Information Technology developed, procured, maintained, and/or used under this Agreement shall be in compliance with the “Electronic and Information Technology Accessibility Standards” set forth by the Architectural and Transportation Barriers Compliance Board (also referred to as the “Access Board”) in 36 CFR Part 1194. The complete text of Section 508 Final Standards can be accessed at Applicable standards to this requirement are set forth in 36 CFR Part 1194.21 through 26. Supplier further agrees to include this provision in any subcontract awarded pursuant to this Agreement. Failure to comply with these requirements shall constitute a material breach of this Agreement and may result in termination.
(d)Notice of Delay. Supplier shall immediately notify Customer’s Project Manager in writing of any actual or potential delay in Supplier’s performance under the Implementation Plans or otherwise under this Agreement. Such notice shall, at a minimum, describe the cause, effect, duration, and corrective action proposed by Supplier to address the problem. Supplier shall give prompt written notice to Customer’s Project Manager of all changes to such conditions. This notification shall be informational only, and compliance with this provision shall not be construed as a waiver by Customer of any delivery schedule or date or of any rights or remedies provided by law or under this Agreement.
2.Services.
(a)Basic Services. Supplier shall provide the Network Services and, at no additional cost to Customer, cooperate with and, to the extent relevant to the Network Services, otherwise assist Customer in performing the work required under the Statement of Work (“SOW”) attached to the SAIC Letter Agreement of July 29, 2011, as it may be amended from time to time, and under other SOWs issued by the Agency Partners from time to time pursuant to the Agency Partner Agreement, which is attached at Exhibit A and incorporated as part of this Agreement.
(b)Capacity and Connectivity. Without limiting the scope of the Network Services or the Acceptance provisions set forth in Section 1, Supplier shall provide infrastructure capacity and connectivity to the Service Recipients, as further provided below.
i.Supplier shall provide a dedicated version of Supplier’s PacketNet service, as generally described at (subject to such modifications as may be agreed to in writing by Customer and Supplier and subject to Acceptance) for use by Service Recipients in connection with the CGHub Project. This service shall include, without limitation, 10 Gbps connectivity for all Service Recipients across Supplier’s entire network as described at of the Effective Date and as it may be expanded from time to time thereafter (the “Network”); internet protocol (“IP”) transit services to provide connectivity between CGHub and the Internet; and a routable block of at least thirty-two (32) IP addresses and control of the reverse domain name service for those addresses. Customer acknowledges that, as between Customer and Supplier, the Network is and shall remain at all times throughout the Term the property of Supplier.
ii.Supplier shall provide one 10 Gbps link to the Network for each Service Recipient beginning with the Primary Sites; provided, however, that if Customer notifies Supplier that certain Service Recipients require a specified level of connectivity less than 10 Gbps, Supplier shall be obligated to provide only such lesser level of connectivity for such Service Recipients, and Customer shall receive usage credits as specified in Exhibit E (“Usage Credits”).
iii.Supplier shall connect each Service Recipient to the Network in accordance with the connection specifications provided by such Service Recipient to Supplier, which connection specifications shall be reasonably acceptable to Supplier. Such connection specifications may include physical connectivity to the Service Recipient’s applicable regional provider (“Regional Provider”) and BGP peering with the Service Recipient or Regional Provider; provided, however, the parties acknowledge that connection specifications may vary among Service Recipients depending on each Service Recipient’s needs, existing facilities and Regional Provider arrangements. If Supplier objects to the connection specifications provided by any Service Recipient, Supplier shall promptly notify such Service Recipient and Customer of its objection and cooperate in good faith with such Service Recipient and Customer to develop reasonably acceptable alternative specifications as promptly as possible. Supplier shall ensure that connectivity as specified herein is fully operational and available to a Service Recipient no later than five (5) business days after Supplier receives reasonably acceptable connection specifications from that Service Recipient. If a Service Recipient requests a change to its connection specifications, Supplier shall implement such change (subject to the acceptance provisions described above) as promptly as practicable; provided, however, that if the change is material such that Supplier is required to charge a fee for the service, such fee shall be limited to Supplier’s actual cost ofsupplying the service and shall be payable only if approved in advance in writing by Customer.
iv.Supplier shall install a 40 Gbps uplink from the Network to Customer’s primary data center located at I/O Phoenix (the “Data Center”). This uplink shall be fully installed on or before October 3, 2011 and fully tested and operational for use by the Service Recipients no later than October 7, 2011. Supplier shall install a second 40 Gbps uplink from its Network to the Data Center, which shall be redundant and completely physically diverse from the first. The second uplink shall be fully installed, tested, and operational for use by Service Recipients no later than October 1, 2012. When both uplinks are fully operational, both shall be active simultaneously (not in active/standby configuration).
v.Supplier expressly acknowledges that there shall be no limit on the number of Service Recipients or traffic volume across the Network related to the CGHub Project.
vi.Supplier shall provide Customer with a monthly report on Network utilization in a form that is satisfactory to Customer.
vii.Supplier may, to the extent consistent with the above provisions, the Specifications, and the Agency Partner Agreement, provide the Network Services in accord with Supplier’s own technical specifications.
viii.Supplier may provide theconnectivity as contemplated hereinvia affiliates listed on Exhibit B, which exhibit Supplier may update from time to time upon notice to Customer, subject to Customer’s approval (not to be unreasonably withheld); provided, however, that Supplier shall require such affiliates to comply with the terms and conditions of the Agency Partner Agreement, and Supplier shall be solely liable for the acts and omissions of such affiliates and their Personnel.
ix.At any time (and from time to time) during the Term, Customer shall have the option of upgrading some or all Service Recipients to 40 Gbps connectivity or, if available at such time, 100 Gbps connectivity. In the event such an upgrade is requested, Customer and Supplier shall negotiate in good faith the terms and conditions of such upgrade (including the Specifications, financial terms, implementation activities and any appropriate additions or revisions to the Service Level Agreements and Service Level Credits (as defined below)), provided that such terms and conditions shall be at least as favorable to Customer as those generally available to Supplier’s other customers. Supplier shall effect such upgrade as promptly as practical following the parties’ agreement on the applicable terms and conditions.
(c)Supplier Equipment. Customer acknowledges that the Network Services may include the use of certain equipment owned by Supplier (“Supplier Equipment”) and acknowledges that title to such Supplier Equipment is and shall remain vested with Supplier. If and to the extent the Supplier Equipment is housed within collocation or other facilities owned, leased, or licensed by Customer, Customer shall be responsible for providing electric power for the Supplier Equipment and shall, solely to the extent within Customer’s control: (i) keep the Supplier Equipment physically secure and free from all liens and encumbrances; and (ii) bear the risk of loss or damage to the Supplier Equipment not caused by Supplier or Supplier’s Personnel. Under no circumstances shall Customer be held responsible for the acts or omissions of Supplier or Supplier’s Personnel or other actions, omissions or events beyond Customer’s control.
(d)Supplier Access; Repairs. Customer shall reasonably cooperate with Supplier’s efforts to access property and equipment necessary for Supplier to provide the Network Services. Such access shall be used by Supplier solely for this purpose and may include, without limitation, conduits, holes, wireways, wiring, plans, equipment, space, and other items reasonably necessary to provide capacity, and may be utilized by Supplier to construct, install, repair, maintain, replace, and remove access lines and network facilities, and otherwise to provide the Network Services, but in each case subject to any reasonable restrictions imposed by the owner or operator of such property and equipment. Supplier may take such actions as may be necessary to maintain and repair the Network upon reasonable advance notice or, in the event of an emergency, without prior notice (but in such case with prompt notice after the fact); provided, however, that such actions shall at all times be in accord with the Specifications, Implementation Plans, and Agency Partner Agreement, as well as Supplier’s obligations under Exhibit C.
(e)No Resale. Supplier acknowledges that the Network Services shall be provided to the Service Recipients as part of CGHub. Customer shall not resell capacity to third parties for purposes unrelated to CGHub without Supplier’s prior written consent.
(f)Support. Supplier shall provide the Network Services support described at Exhibit C.
(g)Service Level Commitments; Service Level Credits. Supplier shall be responsible for assuring the service level commitments specified at Exhibit D, addressing availability, transmission quality, maintenance response, technical support, and other commitments and associated credits (the “Service Level Agreement” or “SLA”). If Supplier fails to meet any Service Level Agreement, Supplier shall pay Customer the credits specified on such Exhibit (“Service Level Credits”), which Service Level Credits shall be deemed to be price reductions reflecting the diminished value of the Network Services as a result of the failure and are not a penalty. Without limiting any other remedy available to Customer hereunder, in the event Supplier fails to meet any Service Level Agreement, Supplier shall promptly perform and provide to Customer a root cause analysis and, in consultation with Customer, take appropriate remedialactionsand institute appropriate preventive measures to ensure that such failure does not recur, in each case at Supplier’s own cost.
(h)Steering Committee. Supplier shall facilitate a technical infrastructure improvement steering committee (the “Steering Committee”) comprising representatives of all CGHub participating institutions in addition to Customer and Supplier, which shall meet (in person or by video or teleconference) quarterlyor with such other frequency as may be determined by the Steering Committee. The purpose of the Steering Committee shall be to monitor Supplier’s performance against the SLA andto consider and evaluate potential and ongoing Network Services improvements relevant to CGHub. Supplier shall provide a written performance report, in a form acceptable to Customer and with such reasonable supporting documentation as may be requested by Customer, reasonably in advance of each Steering Committee meeting.
3.Additional Terms and Conditions Relevant to Services.
(a)Accounts, Records and Audits. Supplier and Supplier’s respective affiliates and subcontractorsshall maintain accounts, books, papers, records, documents and other evidence (“Records”) detailing all elements of their proposal costs, work performed and charges made by them under this Agreement or otherwise directly pertinent to this Agreement. The Records shall be retained by Supplier and such Personnel for a period of five (5) years from the date of the expiration or termination of this Agreement or such longer time as may be required by an Agency Partner. The system of accounts employed by the Supplier and such Personnel hereunder shall be satisfactory to the Customer, shall be in accordance with Agency Partner requirements and generally accepted accounting principles consistently applied. The Records shall be subject to inspection and audit by the Customer, the Agency Partners, the Comptroller General of the United States, and any of their duly authorized representatives at all reasonable times and places.
(b)Reports. All reporting requirements imposed on Customer pursuant to the Specifications or otherwise by the Agency Partners (under the Agency Partner Agreement or otherwise) are adopted and incorporated by reference as a part of this Agreement, to the extent they relate to the Network Services. In addition, if Supplier has cause to believe that Customer or any Customer Personnel have acted improperly or unethically under this Agreement, Supplier shall report such behavior to Customer’s UCSC Compliance Officer ( or to Customer’s Compliance Hotline at (800) 403-4744. Copies of Customer’s Standards of Ethical Conduct and contacts for such reports are available online at
(c)Conflict of Interest. Supplier hereby certifies that no Customer employee (or near relative of any Customer employee) is employed by or owns or controls any interest in Supplier’s business, nor has received any gift or gratuity from Supplier, unless this information was previously disclosed to Customer and Customer’s Chancellor or Executive Vice Chancellor expressly provided written authorization to proceed with the transactions contemplated under this Agreement. In the event Supplier later becomes aware of a Customer employee (or near relative of a Customer employee) the Supplier has employed or who owns or controls any interest in Supplier’s business, or who has received a gift or gratuity from Supplier, Supplier shall disclose this information to the Customer signatory below and describe the employment or financial interest in Supplier’s firm. For purposes of this Section3(c), “Supplier” includes Supplier and its directors, officers, partners, members, and affiliates.