Exhibit 10.16
SPLITROCK
MASTER SERVICES AGREEMENT
NO.____________
The Master Services Agreement (the "MSA") is made by SPLITROCK SERVICES, INC. a
Delaware corporation with its principal office at 0000 Xxx Xxxxxx Xxxxx, Xxx
Xxxxxxxxx, Xxxxx 00000, ("SPLITROCK"), and FreeiNetworks, Inc., a Washington
corporation, with its principal office at 000 Xxxxx 000xx Xxxxxx, Xxxxx 000,
Xxxxxxx Xxx, XX 00000 ("CUSTOMER"), effective September 30, 1999 (the "Effective
Date"). SPLITROCK and Customer agree that the following terms and conditions
apply to the provision and use of the products and services referenced in any
attachments to this Agreement and Customer Orders signed by Customer and
accepted in writing by SPLITROCK.
DEFINITIONS
Commitment: A commitment for Service which, if made by Customer in the MSA, a
Customer Order, or in any other form specified and accepted by SPLITROCK,
obligates Customer to pay for a minimum revenue, subscribers, usage or volume of
Service and commences upon billing unless otherwise specified.
Confidential Information: Non-public information regarding the business of a
Party provided to either Party by the other where such information is marked or
otherwise communicated as being "proprietary" or "confidential" or the like, or
where such information is, by its nature, confidential.
Customer: The person, firm or corporation so named herein and on the Customer
Order.
Customer Order: A request for SPLITROCK Service submitted by Customer on a form
provided by SPLITROCK.
Party: Either SPLITROCK or Customer may be referred to individually as a Party
or collectively as the Parties herein.
Premises: The location(s) occupied by Customer or its end users specified in the
Customer Order to or from which Services will be delivered.
Service: Any data communications or related products or service(s) offered by
SPLITROCK pursuant to a Customer Order.
Start Billing Date: Billing begins upon confirmation to Customer of installation
by SPLITROCK and continues for the term set forth.
Term: The number of months of customer commitment for Service from SPLITROCK
in the MSA; herein, thirty-six (36) months from the Effective Date.
Termination Charges: The standard Termination Charges of SPLITROCK which shall
apply for Customer terminating service at the conclusion of the term on the
Customer Order. Termination Charges shall also apply for early termination by
either Party prior to expiration of the term on the Customer Order.
SECTION 1. CUSTOMER ORDERS
1.1 SUBMISSION OF CUSTOMER ORDERS. Customer shall submit to SPLITROCK signed
customer Order forms requesting the provision of Service. SPLITROCK shall
confirm the accuracy of information on the Customer Order form and the
availability of the Service requested and return the Customer Order form
countersigned constituting SPLITROCK's acceptance. The term on the Customer
Order shall not extend beyond the expiration date of the MSA without an
Amendment to the MSA.
SECTION 2. BILLING AND PAYMENT
2.1 PAYMENT AND RENDERING OF BILLS. SPLITROCK shall xxxx all charges incurred by
and credits due to Customer on a monthly basis. SPLITROCK shall xxxx in advance
charges for all Service to be provided during the ensuing month except for
charges which are dependent upon usage of Service, which charges shall be billed
in arrears. Adjustments for the quantities of Service established or
discontinued in any billing period during the Term will be prorated to the
number of days based on a thirty (30) day month.
2.2 PAYMENT OF BILLS. All invoices are issued on the 20th of the month,
subject to changes, are due by the due date stated on the invoice, and
become past due if not received by the due date. The unpaid balance of any
past due amounts shall bear at the rate of the one percent (1%) per month, or
the highest rate allowed by law, whichever is less.
2.3 TAXES AND FEES. Except for taxes based on SPLITROCK's net income and except
with respect to ad valorem personal and real property taxes imposed on
SPLITROCK's property, Customer shall be responsible for payment of all sales,
use, gross receipts, excise, access, bypass, franchise or other local, state and
federal taxes, fees, charges, or surcharges, however designated, imposed on or
based upon the provision, sale or use of the Service delivered by SPLITROCK.
2.4 REGULATORY AND LEGAL CHANGES. SPLITROCK may elect or be required by law to
file with the appropriate regulatory agency tariffs respecting the delivery of
certain Service. In the event and to the extent that such tariffs have been or
are filed respecting Service ordered by Customer, the terms set forth in the
applicable tariff shall govern SPLITROCK's delivery of, and Customer's
consumption or use of, such service. In the event of any change in applicable
law or regulation that materially increases the cost of delivery of Service,
SPLITROCK and Customer shall renegotiate regarding the rates charged to Customer
to reflect such increase in cost and, in the event that the Parties are unable
to reach agreement respecting new rates, then (a) Customer may elect to continue
the affected Customer Order at the new rates, or (b) Customer may terminate the
affected Customer Order upon thirty (30) days' written notice without payment of
any Termination Charge.
2.5 DISPUTED BILLS. In the event that Customer disputes greater than ten percent
(10%) of the xxxx. Customer must timely pay the undisputed portion of the
Invoice in full and submit a documented claim for the disputed amount. All
claims must be submitted to SPLITROCK within sixty (60) days of the due date
stated on the invoice. If Customer does not submit a claim within such period
and in the manner stated above, Customer waives all rights to dispute such
charges.
2.6 CREDIT ALLOWANCE. SPLITROCK shall issue a credit for any total Service
outage of twenty-four (24)
2.7 CREDIT APPROVAL AND DEPOSITS. Customer shall provide SPLITROCK with credit
information as requested in advance of the commencement of delivery of
Service under any Customer Order. SPLITROCK may require Customer to make a
deposit;
A. As a condition to SPLITROCK's acceptance of any Customer Order submitted by
Customer,
B. As a condition to SPLITROCK's continuation of Service under any Customer
Order, but only when Customer's consumption of Service materially exceeds
Customer's anticipated use,
C. When, in SPLITROCK's reasonable discretion, such deposit is required in order
to secure Customer's anticipated use, or
D. When, in SPLITROCK's reasonable discretion, such deposit is required in order
to secure Customer's continued payment obligation, which deposit shall be held
by SPLITROCK as security for payment of charges. At such time as the provision
of Service to Customer is terminated, the amount of the deposit shall be
credited to Customer's account and any credit balance which may remain shall be
refunded.
2.8 FRAUDULENT USE OF SERVICE. Customer shall comply with SPLITROCK's Acceptable
Use Policy and shall be solely responsible for all charges incurred respecting
Service, even if such charges were incurred through or as a result of fraudulent
or unauthorized use of the Service, unless SPLITROCK has actual knowledge of
such fraudulent or unauthorized use and fails to inform Customer thereof.
Nothing in this subsection 2.7, however, shall be construed to obligate
SPLITROCK to detect or report unauthorized or fraudulent use of Services.
SECTION 3. CANCELLATION OF CUSTOMER ORDERS
3.1 CANCELLATION OF CUSTOMER ORDER BY SPLITROCK.
SPLITROCK may immediately discontinue Service without incurring any liability:
A. For nonpayment, upon five (5) days' written notice when there is an unpaid
balance for Service that is past due.
B. For violation of any law, rule, regulation or policy of any government
authority having jurisdiction over such Service or by reason of any order or
decision of a court or other government authority having jurisdiction over
Service, without notice.
C. For any Customer filing of bankruptcy or reorganization or failing to
discharge an involuntary petition within sixty (60) days after filing.
D. For consumption of Service that materially exceeds Customer's credit limit,
upon five (5) days written notice and provided Customer has not provided
additional security for payment which is sufficient in SPLITROCK's reasonable
discretion.
E. For breach of a material term of the MSA.
3.2 EFFECT OF CANCELLATION. Upon cancellation of Service to Customer prior to
expiration of the term on the Customer Order, whether by SPLITROCK pursuant to
subsection 3.1 or by Customer, SPLITROCK may, in addition to all other remedies
that may be available to SPLITROCK at law or in equity, assess and collect from
Customer Termination Charges. Termination Charges include (i) all charges
incurred by SPLITROCK to terminate Service, and (ii) fifty percent (50%) of the
minimum unpaid monthly Commitment, or of the average monthly charges for the
three (3) full calendar months preceding termination multiplied by the months
remaining under the term in the Customer Order, whichever is lower. SPLITROCK
shall have the sole and absolute discretion to restore such Service only after
satisfaction of such conditions as SPLITROCK determines to be required for its
protection. Nonrecurring charges will be applied to restoration of Service.
SECTION 4. DELIVERY OF SERVICES
4.1 SPLITROCK FACILITIES. Customers shall not and shall not permit others to
rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any
of the facilities or equipment installed by SPLITROCK, except upon the written
consent of SPLITROCK. Equipment provided or installed by SPLITROCK for use in
connection with the Service shall not be used for any purpose other than that
for which SPLITROCK provided it. In the event that Customer or a third party
attempts to operate or maintain any SPLITROCK-owned equipment without first
obtaining SPLITROCK's written approval, in addition to any other remedies of
SPLITROCK for breach by Customer of Customer's obligations hereunder,
Customer shall pay SPLITROCK for any damage to SPLITROCK-owned equipment and
service charges in the event that maintenance or inspection of the equipment
as required as a result of Customer's breach of this Section upon invoice. In
no event shall SPLITROCK be liable to Customer or any other person for
interruption of Service or for any other loss, cost or damage caused or
related to improper use or maintenance of SPLITROCK-owned equipment.
4.2 CUSTOMER-PROVIDED EQUIPMENT. SPLITROCK shall not be responsible for the
operation or maintenance of any Customer-provided communications equipment.
SPLITROCK shall not be responsible for the transmission or reception of signals
by Customer-provided equipment or for the quality of, or defects in, such
transmission.
4.3 NO LIABILITY FOR FAILURE TO TRANSMIT MESSAGES. SPLITROCK does not undertake
to transmit messages, but offers the use of its Service when available, and, as
more fully set forth elsewhere in these terms and conditions and applicable
Customer Orders, shall not be liable for errors in transmission or for failure
to establish connections.
SECTION 5. OBLIGATIONS AND LIABILITY LIMITATION
5.1 OBLIGATIONS OF THE CUSTOMER. Customer shall be responsible for:
A. The payment of all charges applicable to the Service (including charges
incurred as a result of fraud or unauthorized use of the Service).
B. Compliance with SPLITROCK's Acceptable Use Policy;
C. Providing the level of power, heating and air conditioning necessary to
maintain the proper environment on the Premises for the provision of Service;
5.2 LIMITATIONS OF LIABILITY OF SPLITROCK. The liability of SPLITROCK for
damages, if any, arising out of the furnishing of Service, including but not
limited to mistakes, omissions, interruptions, delays, tortious conduct of
errors, or other defects, representations, use of Service or arising out of the
failure to furnish Service,
whether caused by acts of commission or omission shall be limited to the
extension of credit allowances. The extension of such credit allowance or
refunds shall be the sole remedy of Customer and the sole liability of
SPLITROCK. Neither Party shall be liable for any indirect, incidental,
special, consequential, exemplary or punitive damages (including but not
limited to damages for lost profits or lost revenues), whether or not caused
by the acts or omissions or negligence of its employees or agents, and
regardless of whether such Party has been informed of the possibility or
likelihood of such damages.
5.3 DISCLAIMER OF WARRANTIES. SPLITROCK MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW. STATUTORY OR
OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN OR IN ANY APPLICABLE SERVICE LEVEL
AGREEMENT.
SECTION 6. CONFIDENTIAL INFORMATIOON
6.1 DISCLOSURE AND USE. The Confidential Information disclosed by either Party
constitutes the confidential and proprietary information of the disclosing Party
and the receiving Party shall retain same in strict confidence and not disclose
to any third party except as authorized by these terms and conditions without
the disclosing Party's express written consent.
6.2 Exceptions. Notwithstanding the foregoing, each Party's confidentiality
obligations hereunder shall not apply to information which:
A. is already known to the receiving Party:
B. becomes publicly available without fault of the receiving Party;
C. is rightfully obtained by the receiving Party from a third party without
restriction as to disclosure, or is approved for release by written
authorization of the disclosing Party;
D. is developed independently by the receiving Party without xxx of the
disclosing Party's Confidential Information; or
E. is required to be disclosed by law.
6.3 Publicity. This MSA shall not be construed as granting to either Party any
right to *use Party's or its affiliates' trademarks, service marks or trade
names or otherwise refer to the other Party in any marketing * or activities
with the forgoing publication or press release contractual relationship between
SPLITROCK and Customer, without the written consent of the other Party, except
as may be required by law.
SECTION 7. GENERAL TERMS
7.1 FORCE MAJEURE. Except with respect to payment obligations, 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, including but not limited to: acts of God, fire, flood or
other catastrophes; any law, order, regulation, direction, action, or request of
any governmental entity or agency, or any civil or military authority; national
emergencies, insurrections, riots, wars, unavailability of rights-of-way or
materials; or strikes, lock-outs work stoppages, or other labor difficulties.
7.2 ASSIGNMENT OF TRANSFER. Customer may not transfer or assign this MSA without
the express prior written consent of SPLITROCK, whose consent shall not be
unreasonably withheld, and then only when such transfer or assignment can be
accomplished without interruption of the use or location of Service. These terms
and conditions shall apply to all such permitted transferees or assignees.
Customer shall, unless otherwise expressly agreed by SPLITROCK in writing,
remain liable for the payment of all charges due under each Customer Order.
7.3 NOTICES. Any notice between the Parties shall be deemed properly given when
delivered, if delivered in person, or when sent via overnight courier,
electronic mail or when deposited with the U.S. Postal Service to the addresses
first listed above.
7.4 INDEMNIFICATION BY CUSTOMER. Customer shall indemnify, defend and hold
SPLITROCK harmless from claims, loss, damage, expense (including attorney's fees
and court costs), or liability (including liability for patent infringement)
arising from (1) any claims made against SPLITROCK by any end user in
connection with the delivery or consumption of Service. (2) use of facilities
furnished by SPLITROCK in a manner inconsistent with the terms thereof or in a
manner that SPLITROCK did not contemplate and over which SPLITROCK exercises no
control and (3) all other ___________ damage expense including attorney's fees
and court costs, or liability arising out of any commission or omission by
Customer in connection with the Service.
7.5 INDEMNIFICATION BY SPLITROCK. SPLITROCK shall indemnify, defend and hold
Customer harmless from claims, loss, damage, expense (including attorney's fees
and court costs), or liability (including liability for patent infringement)
arising from all claims, loss, damage expense (including attorney's fees and
court costs), or liability for property damage or personal injury to the extent
that such claims arise out of or are caused by SPLITROCK's negligence or willful
misconduct.
7.6 CONTENTS OF COMMUNICATIONS. SPLITROCK shall have no liability or
responsibility for the content of any communications transmitted via the Service
by Customer or any other party, and Customer shall hold SPLITROCK harmless from
any and all claims (including claims by governmental entities seeking to impose
sanctions) related to such content.
7.7 ENTIRE UNDERSTANDING. These terms and conditions, including any Customer
Orders executed hereunder (and any tariff applicable to the delivery of
Service), constitute the entire understanding of the Parties related to the
subject matter hereof. In the event of a conflict between these terms and
conditions and any Customer Order executed hereunder, the Customer Order shall
control. These terms and conditions shall be governed and constructed in
accordance with the laws of the State of Texas.
7.8 NO WAIVER. No failure by either Party to enforce any rights hereunder shall
constitute a waiver of such right unless otherwise specifically set forth
herein. Notwithstanding any other section of these terms and conditions, the
non-breaching Party shall be entitled to seek equitable relief is protect its
interests including but not limited to preliminary and permanent injunctive
relief. Nothing stated herein shall be constructed to limit any other remedies
available to the Parties.
7.9 DISPUTE RESOLUTION. Any dispute which the parties are unable to resolve upon
written notice to the Defaulting Party, may immediately be submitted to the
American Arbitration association for binding arbitration pursuant to the
Commercial Arbitration Rules with proceedings conducted in Houston, Texas;
however, the Parties shall immediately proceed to negotiate a resolution in good
faith until such proceeding. Notwithstanding any other section of these terms
and conditions, the nonbreaching Party shall be entitled to seek equitable
relief to protect its interests, including but not limited to preliminary and
permanent injunctive relief. Nothing stated herein shall be constructed to limit
any other remedies available to the Parties.
7.10 INTELLECTUAL Property. Nothing contained in this MSA shall be construed as
conferring by implication, estoppel or otherwise, any license or right under any
patent, trade name or copyright of SPLITROCK or Customer.
7.11 Conflicting Provisions. In the event of a conflict between the provisions
of the MSA and any Attachment thereto, the following hierarchy shall control in
interpreting the conflicting language: (i) IDL-001R, (ii) OAF-001, (iii)
IDL-004, (iv) IDL-005, and (v) MSA.
Free Network, Inc. ("Customer") SPLITROCK SERVICES, INC. ("SPLITROCK")
Signature /s/ Xxx XxXxxxxxxx Signature /s/ Xxxxx X. Xxxxxxx
-------------------------- ------------------------------
Name Xxxxxx (Bob) XxXxxxxxxx Name Xxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Title President/CEO Title EVP & CMO
------------------------------ ----------------------------------
Date 10-1- 99 Date 9-30-99
------------------------------ ----------------------------------
SPLITROCK
SERVICE DESCRIPTION: INTERNET DIAL
STANDARD FEATURES:
o V.90/56Kdial Access to the Internet
o 24 X 7 NOC support
o RADIUS proxy to customer end point authentication server
OPTIONAL FEATURES:
o Primary and Secondary DNS
o Customer Care Web site
o Splitrock run RADIUS authentication
Commitments
o SPLITROCK requires a minimum volume commitment from Customer to
sign a specified number of Subscribers within twelve (12) months,
and a 3-year contract term.
o SPLITROCK requires Fee of Twenty-Five Thousand Dollars ($25,000)
that will be applied against billing upon the achievement of
minimum committed volume within the agreed ramp period.
Application of the $25,000 begins on the 13th month.
Pricing:
SEE ATTACHMENT
SPLITROCK
ACCEPTABLE USE POLICY
Inc. ("SPLITROCK and applies to all SPLITROCK's Customers and Customer's
Subscribers (collectively "Users"). Use of the SPLITROCK Network continues on
the User acceptance of and agreement to abide by all policies of SPLITROCK
including this which is in addition and supplements the terms of the applicable
Master Services Agreement and SPLITROCK reserves the right to modify this policy
at any time, effective upon posting to the SPLITROCK web page http:
XXX.XXXXXXXXX.XXX. SPLITROCK does not monitor, verify, warrant or validate the
integrity, accuracy or quality of information or data it receives or transmits.
Accordingly, SPLITROCK neither controls nor accepts responsibility for the
content of any communications that are transmitted or made available to Users of
its network and or services.
A. Lawful Use
The SPLITROCK Network may be used only strictly in accordance with all
international, federal, state and local laws, tariffs, ordinances and
regulations and SPLITROCK may report to legal authorities any content that is or
is believe to be unlawful, may disclose to such authority the author of such
content and will cooperate with law enforcement agencies and other parties
investigating or prosecuting claims of illegal or inappropriate activity. This
includes without limitation, material protected by copyright, trademark, trade
secret or other intellectual property right, material that is obscene or
constitutes child pornography, material that is libelous, defamatory, hateful,
or constitutes an illegal threat or abuse material that violates export control
laws or regulations and material that encourages conduct that would constitute
criminal offense or give rise to civil liability.
B. Privacy
SPLITROCK makes no guarantee regarding the security and integrity of any data or
information transmitted. Users must respect the privacy of others, shall not
intentionally seek information on, obtain copies of , or modify files, other
data or passwords belonging to others or represent themselves as another User
unless explicitly authorized to do so by that User. Revealing a User password to
others is strictly prohibited. Attempting to obtain access beyond that for which
User is authorized is strictly prohibited, including illegal or unauthorized
accessing known as "hacking."
C. Network Integrity
Use of SPLITROCK's Network and/or any attached network in a manner that
precludes or significantly hampers its use by others is not allowed. Connections
which create routing patterns that are inconsistent with the effective and
shared use of the network may not be established . Users must respect the
integrity of computing and network systems. Examples of prohibited uses include,
without limitation:
(i.) Unauthorized access to or use of data, systems or networks,
including any attempt to probe, scan or test the vulnerability of
a system or network or to breach security or authentication
measures without express authorization of the owner of the system
or network;
(ii.) Unauthorized monitoring of data or traffic on any network or system
without express authorization of the owner of the system or network;
(iii.) Interference with service to any User, host or networking including,
without limitation, mailbombing, flooding, deliberate attempts to
overload a system and broadcast attacks;
(iv.) Distribution of Internet Viruses, Worms. Trojan Horses or other
destructive activities; and
(v.) Modification of IP packet content in a malicious manner or forging
of any TCP-IP packet header or any part of the header information in
an e-mail, chat room or a newsgroup posting.
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D. E-Mail
Unsolicited advertising is prohibited. Other prohibited activities include:
i. Sending unsolicited commercial or bulk e-mail.
ii. Using another site's mail server to ready mail, without express
permission of the site.
iii. Repeated, unsolicited and or unwanted communication of an intrusive
nature
iv. Posing or e-mailing of scams such as "make-money fast" schemes or
pyramid chain letters and v. Making fraudulent offers of products
items or services originating from your account.
E. XXXXXX.XXXX
All SPLITROCK Users agree to comply with the guidelines and restrictions of each
news or chat group unconditionally as incorporated herein by reference. Without
limitation of the foregoing, the following activities are prohibited:
(i) Engaging in excessive cross-posting or multi-posting ("spamming");
(ii) Making any posting for commercial purposes (including without
limitation the posting to specific URL's for commercial purposes),
except where such postings are expressly permitted under the charter
and/or Frequently Asked Questions (FAQ) of an applicable newsgroup;
(iii) Canceling newsgroup postings other than their own, or using
auto-responders or cancel-boss (or similar automated or manual
routines) which generate excessive network traffic or disrupt Usenet
newsgroup e-mail use by other (except in cases of official newsgroup
moderators performing their duties): and
(iv) Disrupting newsgroups and or discussion groups with materials,
postings, or activities that are frivolous, unlawful, obscene,
threatening, abusive, libelous, hateful, excessive, or repetitious,
unless such materials or activities are expressly allowed or
encouraged under the newsgroup's name, FAQ, or charter.
F. Remedial Action
Responsibility for avoiding the harmful activities as described herein rests
primarily with the User. When SPLITROCK learns of possible inappropriate use, it
may take any of a variety of actions, including but not limited to, removing
information that violates its policies, and/or restricting or terminating access
to the SPLITROCK Network without notice.
How to Report Abuse
If you become aware of inappropriate use, direct the information to
XXXXX@XXXXXXXXX.XXX who will evaluate all information before taking any
action and upon evaluation may take any appropriate action, including but
not limited to :
(i) Issuing written or verbal warnings;
(ii) Suspending newsgroup posting privileges;
(iii) Suspending the User account; and
(iv) Terminating the User Account
G. Limitation of Liability
SPLITROCK SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF USE, ETC., EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY USER. SPLITROCK SHALL NOT BE
LIABLE FOR ANY DIRECT OR ACTUAL DAMAGES OF USER, EXCEPT TO THE EXTENT SPECIFIED
IN A WRITTEN OR ELECTRONIC AGREEMENT ENTERED INTO BETWEEN SPLITROCK AND
CUSTOMER. SPLITROCK MAKES NO WARRANTIES OR REPRESENTATIONS HEREIN, EITHER
EXPRESS OR IMPLIED. CONCERNING THE SPLITROCK NETWORK, AND EXPRESSLY DISCLAIMS
WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, THE WARRANTY OF
MERCHANTABILITY AND ANY OTHER WARRANTY IMPLIED BY LAW.
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