Confidential Treatment has been requested for portions of this Exhibit. The
confidential portions have been redacted and are denoted by [*]. The
confidential portions have been filed separately with the Securities and
Exchange Commission.
Exhibit 10.6
ZIPLINK-1ST UP
STRATEGIC ALLIANCE AGREEMENT
This document is an agreement between Ziplink, Inc. ("Ziplink"), with its
principal offices at Tower 1, 5th Floor, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX
00000 and 0xxXx.xxx Corporation ("1stUp"), with its principal offices at 000
Xxxxxxxxxx Xx., Xxxxx 000, Xxx Xxxxxxxxx, XX 00000.
WHEREAS Ziplink wishes to provide Internet connectivity to a preferred
advertisement supported Internet access service;
WHEREAS 1stUp wishes to obtain Internet connectivity through a preferred
Internet connectivity vendor.
NOW THEREFORE, in consideration of the mutually agreed upon terms and
conditions set forth herein, the parties' agreement and understanding is as
follows:
1.0 SERVICE
1.1 Ziplink shall provide end users accessing the Internet through 1stUp's
advertisement supported Internet access service ("end users") with Internet
dial-up connectivity on a nationwide basis on an as-needed, as-requested
basis.
1.2 For each complete hour of dial-up connectivity used by end-users, 1stUp
will pay to Ziplink [*]. Ziplink warrants that no other advertisement
supported Internet access service shall receive a lower rate for dial-up
connectivity from Ziplink than that afforded to 1stUp for similar volumes
and terms.
1.3 Ziplink shall invoice 1stUp on a monthly basis for the hours of
connectivity used by end users. Ziplink will make available to 1stUp
detailed network usage statistics, including but not limited to usage
information by dial in number and connection and disconnect rates.
1.4 The parties agree to negotiate in good faith a minimum commitment of hours
of use by end users, per month, guaranteed by 1stUp on the Ziplink
network. Such negotiation shall commence 90 days after the date on which
Ziplink's services are first made available to end users (the "Service
Availability Date"). If 120 days after the Service Availability Date the
parties have not each executed a written agreement regarding a minimum
commitment, this agreement shall immediately terminate. There shall be
no minimum commitment of hours of use by end users until such time as the
parties execute such a written agreement, and the minimum commitment shall
run only from the date of execution of the written agreement forward.
2.0 SERVICE STANDARDS
2.1 Ziplink agrees that ten (10) days prior to the Service Availability Date,
the connectivity service it affords to end users will meet the technical
requirements outlined in Exhibit A: Ziplink Technical Requirements.
2.2 Ziplink agrees that forty-five (45) days prior to the Service Availability
Date, it will provide to 1stUp a list of all dial-up numbers currently
available on the Ziplink network.
2.3 Provided that 1stUp has provided usage forecasts to Ziplink at least 90
days in advance, Ziplink shall maintain at least P.05 Grade of Service
("GOS") for each dial system. P.05 is defined as dial service call
blocking (busies) and disconnects not initiated by end-users (disconnects),
during any given hour of the dial system that will not exceed 5% (or 5 in
100
attempts) as measured by Ziplink network management tools and, if
available, Inverse Network Technology network management tools. Ziplink
shall maintain records reflecting rates of dial service call blocking on
an hour-by-hour basis, which records shall be made available to 1stUp
upon request. If Ziplink fails to meet the GOS three (3) or more times,
1stUp reserves the right to terminate this agreement upon ten (10) days
written notice.
2.4 Ziplink may perform routine network maintenance during the hours of 2 a.m.
and 4 a.m. Pacific Standard Time. Ziplink's service will be available
99.5% or more of the remaining scheduled total minutes of up time each
month ("Service Availability Requirement"). If Ziplink fails to meet the
Service Availability Requirement two (2) or more times, 1stUp shall have
the right to terminate this agreement upon ten (10) days written notice.
2.5 Ziplink will make available a Program Manager with a high degree of
familiarity with the 1stUp's engineering requirements and specifications,
as well as the Technical Requirements set forth in Exhibit A, for a weekly
conference call with 1stUp representatives beginning within seven (7) days
of the date Ziplink executes this agreement. Ziplink will provide to 1stUp
24x7 support personnel familiar with Ziplink network and the 1stUp system.
The Program Manager will be available 24x7 on an on call basis to the
Ziplink support personnel.
3.0 JOINT PROMOTIONAL ACTIVITIES
3.1 During the term of this agreement Ziplink shall designate and refer to
1stUp as its "Preferred Advertisement Supported Internet Access Service,"
so long as the price of 1stUp's service remains equal to or better than
competing advertisement supported Internet access services. However, this
designation shall not prohibit nor prevent ZipLink from entering into
strategic agreements with other advertisements supported Internet access
services.
3.2 During the term of this agreement, 1stUp shall designate and refer to
ZipLink as a "Preferred Provider of National Wholesale Internet
Connectivity Services." However this designation shall not prohibit nor
prevent 1stUp from enterting into strategic agreements with any other
provider of Internet connectivity services.
3.3 ZipLink and 1stUp will participate in a jointly developed and jointly
approved press release announcing the alliance between the two companies.
3.4 During the term of this agreement, ZipLink shall introduce 1stUp
representatives to representatives of third party companies with whom
ZipLink has or develops strategic relationships. ZipLink shall encourage
these third party companies to enter into agreements with 1stUp under
which 1stUp will provide its Internet Access Services.
4.0 TERM AND TERMINATION
Unless terminated as set forth in this Paragraph or in Paragraphs 2.3 and
2.4 above, this Agreement shall take effect as of July 26, 1999 and shall
endure for a term of thirty-six (36) months until July 31, 2002. The
Agreement may be terminated by either party at any time, for any reason
or for no reason, upon ninety (90) days written notice to the other.
5.0 MISCELLANEOUS
5.1 This Agreement shall not be assigned by either party without the written
consent of the other, which consent shall not be unreasonably withheld
provided, however, that no such consent shall be necessary in the event of
an assignment in connection with the sale or transfer of all or
substantially all of the assets or business operations of either party.
5.3 Any and all disputes, claims or controversies related to or arising under
this Agreement shall be settled by binding arbitration before one
arbitrator under the then current rules of the American
Arbitration Association. The arbitration shall be held in Boston,
Massachusetts if arbitration is requested by 1stUp and in San Francisco,
CA if ZipLink requests arbitration. Any decision of the arbitrator shall be
final and judgement upon the arbitration award may be entered in any court
of competent jurisdiction.
5.4 This Agreement constitutes the sole agreement between 0xxXx.xxx and
Ziplink respecting the subject matter hereof and will duly supersede any
and all other agreements, either oral or in writing. The Agreement shall
only be modified or amended in writing, signed by both parties.
5.5 All notices required by this Agreement will be effective and deemed
delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested,
properly addressed and with the correct postage of one (1) business day
after pick-up by the courier service when sent by overnight courier,
properly addressed and prepaid.
IF TO 1STUP IF TO ZIPLINK
0xxXx.xxx Corporation ZipLink, Inc
0000 Xxxxxxxxxx Xx. Xxxxx 000 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Tower 1, 5th Floor
Attention: Xxxxx Xxxxxxxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
In Witness whereof, the parties have executed this Strategic Alliance
Agreement on the dates noted below:
AGREED AND ACCEPTED
ZipLink, LLC 0xxXx.xxx Corporation
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx Xxxx
--------------------------------- ------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxxxx Xxxx
Title: Chief Strategic & Development Officer Title: President & CEO
Date: 07-23-99 Date: 07-23-99
---------------------------- -------------------------
Exhibit A:
Ziplink Technical Requirements
RADIUS
All radius authentication requests should be proxied to 0xxxx.xxx Radius
servers. ZIPLINK should be able to support a round-room system to load
balanace and fallover between multiple 0xxxx.xxx Radius servers. ZIPLINK
Radius should detect 0xxxx.xxx Radius server failure within 30 seconds and
stop sending Radius requests to that server. It should check at least every
30 seconds to see if that server is back up and then continue to send
requests once the server is back up.
ZIPLINK Radius should send Radius authentication requests, Radius Accounting
start, and Radius accounting stop records. The Accounting records should
include (at least): Username, Framed IP Address, Modem Tx and Rx speed,
Disconnected reason, NAS Port, Called Number, Calling Number and a timestamp.
Radius should conform to the appropriate RFC's (2138 and 2139) and should
support using UDP ports 1645 and 1646.
User Disconnect
Ziplink should be able to support a user Disconnect program that accepts
input from a 0xxxx.xxx server process. This program should accept at least a
username and Framed IP Address (for verification) from 0xxxx.xxx, and should
disconnect the user. The communication between the ZIPLINK and 0xxxx.xxx
should be signed or encrypted in some way for authentication. MDS
authentication is acceptable.
The User Disconnect program should return success or failure on disconnect of
the user, and a standard Radius accounting stop record should be sent for
every user disconnected. The connection between 0xxxx.xxx and the ZIPLINK
should use TCP for reliability, and should preferably be a daemon on a port
and not a Command-line Interface.
AMMENDMENT 1 TO STRATEGIC ALLIANCE AGREEMENT
This AMENDMENT is made as of August, 1999 (the "Effective Date") by
and between Ziplink Inc. ("Ziplink"), with its principal offices at Tower
1, 5th Floor, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 and 0xxXx.xxx Corporation
("1stUp"), with its principal offices at 000 Xxxxxxxxxx Xx., Xxxxx 000, Xxx
Xxxxxxxxx, XX 00000 for the purposes of modifying the Strategic Alliance
Agreement between the parties, dated as of July 1999 ("Agreement").
WHEREAS, the parties have entered into the Agreement so that Ziplink shall
provide internet connectivity to a preferred advertisment supported internet
access service and 1stUp shall obtain internet connectivity through a
prefferd internet connectivity vendor.
WHEREAS, the parties wish to amend the Agreement to discount the first two
months of payments from 1stUp to Ziplink, provided 1stUp meets certain
conditions regarding integration of the Ziplink access numbers.
Now, therefore, The parties agree as follows:
1. Except as amended by this Amendment, the terms and conditions of the
Agreement shall remain in full force and effect.
2 1stUp agrees to devote special engineering resources sufficient to
immediately integrate into its ad-supported internet access application
functioning access numbers provided by Ziplink. 1stUp further agrees that
no later than August 12, 1999 it shall make these numbers available to
endorsers accessing the ad-supported internet access offering provided by
0xxXx.xxx and its affiliate partners, including Alta Vista Company.
3 For the two successive 30 day billing periods, beginning on August 12,
1999 and ending on October 12, 1999. Ziplink agrees to discount its total
monthly xxxx to 1stUp, as defined by the pricing items outlined in Section
1.2 of the Agreement by twenty-five (25) percent.
4 Ziplink further agrees that it will complete development and integration
of the technical specifications described in the Agreement under Exhibit A:
Ziplink Technical Requirements no later than August 30, 1999. Ziplink
agrees that for every week after August 30, that Ziplink fails to deliver
the complete Technical Requirements, 1stUp shall be awarded an additional
month of discounted access, discounted by twenty-five (25) percent according
to the terms of Section 3 of this Amendment 1stUp understands that
development and integration delays on the part of 1stUp will extend the
delivery deadline by a period of time equivalent to any such delay(s).
In Witness whereof, the parties have executed this Amendment on the dates
noted below:
AGREED AND ACCEPTED
Ziplink, LLC 0xxXx.xxx Corporation
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxx
------------------------------- ------------------------------
By: Xxxxx Xxxxxxx By: Xxxxx Xxxxxxxxx
Title: President Title: Vice President, Marketing
AMENDMENT 2 TO STRATEGIC ALLIANCE AGREEMENT
This AMENDMENT is made as of December 13, 1999 between Ziplink, Inc.
("Ziplink") with its principal offices at Tower 1, 5th Floor, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000 and 0xxXx.xxx Corporation ("1stUp"), with it
principal offices at 00 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 for
the purpose of modifying the Strategic Alliance Agreement between the
parties, dated as of July 1999 ("Agreement")
WHEREAS, the parties have entered into the Agreement so that Ziplink shall
provide Internet connectivity to 1stUp.
WHEREAS, the parties wish to amend the Agreement to revise pricing and
committment levels.
NOW THEREFORE the parties agree as follows:
1. Except as amended by this Amendment, the terms and conditions of the
Agreement shall remain in full force and effect.
2. Pursuant to Section 1.4 of the Agreement the parties hereby agree that
during the term of the Agreement there shall be no minimum commitment
of hours of use by end users (as defined in the Agreement) guaranteed
by 1stUp on the Ziplink network. The parties further ackowledge and
agree that this Section 2 constitutes the written agreement between
Ziplink and 1stUp required under Section 1.4 of the Agreement and that
all conditions under Section 1.4 of the Agreement have been satisfied.
3. The Agreement shall be amended by adding an Exhibit B thereto which
sets forth fee schedule attached hereto as "Exhibit B--Fee Schedule."
4. Section 1.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
1.2 Subject to the terms and conditions set forth herein, 1stUp
shall pay Ziplink a monthly fee ("Usage Fee") which shall
be payable in accordance with the invoice delivered by
Ziplink to 1stUp pursuant to Section 1.3 hereof. The Usage Fee
shall be calculated by multiplying the total number of hours
of usage during a given month by the end users (as defined in
Section 1.1) on the Ziplink Network as counted by the Ziplink
authentication server over the course of the month by the
applicable dollar amount per hour (the "Hourly Fee") set
forth in Exhibit B attached hereto. Ziplink warrants that no
other advertising supported Internet access service shall
receive a lower rate for dial-up connectivity from Ziplink
than that afforded to 1stUp for similar volumes and terms.
5. The Agreement shall be amended by adding a new section 5.6 thereto
which shall read in its entirety as follows:
5.6 1stUp agrees that it shall make commercially reasonable
efforts to provide Ziplink with at least 120 days prior
written notice in the event that 1stUp decides to decrease
the number of hours of use by end users (as defined in
Section 1.3) on the Ziplink network by more than 50%;
provided, however, that no such prior written notice shall be
required in the event that 1stUp makes such determination
within 120 days of July 31, 2002. 1stUp agrees not to remove
in each month, during such notice period, more than one quarter
of the estimated decrease at the time such notice is given.
The foregoing provisions of this Section 5.6 shall not apply
in the event (i) this Agreement is terminated by 1stUp for
cause or pursuant to Sections 2.3, 2.4, or 4.0, (ii) this
Agreement is terminated by Ziplink pursuant to Section 4.0,
or (iii) Ziplink fails to maintain at least P.05 Grade of
Service as defined in Section 2.3 of the Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment to
the Agreement on the date set forth below:
AGREED AND ACCEPTED
0xxXx.xxx Corporation Ziplink, Inc.
/s/ Charltes Xxxx /s/ Xxxxxx X. Xxxxx
---------------------------------- ----------------------------
By: Xxxxxxx Xxxx By: Xxxxxx X. Xxxxx
Title: CEO Title: CSO
Date: 12/13, 1999 Date: 12/13, 1999
EXHIBIT B - FEE SCHEDULE
Subject to the conditions contained in the Agreement. 1stUp shall pay the
Hourly Fee set forth below multiplied by the aggregate number of Monthly
Hours.
Monthly Hours Hourly Fee
------------- -----------
0-749,999 [*]
750,000-999,999 [*]
1,000,000-1,499,999 [*]
1,500,000-1,999,999 [*]
-greater than or equal to- 2,000,000 [*]
THIRD AMENDMENT TO STRATEGIC ALLIANCE AGREEMENT
This third amendment ("Amendment") with an effective date of July 1, 2000
("Effective Date") amends the Strategic Alliance Agreement between Ziplink,
Inc., ("Ziplink") and 0xxXx.Xxx Corporation ("1stUp"), dated July 23, 1999, and
all amendments and addenda thereto ("Agreement"). All terms and conditions of
the Agreement not expressly modified herein shall remain in full force and
effect. Unless otherwise provided in this Agreement, capitalized terms contained
herein shall carry the same definitions as specified in the Agreement.
For good and valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the Parties hereby agree to amend the Agreement as
follows:
1. DELETE EXHIBIT B OF THE AGREEMENT AND REPLACE WITH THE FOLLOWING:
EXHIBIT B - FEE SCHEDULE
------------------------------------- ----------------------------------- -----------------------------------
Cumulative Hours Applicable Hourly Fee for Applicable Hourly Fee for Basic
Of Usage by End Users in United United States and Select Canada* Canada* ($USD)
States and Canada
------------------------------------- ----------------------------------- -----------------------------------
0 - 749,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
750,000 -999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
1,000,000 - 1,499,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
1,500,000 - 1,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
2,000,000 - 2,499,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
2,500,000-3,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
4,000,00-5,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
6,000,00-8,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
9,000,000 and up [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
* "Select Canada" refers to Montreal, PQ, Toronto, ON, and Vancouver, BC usage.
"Basic Canada" refers to all other Canadian cities.
The applicable Hourly Fees shall be determined by the cumulative monthly
usage hours in the United States and Canada and shall apply to the entire set
of applicable usage hours. For example, if in a certain month, 1,800,000
hours are achieved in the United States and Select Canada and 400,000 hours
are achieved in Basic Canada, the applicable Hourly Fees are those fees set
forth above in the 2,000,000 - 2,499,999 pricing tier (2,200,000 cumulative
hours). In this example, the Hourly Fee of [*] shall apply to all 1,800,000
hours achieved for United States and Select Canada and the Hourly Fee of [*]
will apply for all 400,000 hours achieved for Basic Canada (aggregate [*]
Usage Fee).
2. ADD A NEW SECTION 1.5 TO THE AGREEMENT THAT READS AS FOLLOWS:
"1.5 0xxXx.xxx shall provide to Ziplink, on a monthly basis, a non-binding
three-month rolling forecast of Network usage."
IN WITNESS WHEREOF duly authorized representatives of the parties have executed
this Amendment.
ZIPLINK, INC. 0XXXX.XXX CORPORATION
By: /s/ Xxxx X. Manual By: /s/ Xxxxxxx Xxxx
---------------------------- ----------------------------
Name: Xxxx X. Manual Name: Xxxxxxx Xxxx
-------------------------- --------------------------
Title: VP Sales Title: CEO
--------------------------- ---------------------------
FOURTH AMENDMENT TO STRATEGIC ALLIANCE AGREEMENT
This fourth amendment ("Amendment") with an effective date of JULY 25, 2000 ,
2000 ("Effective Date") amends the Strategic Alliance Agreement between Ziplink,
Inc., ("Ziplink") and 0xxXx.Xxx Corporation ("1stUp"), dated July 23, 1999, and
all amendments and addenda thereto ("Agreement"). All terms and conditions of
the Agreement not expressly modified herein shall remain in full force and
effect. Unless otherwise provided in this Agreement, capitalized terms contained
herein shall carry the same definitions as specified in the Agreement.
For good and valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the Parties hereby agree to amend the Agreement as
follows:
1. DELETE EXHIBIT B OF THE AGREEMENT AND REPLACE WITH THE FOLLOWING:
EXHIBIT B - FEE SCHEDULE
------------------------------------- ----------------------------------- -----------------------------------
CUMULATIVE HOURS APPLICABLE HOURLY FEE FOR UNITED APPLICABLE HOURLY FEE FOR BASIC
OF USAGE BY END USERS IN UNITED STATES AND SELECT CANADA* CANADA* (USD)
STATES AND CANADA
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
0 - 749,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
750,000 - 999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
1,000,000 - 1,499,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
1,500,000 - 1,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
2,000,000 - 2,499,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
2,500,000 - 2,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
3,000,000 - 4,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
5,000,000 - 6,999,999 [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
7,000,000 and up [*] [*]
------------------------------------- ----------------------------------- -----------------------------------
* "Select Canada" refers to Montreal, PQ, Toronto, ON, and Vancouver, BC
usage. "Basic Canada" refers to all other Canadian cities.
The applicable Hourly Fees shall be determined by the cumulative monthly
usage hours in the United States and Canada and shall apply to the entire
set of applicable usage hours. For example, if in a certain month,
1,800,000 hours are achieved in the United States and Select Canada and
400,000 hours are achieved in Basic Canada, the applicable Hourly Fees are
those fees set forth above in the 2,000,000 - 2,499,999 pricing tier
(2,200,000 cumulative hours). In this example, the Hourly Fee of [*] shall
apply to all 1,800,000 hours achieved for United States and Select Canada
and the Hourly Fee of [*] will apply for all 400,000 hours achieved for
Basic Canada (aggregate [*] Usage Fee).
IN WITNESS WHEREOF duly authorized representatives of the parties have executed
this Amendment.
ZIPLINK, INC. 0XXXX.XXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxx
---------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxx
-------------------------- --------------------------
Title: Sales Director Title: President/CEO
