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EXHIBIT 10.10
This MASTER SERVICE AGREEMENT between the below-named Client and Genuity Inc.
("Provider" or "GENUITY") (collectively referred to as the "Parties")
establishes the terms and conditions under which Provider will provide
communications services to the client.
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Client TravelWeb, Inc.
State of Incorporation: Delaware
Principal Place of Business:
Address: 0000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Address for notices:
Attn: Mr. Xxxx Xxxxxxxxx
Provider:
Genuity Inc. Address for Notices:
State of Incorporation: Nevada Genuity Inc. Principal Place
of Business 0000 X. Xxxxxxx
0000 X. Xxxxxxx Xxxxxxx, XX 00000
Xxxxxxx, XX 00000
Attn: Contract Administration
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1. The Parties anticipate that Client may, at Client's sole discretion, issue
one or more Data Service Orders ("Service Orders") describing certain services
which Client desires to purchase from Provider, and which set forth the prices,
minimum term of service and other service specific details. All Service Orders
shall be subject to the terms and conditions of this Master Service Agreement
for the duration of the Service Order. If a Service Order is accepted in writing
by an authorized representative of Provider, it shall supersede any and all
prior agreements or understandings with respect to the service described
therein, and shall, together with such terms and conditions, comprise the full
and final agreement of the Parties. No term or condition hereof shall be
modified except by written agreement of both Parties and any preprinted terms
and conditions which may appear on Client's order form are expressly rejected
and are void. As used in this document, the word "Term" shall mean the total
duration of a Service Order and the phrase "Initial Term" shall mean the minimum
term of service as specified in a Service Order. The word "Agreement" shall
apply to all promises, terms and conditions of the Parties contained in this
Master Service Agreement or a Service Order.
2. The Initial Term of this Agreement shall be as set forth in the Service
Order placed hereunder and shall extend thereafter until terminated by either
Party upon no less than ninety (90) days' prior written notice. However,
Provider may terminate this Agreement or suspend service hereunder at any time
upon: (a) any failure of Client to pay any undisputed amounts as provided in
this Agreement, which event shall permit Provider to terminate this Agreement
and suspend service immediately upon notice to Client; (b) any breach by Client
of any material provision of this Agreement continuing for thirty (30) days
after receipt of notice thereof; (c) any insolvency, bankruptcy, assignment for
the benefit of creditors, appointment of a trustee or receiver or similar event
with respect to Client; or (d) any governmental prohibition or required
alteration of services to be provided hereunder or any violation of an
applicable law, rule or regulation. Any termination shall not relieve Client of
its obligation to pay any charges incurred hereunder prior to such termination.
The Parties' rights and obligations which by their nature would extend beyond
the termination, cancellation or expiration of this Agreement shall survive such
termination, cancellation or expiration.
3. Client is responsible for all Recurring and Non-Recurring Charges from and
after the Date of Acceptance, except that installation and start-up fees may be
invoiced by Provider for payment by Client concurrently with signature of this
Agreement by Provider. For purposes of this Agreement, the Date of Acceptance is
the earlier of 1) the date Client signs a Client Acceptance Letter or 2) two (2)
business days after Provider establishes a connection in which the
Provider-furnished service is functioning properly. Recurring Charges will be
prorated for the first and last month of the Agreement if service is not
provided for a complete month. Proration of a monthly charge will be based on
the number of days connection was available divided by total days in the month.
Provider's targeted service installation intervals are thirty (30) days after
order acceptance for on-net services and forty-five (45) days for off-net
services. In the event Client requests Provider to attempt to accelerate the
order process to install services more quickly, Client shall pay an Order
Expedite charge of $500. Order Expedite charges will apply to each site ordered
for which expended installation is requested.
4. During the Term Client shall pay Provider for services at the rates set
forth in the Service Order. Normal service charges shall be invoiced monthly in
advance. All amounts owed by Client shall be paid within thirty (30) days after
the date of the invoice and Provider reserves the right to charge interest on
all delinquent payments at an annualized rate of 2 percentage points above the
prime rate as announced in the Wall Street Journal from time to time.
5. Provider's xxxx shall separately identify any excise, sales, use, or other
taxes applicable to Provider's provision of service or equipment to Client, and
all such taxes, however designated (excepting those based on Provider's net
income), shall be paid by Client in addition to any other amount owing. Provider
will not collect any otherwise applicable tax if Client first provides Provider
with a valid tax exemption certificate.
6. At Client's request, Provider will respond to Client's report of service
interruption and attempt to resolve all problems of connectivity. If it is
determined that all facilities, systems and equipment furnished by Provider are
functioning properly, and that the connectivity problem arose from some other
cause, Provider will recover labor and materials cost for services actually
performed at the following rates, which shall be the usual and customary rates
for similar services provided by Provider to all clients in the same locality.
Labor (4 hour Minimum Charge):
7 a.m. to 7 p.m. week days/$150 per hour per Technician
All other times: $225 per hour per Technician
Materials: Cost to Provider x 1.15
Provider reserves the right to modify the above rates upon ninety (90) days
advance written notice to Client. Provider shall also be entitled to recover
from Client reasonable travel and related expenses of technicians required to
travel in connection with such services.
7. Provider may substitute, change or rearrange any equipment, facility or
system used in providing services at any time and from time to time, but shall
not thereby alter the technical parameters of the services provided thereunder.
Provider may at its discretion limit the burstable capacity available to Client
to a maximum of three (3) times the number of megabits purchased by Client
hereunder.
8. Client shall not cause or allow any facility or equipment of Provider to be
rearranged, moved, removed, disconnected, altered, or repaired without
Provider's prior written consent, which consent shall not be unreasonably
withheld. Client shall not create or allow any liens or other encumbrances to be
placed on any Provider equipment, facility or system arising from any act,
transaction or circumstance relating to Client. If Client elects to relocate or
otherwise change the place of services after commencement of the installation of
facilities, Client shall pay any disconnection, early cancellation or
termination charges reasonably incurred by Provider for the original location
and installation charges for the new location.
9. Provider will grant a credit allowance for service interruption calculated
and credited in fifteen (15) minute increments. A
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service interruption will be deemed to have occurred only if service becomes
unusable to Client as a result of failure of Provider's facility, equipment, or
personnel used to provide the service in question, and only where the
interruption is not the result of: (i) the negligence or acts of Client or its
agents; (ii) the failure or malfunction of non-Provider equipment or systems
not provided by Provider; (iii) circumstances or causes beyond the control of
Provider; or (iv) a service interruption caused by scheduled service
maintenance, alteration, or implementation. Such credits will be granted only
if (a) Client affords Provider full and free access to Client's premises to
make appropriate repairs, maintenance, testing, etc.; and (b) Client does not
unreasonably continue to use the service on an impaired basis.
For purposes of canceling or terminating a service provided under this
Agreement for a Provider service interruption, such service interruption order
must equal either twenty four (24) hours of cumulative service outages during
any continuous twelve (12) month period or a single outage of eight (8) hours
or more.
The foregoing states Client's sole remedy for service interruption under the
Agreement, and in no event shall Provider be liable for harm to business, lost
revenues, lost savings, or lost profits suffered by Client, regardless of the
form of action, whether in contract, warranty, strict liability, or tort,
including without limitation negligence of any kind, whether active or passive.
10. Provider's entire liability for any claim, loss, damage or expense from
any cause whatsoever shall in no event exceed sums actually paid to Provider by
Client, during the three (3) months immediately preceding the month of such
occurrence, for the specific service giving rise to the claim. Notwithstanding
the foregoing, Provider shall not be liable for any indirect, incidental,
consequential, punitive or special damages. No action or proceeding against
Provider shall be commenced more than one (1) year after service is rendered.
11. There are no warranties, representations or agreements, express or implied
either in fact or by operation of law, statutory or otherwise, including
warranties of merchantability or fitness for a particular purpose or arising
from a particular course of dealing, except those expressly set forth herein.
Provider makes no representations as to results that will be obtained by the
use of the service hereunder. PROVIDER shall not be liable to Client for
damages or for alteration, theft, loss or destruction of data, programs or
systems from accident, fraud, third party intrusion or otherwise, for failure
of authentication or encryption, or for failure of firewall protection or other
security failures, unless the same shall have been caused by the intentional
act of Provider.
12. In the event that Client cancels or terminates service at any time during
the Initial Term of this Agreement or any renewal thereof for any reason
whatsoever other than a service interruption (as described in Paragraph 9
above), Client agrees to pay Provider as liquidated damages (which shall not be
deemed a penalty) the following sums which shall become due and owing as of the
effective date of cancellation or termination and be payable in accordance with
Paragraph 3 above: 1) all Non-Recurring charges specified in the Service Order
and reasonably expended by Provider to establish service to Client; plus 2) if
cancellation or termination results from a default by Client, any
disconnection, early cancellation or termination charges reasonably incurred by
Provider; plus 3) all Recurring Charges specified in the Service Order for the
balance of the then current Term of this Agreement.
13. Client shall allow Provider continuous access and right-of-way to Client's
premises to the extent reasonably determined by Provider to be appropriate to
the provision and maintenance of services, equipment, facilities, and systems
hereunder. Client shall furnish Provider, at no charge, such equipment space
and electrical power as is reasonably determined by Provider to be required and
suitable to render services hereunder.
14. Client shall be liable for any damage to Provider equipment, facility,
and system which is caused by: (a) negligent or willful acts or omissions of
Client or its agents, employees or suppliers; or (b) malfunction or failure of
any equipment or facility provided by Client or its agents, employees or
suppliers. Client is responsible for identifying, monitoring, removing and
disposing of any existing hazardous materials (e.g., friable asbestos) prior to
any construction or installation work being performed by Provider at Client's
premises and Client shall indemnify, defend, and hold Provider harmless from any
claim, suit, loss, cost, or expense, including fines, abatement charges, legal
fees and court costs incurred in connection with hazardous materials on Client's
premises.
15. Client is solely responsible for the content of any transmissions using
Provider's services, or any other use of Provider's services, by Client or by
any person or entity Client permits to access Provider's services (a "User").
Client agrees that it and any User will not use the services for illegal
purposes (including but not limited to infringement of copyright or trademark,
misappropriation of trade secrets, prohibited munitions export, wire fraud,
invasion of privacy, pornography, obscenity and libel), or to interfere with or
disrupt other network users, network services or network equipment. Disruptions
include, but are not limited to, distribution of unsolicited advertising or
chain letters, repeated harassment of other network users, wrongly
impersonating another such user, falsifying one's network identity for improper
or illegal purposes, posting unsolicited articles to large numbers of such
users or to inappropriate groups, sending unsolicited mass e-mailings,
propagation of computer worms and viruses, and using the network to make
unauthorized entry to any other machine accessible via the network. If Provider
has reasonable grounds to believe that Client is utilizing the services for any
such illegal or disruptive purpose, Provider may suspend or terminate its
services to Client hereunder immediately upon notice to Client. Client shall
defend, indemnify, and hold harmless Provider from and against all liabilities
and costs (including reasonable attorneys' fees) arising from any and all
claims by any person based upon the content of any transmissions by Client or
any User using Provider's services or any other use of Provider's services by
Client or any User.
16. If so requested, Provider may assign on a temporary basis a reasonable
number of Internet Protocol ("IP") addresses from the address space assigned to
Provider by the InterNIC. The Client acknowledges that these addresses are the
property of Provider, are assigned to Client as a service by Provider, and are
not portable as such term is used by InterNIC. Provider reserves the right to
change these address assignments at any time during the term of this Agreement
if the architecture of Provider's network so requires it however, Provider
shall use reasonable efforts to avoid any disruption to Client resulting from a
renumbering requirement. Provider will give Client as much notice as possible
of any requirement to renumber. Client agrees that the addresses provided by
Provider shall be returned to Provider on the effective date of termination of
this Agreement, and that any renumbering required of Client thereafter shall be
the sole responsibility of Client.
17. Provider warrants that all traffic originating from Client will be routed
to the destination address via Provider's network, provided that the IP
addresses in use by Client are part of Provider's assigned address space. If
Client has or acquires its own IP addresses, Client shall confirm that all
other networks will accept and route traffic from Client.
18. Neither Party may assign this Agreement without the written consent of the
other Party (which consent shall not be unreasonably withheld or unduly
delayed), except that Provider may assign its rights and obligations hereunder:
(a) to any subsidiary, parent company, or affiliate of Provider; (b) pursuant
to any sale or transfer of substantially all the business of Provider; or (c)
pursuant to any financing, merger, or reorganization of Provider, Client
represents that it is purchasing Provider's services for use in Client's
business and agrees that it will not assign, sell or make available all or any
part of such purchase or services to any competitor of Provider.
19. If any provision of this Agreement is held by a court to be invalid, void
or unenforceable, the remainder of this Agreement shall nevertheless remain
unimpaired and in effect.
20. No license, joint venture or partnership, express or implied, is granted
by Provider pursuant to this Agreement.
21. Each Party agrees to maintain in strict confidence for a period of five
(5) years from disclosure all plans, designs, drawings, trade secrets, and
other proprietary information of the other Party
This document is the confidential and proprietary property of Provider and
belongs exclusively to it.
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which is disclosed in written or electronic form pursuant to this Agreement. No
obligation of confidentiality shall apply to disclosed information which the
recipient 1) already possessed without obligation of confidentiality; 2)
develops independently; or 3) rightfully receives without obligation of
confidentiality from a third party.
22. Except for payment of money, neither Party shall be liable for any delay or
failure in performance of any part of this Agreement to the extent such delay
or failure is caused by an event of Force Majeure, including but not limited
to, fire, flood, explosion, accident, war, strike, embargo, governmental
requirement, civil or military authority, Act of God, inability to secure
materials, labor or transportation, acts or omissions of common carrier or
warehouseman, failure of performance by third-party supplier, or any other
causes beyond its reasonable control. Any such delay or failure shall suspend
the Agreement until the Force Majeure condition ceases and the Term shall be
extended by the length of the suspension.
23. If this Agreement is entered into by more than one Client, each is jointly
and severally liable for all agreements, covenants and obligations herein.
24. Provider may use Client's name as a reference with third parties and as
part of Provider's general advertising materials.
25. This Agreement shall be governed by the laws of the State of Arizona
without regard to its choice of law provisions. The Parties agree that the
exclusive jurisdiction for all actions on claims hereunder or relating hereto
shall be the state and/or federal courts located in Phoenix, Arizona. In any
action between the Parties to enforce any material provision of this Agreement,
the prevailing Party shall be entitled to recover its legal fees and court
costs from the non-prevailing Party in addition to whatever other relief a
court may award.
26. Each person executing this Agreement on behalf of Providers or Client
represents and warrants that such person has been fully empowered to do so, and
that all necessary corporate actions (if any) required for the execution of
agreements have been taken.
27. This Agreement may be executed in one or more counterparts, each of which
shall be an original and all of which together shall be constitute one and the
same instrument.
28. The following are incorporated herein by reference and are agreed to by the
Parties:
Genuity Inc.: /s/ X.X. XXXXXXXXX
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By: X.X. Xxxxxxxxx
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Title: Director of Finance
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Date: 1-17-97
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TravelWeb, Inc.: /s/ XXXX XXXXXXXXX
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By: Xxxx Xxxxxxxxx
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Title: President
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Date: 97/1/15
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This document is the confidential and proprietary property of
Provider and belongs exclusively to it. Page 3
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ADDENDUM
TO THE
MASTER SERVICE AGREEMENT
BETWEEN GENUITY AND TRAVELWEB, INC.
Notwithstanding the foregoing provisions of the Master Service Agreement, the
parties hereto agree as follows:
Section one is hereby amended to include the quote forms for current and future
services to be a part of this Master Service Agreement As long as any certain
specific requests TravelWeb, Inc. may have are spelled out in a Genuity order
form and signed by a Genuity representative, the order form shall be considered
a part of this Master Service Agreement.
Section Two is hereby amended to include "However, Genuity and/or Client may
terminate the Agreement or suspend service at any time in the event of a breach
or failure to pay, bankruptcy, or government prohibition.
Section Six is hereby amended to include a one hour response time after the
Client contacts Genuity regarding a service interruption. This is to say, after
a representative from the client has contacted a service representative from
Genuity by dialing 1 888 GENUITY, the Genuity service department will have one
hour to report back to the client as to the status of the Client's request. This
in no way implies Genuity guarantees that the problem can be corrected within
one hour.
The hourly rates posted in Section Six are hereby capped at what they are
listed at in this Master Service Agreement for the duration of this contract.
Furthermore, in the event the problems are as a result of some failure by
Genuity to provide the services contracted for by the Client, the Client does
not have to pay any of the hourly charges.
Section Nine is hereby amended to include "in the event of a service
interruption which is equal to 12 hours over a 12 month period or a single
outage of 4 hours or more, Client may cancel or terminate service."
Section Eleven is hereby amended to include "any negligent acts and/or failure
to act as required to provide the services set forth herein."
Section Twelve is hereby amended to include "In the event Client elects to
cancel or terminate the service due to a breach or failure on Genuity's part,
Client owes Genuity nothing. Furthermore, if Genuity cancels or terminates
service to Client, the maximum charge to Client will be 90 days of service
costs."
Section Eighteen is hereby amended to expand the right of assignment to the
Client of this agreement making the right to assign mutual.
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Section Twenty Two is hereby amended to include the deletion of Genuity's
failure to perform due to inability to secure materials, labor or
transportation, acts or omissions of common carrier or warehouseman.
Additionally, Acts of God are limited to those acts which are not reasonably
foreseen and which could not reasonably be protected against.
Section Twenty Four is hereby amended to include "permission for Genuity to use
Client's name in advertising will be permitted provided it is submitted in
writing and approved by Client first.
Genuity Inc. TravelWeb, Inc.
By: /s/ XXXXXX X. XXXXXXXXX By: /s/ XXXX XXXXXXXXX
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Name: X. X. Xxxxxxxxx Name: Xxxx Xxxxxxxxx
Title: Director of Finance Title:
