Exhibit 10.6
SAVVIS
COMMUNICATIONS
BASIC INTERNET SERVICES AGREEMENT
This BASIC INTERNET SERVICES AGREEMENT (the "Agreement") is entered into this 12
day of December, 1997 between SAVVIS COMMUNICATIONS ENTERPRISES, L.L.C.
("SAVVIS"), and DATA RETURN CORPORATION ("You").
1. SAVVIS shall provide You one (1) dedicated connection(s) to the Internet
through SAVVIS' network from SAVVIS' closest Point of Presence (POP) at DS-
3 12mbps bandwidth (the "Connection"). You shall pay SAVVIS the sum of
$9,550 per month for the Connection plus a one time installation fee of
$1,000, the receipt of which is hereby acknowledged. SAVVIS will not
provide Your local loop nor is the charge therefor included herein. You
shall also be responsible for all connection and local access charges
incurred by SAVVIS and which apply to the Connection and You will be billed
by SAVVIS for such amounts. You will receive from SAVVIS the requirements
necessary to provide You with the Connection, which shall include, but not
be limited to, router configuration information, local loop information and
the demarcation point (the "Requirements") and the date on which the
Requirements must be fulfilled. If SAVVIS has not arranged for the local
loop, the demarcation point is considered to be the port on SAVVIS' switch.
If SAVVIS has arranged for the local loop, the WAN port on Your router is
the demarcation point. You acknowledge that You have received a Product
Specification Sheet relating to the Connection.
2. The Connection will be activated on or before March 25, 1998 (the
"Activation Date") and shall be for a period ending on the last day of the
month which is 36 months subsequent to the Activation Date at which time
this Agreement shall automatically renew for successive 36 month terms
unless terminated by either party at least 30 days prior to the then
current date for termination. SAVVIS reserves the right to change its
rates for any renewal term by notifying You at least 60 days in advance of
the effective date of such rate change. You acknowledge that circumstances
beyond the control of SAVVIS may cause a delay in turning up the Connection
in which case billing shall commence on the date the Connection is
activated; provided, however, in the event the delay in activating the
Connection is the result of Your failure to comply with or provide any of
the Requirements billing for the Connection shall commence on the
Activation Date.
3. This Agreement does not include equipment.
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4. You will be invoiced monthly in advance for all amounts due and owing to
SAVVIS. All payments are due within 30 days after the date of such
invoice. You will be deemed to be in default hereunder if payment is not
received within 30 days after the date of such invoice and in addition to
its other remedies, SAVVIS shall charge You an interest rate equal to the
lesser of 1-1/2% per month or the maximum amount permitted by the law of
Your state.
5. SAVVIS offers You access to the Internet. You hereby acknowledge that the
Internet is not owned, operated, managed by or in any way affiliated with
SAVVIS or any of its affiliates, and that it is a separate network of
computers independent of SAVVIS. Your use of the Internet is solely at
Your own risk and is subject to all applicable local, state, national and
international laws and regulations. Access to the Internet is dependent on
numerous factors, technologies and systems, many of which are beyond
SAVVIS' authority and control.
6. SAVVIS' network may only be used for lawful purposes. The transmission of
any material in violation of any United States or state regulations is
prohibited. This includes, but is not limited to, copyrighted material,
material legally judged to be threatening or obscene, material protected by
trade secret or material that is otherwise deemed to be proprietary or
judged by SAVVIS to be inappropriate or improper as determined by SAVVIS in
its reasonable judgment subject to industry standards which items shall be
deemed to include, but not be limited to, bulk e-mail messages. In the
event that You engage in activities that SAVVIS judges to be inappropriate
or improper, You shall have five (5) business days after the receipt of
notice from SAVVIS in which to cause such activities, the failure to do so
constituting a default hereunder.
7. Access to other networks connected to SAVVIS' network must comply with the
rules appropriate for that other network. SAVVIS exercises no control
whatsoever over the content of the information passing through its network.
8. SAVVIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS
INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES
OR SERVICE INTERRUPTION HOWEVER CAUSED. USE OF ANY INFORMATION OBTAINED BY
SAVVIS' NETWORK IS AT YOUR OWN RISK. SAVVIS SPECIFICALLY DISCLAIMS ANY
RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH
ITS SERVICES.
9. Routine maintenance and periodic system repairs, upgrades and
reconfigurations may result in temporary impairment or interruption in
service. As a result, SAVVIS does not guarantee continuous or
uninterrupted service and reserves the right from time to time to
temporarily reduce or suspend service without notice. If you notify SAVVIS
immediately in the event of the failure of Your Connection and SAVVIS
determines in its reasonable commercial judgment that the Connection is
unavailable to You. SAVVIS will, upon Your request credit Your account in
the following manner: (i) if the Connection is
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unavailable for one (1) or more consecutive hours during any calendar
month, SAVVIS will credit Your account for such month in an amount equal to
1/30th of the amount due for such month and (ii) if the Connection is
unavailable for an aggregate of four (4) or more hours in any calendar
month, SAVVIS will credit Your account in an amount equal 7/30ths of the
amount due for such month. Schedule or routine maintenance shall not be
deemed to be the unavailability of Your Connection. The Connection shall
not be deemed to have failed and no failure shall be deemed to have
occurred if the interruption in services is due to force majeure or to
circumstances beyond the control of SAVVIS such as the failure being caused
by the local loop provider. The provisions set forth in this Paragraph 9
shall be Your sole and exclusive remedy in the event of the unavailability
of Your Connection.
SAVVIS reserves the right to, from time to time, monitor Your activity.
Upon the occurrence of a default by You of any provision hereunder, SAVVIS
reserves the right, in addition to any other remedies which may be
available to it, to terminate this Agreement and the services provided to
You hereunder. In addition, upon the occurrence of any default hereunder,
75% of the cumulative total of the balance of all monthly payments
remaining on this Agreement shall become due and payable as of that date as
liquidated damages and not as a penalty. You acknowledge that the amounts
payable pursuant to the preceding sentence are equitable compensation to
SAVVIS, and are intended to reasonably compensate SAVVIS for the losses
which are occasioned by Your failure to honor Your obligations hereunder
and that the exact amount of damages is difficult or impractical to
establish.
10. Notwithstanding the provisions of Paragraph 9 hereof, at any time during
the term hereof, if You are not otherwise in default under any of the terms
and provisions of the Agreement, You may terminate this Agreement by giving
SAVVIS thirty (30) days' written notice. Upon Your early termination of
this Agreement, You shall pay to SAVVIS an amount equal to the difference
between the monthly fee payable hereunder (which You acknowledge is the
monthly fee payable for a three (3) year term) and the fee which would have
been payable (as set forth below) which difference shall be multiplied by
the number of months this Agreement was in force and effect. Such amount
shall be payable by You to SAVVIS concurrently with the delivery of Your
notice of termination.
Month of Termination Fee Payable Difference
-------------------- ----------- ----------
1-12 (deemed to be monthly pricing) $12,000 $2,800
13-24 (deemed to be 1 year pricing) $11,400 $1,800
25-36 (deemed to be 2 year pricing) $10,800 $1,600
By way of example, if You terminate this Agreement in month 16, You will be
deemed to have entered into a 1 year Agreement and in order to terminate
this Agreement You would pay to SAVVIS the sum of $28,800 which is 16
months times $1,800. If You terminate this Agreement in month 29, You
would be deemed to have entered into a 2
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year Agreement and in order to terminate this Agreement You would pay to
SAVVIS the sum of $46,400 which is 29 months times $1,600. This Fee shall
not exceed 75% of the remaining total outstanding balance.
The provisions of this Section shall not be available to You if You are
otherwise in default of any other term or provision of this Agreement.
11. You shall indemnify SAVVIS, its affiliates, officers, directors, licensees
and licensers from any and all claims and expenses, including, without
limitation, reasonable attorney's fees arising from Your breach of any
provision of this Agreement.
12. This Agreement is deemed to be entered into in the State of Missouri and
shall not become a binding obligation of SAVVIS until it has been executed
by an officer of SAVVIS. The parties agree that any dispute arising under
this Agreement shall be arbitrated by the American Arbitration Association
and that such dispute shall be governed by and construed in accordance with
the laws of the State of Missouri.
13. SAVVIS may assign this Agreement without Your prior consent and all of
SAVVIS' rights, title and interest herein shall inure to the benefit of
such assignee, its successors and assigns. This Agreement shall not be
assignable by You except with the written consent of SAVVIS. Subject to
the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
14. Each party may disclose the existence of this Agreement without the consent
of the other however, neither party may disclose any of the terms and
conditions of this Agreement without the prior written consent of the
other.
15. This Agreement may be modified only by a written instrument signed by the
party against which the modification is being enforced.
16. Any notice required to be given hereunder shall be in writing and shall be
deemed to have been delivered when deposited in the United States mail,
registered or certified mail, return receipt requested with adequate
postage affixed and addressed to the persons set forth in the signature
block hereto or to such other address as either party may provide to the
other in accordance with the provisions hereof. A copy of any notice to
SAVVIS shall be sent to Vice President - General Counsel at the address set
forth below.
17. This Agreement contains the entire agreement of the parties hereto with
respect to the matters covered hereby and supersedes any other prior or
simultaneous agreement related to such matters. Concurrently with the
activation of the Connection the Basic Internet Services Agreement dated
December 10, 1997 between the parties and the Connection being provided
thereunder shall terminate and all of the rights, duties and obligations of
the parties, with the exception of Your obligations to make payments
thereunder, shall terminate.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
SAVVIS COMMUNICATIONS DATA RETURN CORPORATION
ENTERPRISES, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Sunny X. Xxxxxxxxxx
--------------------------------- ----------------------------------
Printed Name: Xxxxxx X. Xxxxxx, Xx. Printed Name: Sunny X. Xxxxxxxxxx
----------------------- ------------------------
Title: EVP, CEO Title: CEO
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Address: 7777 Bonhomme, Suite 1501 Address: 000 Xxxxxxx Xx.
Xx. Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Phone: Phone: (000) 000-0000
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