EXHIBIT 10.30
[LOGO OF INTIRA]
Contract No.__________________
NETSOURCING SERVICES AGREEMENT
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THIS NETSOURCING SERVICES AGREEMENT ("Agreement") is entered into as of
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March 3, 2000 (the "Effective Date") by and between digital broadcast network
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corporation, d/b/a INTIRA CORPORATION, a Missouri corporation ("Intira"), and
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PARTMINER, INC., a New York corporation ("Customer").
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BACKGROUND
Customer wishes Intira to provide certain hosting and data management, Internet
access, and security services in connection with certain applications of
Customer to be made available on Intira's private network and/or the Internet,
and Intira is willing provide such services, subject to the terms and conditions
of this Agreement. Intira and Customer, therefore, agree as follows:
SECTION 1 - DEFINITIONS
The following defined terms, and other capitalized terms defined herein and as
described in the exhibits attached to this Agreement, will govern the
interpretation of this Agreement.
"Customer's Application" means the content, coding, text, applications, and
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software that are hosted on, or are provided to Intira for which Intira will
provide the Netsourcing Services and which will be stored on, the Server
(defined in (S)2.1 below) including, without limitation, Customer's "Free Trade
Zone" website.
"Documentation" means all written, video or audio materials, including
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training materials, relating to the Netsourcing Services provided by Intira to
Customer for use in connection with the Netsourcing Services under this
Agreement.
"Netsourcing Services" shall have the meaning set forth in Section 2.1 of
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this Agreement.
"Netsourcing Services Term" means (1) the Thirty-Six (36) month period
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beginning on the date the Netsourcing Services are successfully installed,
tested, and made available to Customer, and (2) any extension or renewal of such
period, pursuant to the terms of this Agreement.
SECTION 2 - NETSOURCING SERVICES
2.1 During the Netsourcing Services Term, Intira will provide the people,
products, processes, equipment, facilities and services necessary to host,
operate, maintain, and manage, Customer's Application, as well as to provide
security and connectivity therefor to and on behalf of Customer (collectively,
the "Netsourcing Services"):
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(a) Data Management Services. During the Netsourcing Services Term,
Intira will provide, as part of the Netsourcing Services, the hosting and data
management services described in the Statement of Work ("SoW"), which shall be
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completed and mutually agreed upon by the parties following execution of this
Agreement, and attached hereto and incorporated herein as Exhibit "A", including
providing a server or servers (collectively, the "Server") and all other
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computer hardware and operating system software necessary to operate and support
the Customer's Application; a more detailed description of the Server and such
other hardware and software shall be set forth in the SoW. Except as otherwise
provided in this Agreement and except during periods of scheduled maintenance
downtime, the parties acknowledge that Intira scheduled maintenance currently is
scheduled Tuesdays and Thursdays from 2:30 a.m. to 6:30 a.m., local time; Intira
will provide Customer with reasonable notice of any changes in such scheduled
maintenance policy. The parties agree to work together to minimize any adverse
impact scheduled maintenance may have on the operation of Customer's
Application. In the event that, after such efforts, the scheduled maintenance
has a material adverse impact on the operation of Customer's Application such
that it is no longer commercially practicable for Customer to continue operating
Customer's Application, Customer may terminate this Agreement as if Intira had
become in material breach of this Agreement under Section 5.2(b); provided,
however, Customer must first provide Intira with twenty-one (21) days prior
written notice of such termination and an opportunity to cure before terminating
this Agreement pursuant to this provision. Intira will use commercially
reasonable efforts to ensure that the Server and equipment is operational (as
such term is more fully described and defined in the SoW) on a twenty-four-hour-
a-day, seven-days-a-week basis. Intira will provide all necessary software
(excluding Customer provided software), hardware, network access,
infrastructure, people and management expertise, pursuant to the terms of the
SoW. Intira shall also provide storage services in the manner described in the
SoW.
(b) Security Services. As part of the Netsourcing Services, Intira shall
take commercially reasonable actions to provide such products, processes,
services, people, equipment, and devices as are necessary to secure the Server
and Customer's Application from unauthorized access, to the extent and pursuant
to the design and performance standards as shall be set forth in the SoW (the
"Security Services"). The parties acknowledge that the nature and scope of the
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Security Services shall not exceed those set forth in the SoW, unless otherwise
agreed to in a writing signed by all the parties hereto. As part of the
Security Services, Intira will provide certain monthly reports, including
monthly reports on usage and attempted and actual security intrusions and policy
violations. Intira will immediately notify Customer of all actual security
intrusions and policy violations as well as any attempted such intrusions or
violations (but only to the extent such attempts, in Intira's sole
determination, constitute "high priority" attempts or concerted, continual, and
intentional attempts) and will take such actions as are necessary to remedy such
policy violations or such security intrusions and to prevent any additional
security intrusions and policy violations. Additional reporting is available
upon agreement of the parties and for an additional fee. Further, in connection
with the Security Services, Intira will provide hardware and software, pre-
configured to the Customer's network and security needs, as shall be described
in the SoW. Intira will maintain ownership of all such hardware and software,
other than such hardware and/or software, if any, provided by Customer.
(c) Internet Access Services. Intira shall provide, as part of the
Netsourcing Services, the Internet access services identified in the SoW
("Internet Access Services"). Customer may request additional Internet Access
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Services on Intira's service order forms in effect from time to time (any such
order is a "Service Order"). Each Service Order shall reference this Agreement
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and shall become a part of and subject to the terms of this Agreement when
executed by a duly authorized Intira representative. In the event of a conflict
between any Service Order and this Agreement, the terms of this Agreement shall
control.
2.2 Intira shall not be, and Customer shall be, responsible for Customer's
Application and the Server content management, including all file uploads,
downloads, and transfers. If Customer authorizes Intira in writing, and Intira
agrees in writing, to provide Server content management services during the
Netsourcing Services Term, then, absent a billing arrangement otherwise, Intira
will perform such management at Intira's then current hourly rates for such
management services, which will be billed to Customer in addition to all other
charges for the Netsourcing Services being provided hereunder. Customer shall be
responsible for all end-user support, order entry, help desk, sales, marketing,
pricing and service plans, xxxxxxxx and collections (including without
limitation, credit card fraud and any other type of credit fraud) with respect
to the users and the sale of Customer's products and services and shall perform
those duties and obligations described in this Agreement. Customer shall have
sole responsibility for installation, testing, operation and maintenance of the
interconnection equipment and all computer software programs provided by
Customer or any user, other than the equipment specifically provided by Intira
under this Agreement. Unless otherwise provided in the SoW, Customer is
responsible for providing its own security measures prior to interconnection
with Intira's network and/or to the point at which Intira shall provide Security
Services under this Agreement. Customer is responsible for: credit card
verification, user pre-screening, identification, login access and security,
address verification and identification, and merchant bankcard transaction
reconciliation. Both Intira and Customer shall fully comply with all laws and
regulations and Intira's current policies and guidelines regarding Internet and
network usage, which can be found on Intira's website. In the event Intira
changes such policies or guidelines, Intira shall provide Customer reasonable
notice of such changes.
2.3 Intira shall deliver and perform the Netsourcing Services described in
this Agreement and the Service Level Agreement ("SLA") negotiated by the parties
and attached hereto as Exhibit "B" and all exhibits and attachments. Intira
shall timely deliver the Netsourcing Services and guarantees the availability
and quality of such Netsourcing Services during the Netsourcing Services Term,
to the extent set forth in the SLA. The SLA may only be amended in a writing
signed by both parties. Intira's obligations with respect to the SLA shall
commence after the Netsourcing Services are successfully installed, implemented,
and made available to Customer by Intira and tested and accepted by Customer;
provided, however, such SLA obligations shall not commence until the
"Stabilization Period" (as such term is defined in the SoW) has expired, which
shall be calculated as a period of sixty (60) days from the date of this
Agreement During the Stabilization Period, the Netsourcing Services shall be
tested and adjusted post-installation and post-implementation. Notwithstanding
anything herein to the contrary, the parties acknowledge that the On-Time
Installation Guaranty, as set forth in the SLA, shall become effective on the
date on which this Agreement is executed by the parties, regardless of whether
the Netsourcing Services Term has begun as of that date, and shall not be
subject to the Stabilization Period described herein.
SECTION 3 - OWNERSHIP
3.1 Intira Technology. Notwithstanding any other provision of this Agreement
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to the contrary, and except to the extent otherwise set forth in this Section 3,
Intira shall retain all right and title to and in any software (excluding
Customer provided software, Customer's Application, and Customer Technology
(defined below)), methodology, physical security system, access control system,
databases, computer programs, hardware, audio/visual equipment, tools, general
utility programs, libraries, discoveries, inventions, techniques, writings,
know-how, designs, or other information either owned by Intira prior to the date
hereof, acquired during the term of this Agreement, developed during the term of
this Agreement or specifically created for the purpose of performing the
Netsourcing Services, but excluding the Customer's Application (collectively,
the "Intira Technology"). Any Intira Technology developed during the course of
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this Agreement in connection with performing the Netsourcing Services shall not
be work made for hire. However, any Intira Technology developed exclusively for
Customer and at Customer's request during the course of this Agreement for a
purpose other than performing the Netsourcing Services shall be work made for
hire unless otherwise mutually agreed.
3.2 Customer Technology. Notwithstanding any other provision of this
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Agreement to the contrary, Customer shall retain all right, title and interest
in and to the Customer's Application and in any Customer provided software
(excluding Intira provided software and the Intira Technology), methodology,
physical security system, access control system, databases, computer programs,
hardware, audio/visual equipment, tools, general utility programs, libraries,
discoveries, inventions, techniques, writings, know-how, designs, or other
information either licensed or owned by Customer prior to the date hereof,
acquired by Customer during the term of this Agreement, or developed by a party
other than Intira or by a party other than a third party hired or engaged by
Intira during the term of this Agreement for a purpose other than performing the
Netsourcing Services (collectively, the "Customer Technology"). Any Customer
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Technology developed by Intira or any third party hired by or engaged by Intira
during the course of this Agreement exclusively for Customer and at Customer's
request and for a purpose other than performing the Netsourcing Services shall
be work made for hire unless otherwise mutually agreed.
SECTION 4 - PAYMENT
4.1 Fees. Subject to the terms of this Agreement, Customer agrees to pay
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Intira all Installation Fees and Monthly Service Fees as set forth on Exhibit
"C", Pricing. Unless otherwise agreed by the parties in writing, Monthly
Services Fees and any other recurring or non-recurring charges under this
Agreement shall become due and payable thirty (30) days from the date of invoice
from Intira. All Monthly Service Fees shall be billed in advance, unless all or
any portion of the Netsourcing Services requires measurement of Customer's usage
in order to determine the appropriate Monthly Service Fee. Intira shall submit
the first invoice to Customer for Monthly Service Fees beginning in the month
after the first month in which the Netsourcing Services have been made available
to Customer, and for each month thereafter during the Netsourcing Services Term.
4.2 Report Fee. Unless other billing arrangements are agreed upon in writing
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by the parties or except to the extent otherwise set forth in this Agreement or
the SoW, Customer will pay Intira an hourly rate of one hundred twenty five
dollars ($125.00) for the initial development and formatting of customized
reports, not otherwise described in the Statement of Work, requested by Customer
and agreed to by Intira. Intira shall make all such reports available to
Customer via a secure and protected report retrieval area on the Internet. Such
reports shall include reports on backbone usage and Internet drains. Reporting
with respect to site availability and latency shall be available upon reasonable
request by Customer.
4.3 Taxes. All sales, use, value-added, and other taxes (excluding taxes
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based on the income of Intira or any subsidiary or affiliate thereof), customs
and duties arising out of the Netsourcing Services provided under this Agreement
will be paid by Customer, or, if Intira is required to pay any of the same, will
be reimbursed to Intira by Customer.
4.4 Change Requests. Upon execution of this Agreement and any appropriate
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Exhibits, Service Orders, or SoWs, Intira shall begin the process of ordering,
installing, testing, and implementing the necessary infrastructure, equipment,
and processes so as to provide the Netsourcing Services. During such process,
any request by Customer to change Customer's order or the Netsourcing Services
in any way must be submitted to Intira in writing. Intira shall use
commercially reasonably efforts to accommodate any change requests submitted
during the Netsourcing Services Term within a reasonable time after submission
of such request; however, Intira cannot
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guarantee that every change order request can or will be made by Intira. In the
event Customer requests such a change prior to Intira's beginning installation
or implementation, and in the event Intira is able to make such requested change
without incurring any additional third-party charges, Intira may make the
changes so requested free of additional charge. Notwithstanding anything herein
to the contrary, in the event that, in Intira's sole judgment, Customer's change
request expands, in whole or in part, the Netsourcing Services beyond the scope
of the SoW, Intira shall not be obligated to implement such change request
unless and until the parties have agreed, in a writing signed by both parties,
to a revised price structure for the Netsourcing Services (as expanded by
Customer's change request). Such amended pricing structure shall become
incorporated into this Agreement upon execution.
4.5 Late Charges If any fees or expenses are not paid within forty (40) days
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after the date of Intira's first invoice for such fees or expenses, Intira may,
at its option, charge Customer a late fee at the rate of 1.0% per month (but in
no event more than the maximum rate allowed by applicable law) on such fees.
Customer will be responsible for all reasonable costs of collection incurred by
Intira, including without limitation, litigation costs, reasonable attorneys'
fees and court costs.
SECTION 5 - TERM, EXPIRATION, AND TERMINATION
5.1 Term and Expiration. This Agreement will take effect upon the Effective
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Date and will continue until the end of the Netsourcing Services Term, unless
otherwise terminated as provided herein. Intira shall provide Customer with 90
days written notice before the expiration of the Netsourcing Services Term.
Upon expiration of the Netsourcing Services Term, if Customer fails to provide
Intira with written notice of its intent to cancel this Agreement, and absent an
agreement by the parties to renew this Agreement, Intira may continue providing
the Netsourcing Services on a month-to-month basis, at the fees set forth on the
attached Exhibit "C", until such time as a renewal agreement can be reached by
the parties. During such automatic renewal period, either party may terminate
this Agreement upon thirty (30) days notice. Except as otherwise provided in
this Agreement, Intira may not terminate the Netsourcing Services or this
Agreement during the Netsourcing Services Term.
5.2 Termination. During the Netsourcing Services Term, this Agreement may only
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be terminated pursuant to this Section 5.2.
(a) Termination without Cause by Customer. Customer may terminate this
Agreement by providing Intira with sixty (60) days prior written notice. In the
event Customer terminates this Agreement under this paragraph, Customer shall be
liable for any outstanding balance due and owing at the time of termination, any
Monthly Service Fees earned by Intira through the date of termination, any
reasonable costs, without markup and including all discounts and rebates,
incurred by Intira as a result of Customer's termination, including but not
limited to telephone circuit termination charges, and a Cancellation Fee equal
in an amount as set forth below. In the event Customer terminates this
Agreement under this Section 5.2(a) during the first twelve (12) months of the
Netsourcing Services Term, the Cancellation Fee shall be an amount equal to
seventy-five percent (75%) of the minimum Monthly Service Fee hereunder
multiplied by the number of months remaining in the Netsourcing Services Term.
In the event Customer terminates this Agreement under this Section 5.2(a) during
the second twelve (12) months of the Netsourcing Services Term, the Cancellation
Fee shall be an amount equal to fifty percent (50%) of the minimum Monthly
Service Fee hereunder multiplied by the number of months remaining in the
Netsourcing Services Term. In the event Customer terminates this Agreement
under this Section 5.2(a) during the third twelve (12) months of the Netsourcing
Services Term, the Cancellation Fee shall be an amount equal to twenty-five
percent (25%) of the minimum Monthly Service Fee hereunder multiplied by the
number of months remaining in the Netsourcing Services Term.
(b) Termination with Cause By Customer. Customer may terminate this
Agreement if (a) Intira is in material breach of this Agreement, and such
material breach continues for a period of not less than twenty-one (21) days
after Customer provides written notice of such breach (Intira shall use
reasonable commercial efforts to cure such breach in less than twenty-one days),
or (b) a proceeding is commenced by or against Intira seeking liquidation,
reorganization, being declared insolvent, or other relief under any bankruptcy
or similar law, and such proceeding is not dismissed within thirty (30) days of
filing. In the event Customer terminates this Agreement pursuant to this
paragraph, Customer shall remain liable for any outstanding balance due and
owing as of the date of termination, and any Monthly Service Fees earned by
Intira through the date of termination.
(c) Termination with Cause by Intira. During the Netsourcing Services
Term, Intira may only terminate this Agreement in the event Customer is in
Default of this Agreement. For purposes of this Agreement, Customer shall be
considered to be in "Default" if (a) Customer fails to make any payment required
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hereunder, and such failure remains uncorrected for twenty (20) days after the
date upon which Intira provides written notice that such payment is overdue; (b)
Customer is in material breach of any of its other obligations under this
Agreement, and such breach continues for a period of thirty (30) days after
Intira provides written notice of such breach; (c) a proceeding is commenced by
or against Customer seeking liquidation, reorganization, being declared
insolvent, or other relief under any bankruptcy or similar law, and such
proceeding is not dismissed within thirty (30) days of filing; (d) Customer's
use of any products, equipment, hardware, software, or services supplied
hereunder is in material violation of Intira's Acceptable Use Policy, as such
policy is set forth in Intira's website, xxx.xxxxxx.xxx.; or (e) Customer is in
material default of any other Agreement with Intira. Intira will provide
Customer with no less than thirty (30) days written notice before any changes to
the Acceptable Use Policy become effective. In the event this Agreement is
terminated hereunder, Customer shall remain liable for any amounts for which
Customer would have been liable had Customer terminated this Agreement pursuant
to Section 5.2(a).
5.3 Upon termination of the Netsourcing Services and this Agreement, Intira
shall provide Customer reasonable assistance in removing all data and other
materials stored on the Server and Customer shall have sixty (60) days to remove
the data stored on the Server by Intira subject to paying all amounts owed to
Intira, including any costs incurred by Intira in helping Customer remove the
stored data. Intira shall not terminate the Netsourcing Services before the
expiration of such sixty-day period unless Customer has secured alternate
arrangements to have such Netsourcing Services or their substantial equivalent
provided elsewhere; provided, however, Customer shall remain liable for any
Monthly Service Fees arising out of the Netsourcing Services provided during
such sixty-day period.
5.4 Intira, upon termination of this Agreement shall provide reasonable
assistance to Customer in obtaining possession of, removing and moving all
Customer property including, without limitation, the Customer's Application to
Customer's location, or another location, of Customer's choice. In the event
Customer terminates this Agreement under Section 5.2(b), Intira shall bear the
cost of such services; however, in the event the Agreement becomes terminated
for any other reason, Customer shall bear the cost of such services.
SECTION 6 - REPRESENTATIONS AND WARRANTIES
6.1 Customer Representations and Warranties. Customer represents and warrants
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that (i) Customer has the right and/or title to use the Customer's Application
or that Customer's Application either contains material that is in the public
domain or for which Customer has sufficient rights to use in the manner
contemplated by this Agreement; (ii) to the best of its knowledge and belief,
Customer's Application, and Intira's provision of the Netsourcing Services using
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Customer's Application as contemplated hereunder, will not infringe upon or
violate any patent, copyright, trade secret, trademark or other intellectual
property right of any third party, or any law applicable to the provision of the
Netsourcing Services; (iii) to the best of its knowledge and belief, Customer's
Application complies with all law, rules, legislation, and regulations of
applicable jurisdictions; (iv) to the best of its knowledge and belief,
Customer's Application is not for any illegal, obscene, offensive or immoral
purpose; (v)to the best of its knowledge and belief, Customer is in compliance
with and will abide by all federal, state and local laws, rules, and ordinances,
of applicable jurisdictions, specifically including, but not limited to, the
Communications Decency Act of 1996, as amended, and Customer will not transmit
communications described in 47 U.S.C. Section 223(b) and will restrict such
access to Customer's Application accordingly; and (vi) to the best of its
knowledge and belief, Customer's Application shall be free from viruses, worms,
trojan horses and other malicious code and shall be Y2K compliant.
6.2 Intira Representations and Warranties. Intira represents and warrants that
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(i) Intira has the right and/or title to use the Intira Technology in the manner
contemplated by this Agreement; (ii) to the best of its knowledge and belief,
Intira Technology does not infringe upon or violate any patent, copyright, trade
secret, trademark, or other intellectual property right of any third party or
constitute a defamation, invasion of privacy, or violate any right of publicity
or other third-party right; (iii) to the best of its knowledge and belief,
Intira's provision of Netsourcing Services as contemplated hereunder will not
infringe upon or violate any patent, copyright, trade secret, trademark or other
intellectual property right of any third party, or any law applicable to the
provision of the Netsourcing Services; (iv) to the best of its knowledge and
belief, Intira's Technology complies with all law, rules, and legislation of
applicable jurisdictions; (v) to the best of its knowledge and belief, Intira's
performance of the Netsourcing Services is not for any illegal, obscene,
offensive or immoral purpose; (vi) to the best of its knowledge and belief,
Intira is in compliance with and will abide by all federal, state and local
laws, rules, regulations and ordinances; (vii) to the best of its knowledge and
belief, Intira Technology shall be free from viruses, worms, trojan horses and
other malicious code and shall be Y2K compliant.
SECTION 7 - WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 Warranties and Limitation of Liability.
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(a) INTIRA SHALL USE REASONABLE BEST EFFORTS TO PROVIDE THE NETSOURCING
SERVICES ERROR-FREE AND SHALL USE REASONABLE BEST EFFORTS TO PROVIDE THE
NETSOURCING SERVICES ON A TWENTY-FOUR (24) HOUR, SEVEN (7) DAY PER WEEK BASIS.
IN CONNECTION THEREWITH, INTIRA SHALL USE REASONABLE BEST EFFORTS TO PROVIDE THE
NETWORK SERVICES, AS SET FORTH IN THE SOW, ERROR-FREE AND SECURE, AND, FURTHER,
SHALL USE REASONABLE BEST EFFORTS TO ENSURE THAT THE NETWORK SERVICES,
INCLUDING, WITHOUT LIMITATION, COMMUNICATIONS SENT BY MEANS OF THE FIREWALL,
WILL BE PRIVATE (TO THE EXTENT SET FORTH IN THE SOW). INTIRA SHALL PERFORM THE
NETSOURCING SERVICES HEREUNDER IN A PROFESSIONAL AND WORKMANLIKE MANNER,
SUBSTANTIALLY IN COMPLIANCE WITH THE STATEMENT OF WORK (AS SAME MAY BE AMENDED
IN WRITING BY THE PARTIES FROM TIME TO TIME). UNLESS OTHERWISE SET FORTH IN THIS
AGREEMENT, INTIRA MAKES NO FURTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WRITTEN OR ORAL. INTIRA DISCLAIMS ALL AND CUSTOMER RECEIVES NO FURTHER
WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY WARRANTY THAT THE NETSOURCING SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. ALL WARRANTIES WITH RESPECT TO THE NETSOURCING
SERVICES ARE STRICTLY LIMITED TO THOSE SET FORTH IN THIS AGREEMENT.
(b) (1) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY CONSEQUENTIAL, DIRECT OR INDIRECT, PUNITIVE, INCIDENTAL DAMAGES OR ANY LOSS
OF PROFIT, REVENUE, OR DAMAGES FOR BODILY INJURY OR DEATH INCURRED OR SUFFERED
AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NONPERFORMANCE, TERMINATION, OR
OTHER ACTION OR INACTION UNDER THIS AGREEMENT. THE FOREGOING LIMITATION ON
LIABILITY, HOWEVER, SHALL NOT RELIEVE THE PARTIES FROM LIABILITY FOR DIRECT
DAMAGES ARISING SOLELY OUT OF SUCH PARTIES' GROSS NEGLIGENCE OR WANTON OR
WILLFUL MISCONDUCT IN PERFORMANCE OF THE NETSOURCING SERVICES.
(2) INTIRA'S TOTAL LIABILITY FOR DAMAGES IN CONNECTION WITH THIS
AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE GREATER
OF (A) THE TOTAL AMOUNT RECEIVED BY INTIRA UNDER THIS AGREEMENT FOR THE SIX-
MONTH PERIOD IMMEDIATELY RECEEDING THE DATE UPON WHICH SUCH LIABILITY ARISES, OR
(B) SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000).
(c) NOTHING IN THIS SECTION 7.1 SHALL SERVE TO RELIEVE INTIRA FROM ANY
LIABILITY ARISING SOLELY OUT OF THE SERVICE LEVEL AGREEMENT ("SLA"), BETWEEN
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THE PARTIES, ATTACHED HERETO AS EXHIBIT "B". CUSTOMER'S REMEDY FOR INTIRA'S
FAILURE TO SATISFY ITS SLA AS SET FORTH IN THE SLA, AND ANY OTHER RIGHTS OR
REMEDIES THEREFOR, SHALL BE SUBJECT TO THE LIMITATIONS ON LIABILITY IMPOSED
HEREUNDER. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INTIRA'S FAILURE TO
MEET ANY OF THE COMMITMENTS SET FORTH IN THE SLA SHALL NOT CONSTITUTE A MATERIAL
BREACH OF THIS AGREEMENT (FOR PURPOSES OF SECTION 5.2(B) UNLESS SUCH FAILURE
PERSISTS ON A ROUTINE AND CONSISTENT BASIS. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, INTIRA'S FAILURE TO MEET THE ON-TIME INSTALLATION GUARANTY SHALL NOT
BE CONSIDERED A MATERIAL BREACH OF THIS AGREEMENT FOR PURPOSES OF SECTION
5.2(B).
(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SECURITY SERVICES INTIRA
SHALL PERFORM UNDER THE SOW CONSTITUTE ONLY ONE COMPONENT OF CUSTOMER'S OVERALL
SECURITY PROGRAM AND ARE NOT A COMPREHENSIVE SECURITY SOLUTION.
7.2 Indemnification by Customer. Customer will defend, indemnify, and hold
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Intira harmless from and against all claims, liabilities, costs (including
reasonable attorneys' fees) and/or damages to or suffered or incurred by Intira
arising out of (a) any use by Intira that is consistent with this Agreement of
any data or files provided by Customer to Intira under this Agreement, (b) any
material breach by Customer of this Agreement, including without limitation any
failure by Customer to observe or satisfy any material terms or conditions of
this Agreement, or (c) any material violation of any applicable federal, state
or local laws with regard to the transmission and use of information and
content, including laws related to privacy, publicity, or the Communications
Decency Act of 1996, arising out of the Customer's Application. Further,
Customer shall indemnify Intira for any loss, damage, costs, liability, and
expenses, including reasonable attorneys' fees, sustained in connection with,
and Customer shall defend any suit and dispose of any claims or other
proceedings based on, an allegation that any product or service supplied by
Customer hereunder violates or infringes on any patent, copyright, trademark,
service xxxx, or other intellectual property right(s), whether such right(s) be
registered or unregistered.
7.3 Indemnification by Intira. Intira will defend, indemnify and hold
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Customer harmless from and against all claims, liabilities, costs (including
reasonable attorneys' fees) and/or damages to or suffered
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or incurred by Customer arising out of any material breach by Intira of this
Agreement or arising out of any gross negligence or wanton and willful
misconduct of Intira in connection with Intira's provision of Netsourcing
Services hereunder. Further, Intira shall indemnify Customer for any loss,
damage, costs, liability, and expenses, including reasonable attorneys' fees,
sustained in connection with, and Intira shall defend any suit and dispose of
any claims or other proceedings based on, any allegation that any product or
service supplied solely by Intira hereunder violates or infringes on any patent,
copyright, trademark, service xxxx, or other intellectual property right(s),
whether such right(s) be registered or unregistered. Intira's liability under
this Section shall be subject to and limited by the limitations on Intira's
liability imposed under Section 7.1 of this Agreement.
7.4 Force Majeure. Intira shall not be liable for any delay or failure to
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carry out the Netsourcing Services provided hereunder if such delay or failure
is due to any cause beyond the control of Intira, including without limitation,
restrictions of law, regulations, order or other governmental directives, labor
disputes, acts of God, explosions, fiber optic cable cuts, extreme storm, acts
of third party vendors or suppliers (to the extent not hired by or engaged by
Intira), or other similar events. If such Force Majeure event continues for
more than ten (10) consecutive days, Customer may terminate this Agreement for
Cause upon notice to Intira.
SECTION 8 - GENERAL
8.1 Governing Law Jurisdiction and Venue. This Agreement shall be governed
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in all respects by, and shall be construed and enforced in accordance with, the
laws of the State of New York, without regard to any rules governing conflicts
of laws. Any and all legal proceedings arising out of or relating to the subject
matter of this Agreement shall be brought and maintained only in the courts of
the State of New York or in the United States District Court for the Southern
District of New York, which courts shall have exclusive jurisdiction of such
proceedings, and the parties hereto hereby submit to the personal jurisdiction
of such courts with respect to all such proceedings.
8.2 Miscellaneous Provisions. This Agreement and each term hereof may only be
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amended in a writing signed by all the parties. No failure or delay on the part
of either party in exercising any right hereunder and no course of dealing
between the parties shall operate as a waiver of any provision hereof. In
conjunction with this Agreement, each party shall at all times comply with all
applicable federal, state, and local statutes, laws and orders of any commission
or other government body. This Agreement shall be governed by the laws of the
State of New York. This Agreement and its exhibits, attachments, and documents
incorporated herein comprise the complete and exclusive statement of the
agreement of the parties concerning the subject matter hereof, and supersede all
previous statements, representations, and agreements concerning the subject
matter hereof. If any part of this Agreement shall be invalid or unenforceable
under applicable law, said part shall be ineffective only to the extent of such
invalidity, without in any way affecting the remaining parts of said provision
or the remaining provisions of this Agreement, and the Customer and Intira agree
to negotiate with respect to any such invalid or unenforceable part to the
extent necessary to render such part valid and enforceable. Sections 7 and 8
shall survive the termination or expiration of this Agreement.
8.3 Notices. All notices given under this Agreement must be in writing and
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will be deemed effective when delivered in person or by a reputable next-day
courier, by facsimile or three (3) business days after being mailed via
certified mail, return receipt requested, to the appropriate address shown
below.
8.4 Successors and Assigns. This Agreement may not be assigned by either
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party without the prior consent of the non-assigning party, such consent not to
be unreasonably withheld. Notwithstanding the foregoing, either party shall
have the right to assign its rights and obligations under this Agreement without
obtaining the consent of the nonassigning party to an assignee who acquires all
or substantially all of the assets or capital stock of such party; provided,
however, Customer's right to so assign shall only apply if (a) Customer is not
in arrears with respect to any payment hereunder, and (b) such assignee of
Customer is not a competitor of or in a business substantially similar to the
business of Intira. This Agreement and all Exhibits thereto shall be binding
upon and shall insure to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns.
IN WITNESS WHEREOF, the Parties set their hands to this Netsourcing
Services Agreement the date and year first above written.
digital broadcast network corporation
d/b/a INTIRA CORPORATION: PARTMINER, INC.:
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
-------------------------------- -------------------------------
Title: President/CEO Title: Vice President
------------------------------- ------------------------------
000 Xxxxxxx Xxxxxxx 00/xx/ Xxxxx
Xxxxxxxxxxxx, XX 00000 000 Xxxx Xxxxxx
XXXX: Xxxxxxxxxx Xxx Xxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Intira Proprietary and Confidential
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Exhibit B
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Intira Corporation
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SERVICE LEVEL AGREEMENT
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This is Exhibit B to the Netsourcing Services Agreement between the parties
and is incorporated by reference to such document.
Intira is committed to providing a scalable and highly available
netsourcing solution for PartMiner's mission-critical e-business application,
which is why Intira offers the following quality of service guarantees:
SITE AVAILABILITY GUARANTEE:
Intira guarantees that the PartMiner "Free Trade Zone" website will
function (excluding disruptions beyond Intira's control attributable to
PartMiner's Content), and will be available and accessible to the point
where it leaves Intira's network for 99.5% of the time within a given
calendar month and, as within a given calendar month. As set forth below,
Intira will credit PartMiner's account if Intira fails to meet this Site
Availability Guarantee. Each calendar month, Intira will calculate the
exact time that the PartMiner "Free Trade Zone" website is unavailable to
PartMiner's website visitors ("End Users"). The site shall be considered
"unavailable" for that period of time consisting of the number of minutes
that the site was not available to PartMiner's End Users, but will not
include unavailability resulting from (a) scheduled Intira network or
server maintenance (described in Section 2.1(a) of the Netsourcing Services
Agreement to which this Exhibit is attached and in which this Exhibit is
incorporated) (b) any PartMiner-owned or-ordered telephone company
circuits, (c) PartMiner's application(s), equipment, or facilities, (d)
acts or omissions of PartMiner or any authorized users, agents or
employees, (e) reasons of Force Majeure (as defined in the applicable
service agreement), (f) any network access or related problems beyond
Intira's reasonable control, or (g) any equipment owned or licensed by
PartMiner and collocated with Intira, the maintenance, monitoring, and
support for which Intira is not responsible, in whole or in part, including
but not limited to those certain DEC Alpha servers to be collocated in
Intira's New York Data Center facility under separate agreement. For each
cumulative fifteen (15) minute period in excess of such 99.5% average that
the PartMiner site is not available in a given calendar month during the
hours of 9:00 a.m. through 8:00 p.m. Eastern Standard Time (the "North
American Business Day"), PartMiner's account shall be credited for two days
(2/30/th/) of the Monthly Service Fee (as defined in Exhibit C to the
Netsourcing Services Agreement) for such month. For each cumulative
fifteen (15) minute period in excess of the 99.5% average that the
PartMiner site is not available in a given calendar month outside of the
hours of the North American Business Day, PartMiner's account shall be
credited for one day (1/30/th/) of the Monthly Service Fee for such month
(as defined in Exhibit C to the Netsourcing Services Agreement)
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NETWORK SERVICES
LATENCY GUARANTEE:
Intira guarantees to have an average round-trip transmission of 85
milliseconds or less between Intira-designated transit backbone routers
("Hub Routers") in the contiguous U.S. Latency shall be measured by Intira
by averaging five (5) minute sample measurements taken during a 12 hour
period beginning at 6:00 a.m. - 6:00 p.m. and 6:00 p.m. - 6:00 a.m. between
Hub Routers. Each month's network performance statistics relating to the
Latency Guarantee shall be posted on Intira's webpage or provided to
PartMiner upon request.
If Intira fails to meet this Latency Guarantee in two consecutive calendar
months, PartMiner's account shall be credited for the part of the Monthly
Services Fee applicable to PartMiner's network access services for that
month and any month thereafter in which the Latency Guarantee is not met.
Intira shall credit PartMiner for such portion of the Monthly Service Fee
(as defined in Exhibit C to the Netsourcing Services Agreement) for the
network access services provided by Intira for the service with respect to
which this Latency Guarantee has not been met. No credits will be made if
failure to meet the Latency Guarantee is attributable to (a) scheduled
Intira Network maintenance, (b) any PartMiner-owned or -ordered telephone
company circuits, (c) PartMiner's application(s), equipment, or facilities,
(d) acts or omissions of PartMiner, or any authorized PartMiner user, agent
or employee, (e) reasons of Force Majeure (as defined in the Netsourcing
Services Agreement), or (g) any equipment owned or licensed by PartMiner
and collocated with Intira, the maintenance, monitoring, and support for
which Intira is not responsible, in whole or in part, including but not
limited to those certain DEC Alpha servers to be collocated in Intira's New
York Data Center facility under separate agreement.
PROVISIONING GUARANTEE:
BACKBONE
Intira guarantees to maintain backbone provisioning guidelines to ensure
that Intira properly plans for backbone growth by scaling the backbone
network inter-switched trunk facilities once a sustained utilization of 40%
for a continuous three (3) day period is reached. Backbone provisioning
shall be measured by taking each individual point-to-point trunk on
Intira's backbone and averaging five (5) minute sample measurements taken
during a calendar month from each such backbone point to point trunk.
Intira will aggregate and average all of the sample measurements to
determine an average sustained usage rate of Intira's backbone network.
When the average sustained usage rate exceeds 40% and confirmation that no
extraordinary traffic traversed the backbone network during the sample test
period, Intira shall order additional service to scale Intira's backbone
network to the next level. Currently, Intira's network consists of DS3 and
OC3 - level circuitry, and is fully scalable by Intira.
INTERNET DRAINS
Intira guarantees to properly maintain peering points with Internet
providers (hereinafter "Internet drains"), and provisioning guidelines with
respect therewith, to ensure that Intira plans for Internet drain growth by
scaling the Internet drain network at a 40% average sustained usage rate of all
available Intira Internet drains. Intira's Internet drain provisioning shall be
measured by taking each individual carrier's Internet drain port on Intira's
backbone and averaging five (5) minute sample measurements taken during a
calendar month from each such port. Intira will aggregate and average all of the
carriers' sample measurements to determine the
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average aggregate sustained usage rate of Intira's Internet drains. When this
average sustained usage rate exceeds 40% of all available Intira Internet
drains, Intira shall order additional service to scale Intira's network to the
next level.
RECOVERY SERVICES GUARANTEE:
Intira guarantees to begin the restoration of any file systems or data that
are deleted utilizing Intira back-up and recovery services within thirty
(30) minutes after a properly identified and confirmed restoration inquiry
is received from PartMiner or its duly-authorized representative. Intira
will credit PartMiner's account if Intira fails to meet this Recovery
Service Guarantee. Intira will calculate the time within a given calendar
month that Intira has failed to begin to restore the lost data within such
thirty (30) minute period, not including unavailability resulting from (a)
scheduled Intira Network or server maintenance, (b) any PartMiner-owned or
-ordered telephone company circuits, (c) PartMiner's application(s),
equipment, or facilities, (d) acts or omissions of PartMiner, or any (e)
data that has been deleted for 30 days or greater, or (f)authorized
PartMiner user, agent or employee, or (g) reasons of Force Majeure (as
defined in the applicable service agreement). For each thirty (30) minutes
in excess of the thirty (30) minute period that Intira failed to begin to
restore the data, in any calendar month, PartMiner's account shall be
credited for the pro-rated charges equal to one day (1/30/th/) of the
Intira monthly back-up fee (as defined in the applicable service
agreement).
GENERAL SERVICES
REPORTING GUARANTEE:
Intira guarantees to notify PartMiner within fifteen (15) minutes
after Intira's determination that PartMiner's Network Service is
unavailable. Intira's standard procedure is to ping PartMiner's router
or Intira-managed server every five (5) minutes and system response
verification test as appropriate and if PartMiner's router does not
respond after two consecutive five-minute ping cycles, Intira will
deem the service unavailable and will contact PartMiner's designated
point of contact by a method mutually agreed to by the parties. This
Reporting Guarantee is applicable only if PartMiner provides all
PartMiner information and contact forms to Intira reasonably requested
by Intira. PartMiner is solely responsible for providing Intira
accurate and current contact information for PartMiner's designated
points of contact. Intira will be relieved of its obligations under
this Reporting Guarantee if Intira's contact information for PartMiner
is out of date or inaccurate due to PartMiner's action or omission or
if Intira's failure is due to reasons of Force Majeure (as defined in
the Netsourcing Services Agreement); provided, however, the parties
acknowledge that PartMiner's notice under this Netsourcing Service
Level Agreement shall be sufficient to satisfy PartMiner's requirement
to provide up-to-date contact information. For each instance in a
given calendar month that Intira fails to meet this Reporting
Guarantee, PartMiner's account shall be credited the pro-rated charges
for two (2) days of the Intira monthly fee for the service with
respect to which this Guarantee has not been met; provided that
PartMiner may obtain no more than one (1) credit per day, irrespective
of how often in that day Intira failed to meet the Reporting
Guarantee.
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ON-TIME INSTALLATION GUARANTEE:
Intira guarantees to have installation of all infrastructure including,
without limitation, hardware, operating software, Intira installed
software, firewalls, applications, routers, and network circuits completed
on or before FEBRUARY 28, 2000 ("Installation Date"). This ON-TIME
INSTALLATION GUARANTEE is not available for PartMiner telephone company
circuits, or if installation delay is attributable to such circuits,
PartMiner equipment (PartMiner owned gear), PartMiner's facility, acts or
omissions of PartMiner, its employees or agents, or reasons of Force
Majeure (as defined in the applicable service agreement). If Intira
fails to meet this ON-TIME INSTALLATION GUARANTEE, PartMiner's account
shall be credited in the amount of $Ten Thousand Dollars ($10,000) per day
for each calendar day beginning the day after the Installation Date until
such time as Intira has completed its installation obligations under this
Agreement. To the extent possible, such amounts shall first be credited
against any amounts owed by PartMiner under this Netsourcing Services
Agreement. This On-Time Installation Guaranty shall become effective on
the date upon which the Netsourcing Services Agreement becomes executed by
all the parties, regardless of whether the Netsourcing Services Term has
commenced and notwithstanding any restriction imposed under the Netsourcing
Services Agreement or this Service Level Agreement with regard to the
"Stabilization Period". Notwithstanding anything to the contrary, Intira
shall not be considered in violation of this On-time Installation Guaranty
if Intira's failure to install the hardware, operating software, Intira
installed software, firewalls, applications, routers, and network circuits
on or before the Installation Date is the result of PartMiner's failure to
properly install or maintain any equipment collocated by PartMiner with
Intira, the maintenance, monitoring, and support for which Intira is not
responsible, in whole or in part, including without limitation the certain
DEC Alpha servers to be so collocated. Further, Intira shall not be
considered to have violated this On-time Installation Guaranty if Intira's
failure to meet the Installation Date is the result of changes to the
Netsourcing configuration instituted or requested by PartMiner.
MAXIMUM CREDIT AVAILABLE:
Except with respect to the On-Time Installation Guaranty, notwithstanding
anything to the contrary, the maximum amount of any credit in any calendar
month under this SLA and under any service agreement, shall not exceed the
monthly fee and/or installation charge which, absent the credit, would have
been charged for Intira service that month ("Maximum Intira Fees"). This
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SLA sets forth PartMiner's sole remedies for any claim relating to the
service or the Intira network, except as otherwise specifically agreed to
in writing by an authorized officer of Intira or as otherwise set forth in
the Netsourcing Services Agreement.
CREDIT CLAIM PROCEDURE:
Any disputed credits issued under this SLA must be submitted by PartMiner
to Intira within sixty (60) days of the end of the month in which the
disputed credits are attributable. The claim must include sufficient
detailed information describing Intira's failure to properly credit
PartMiner's account under this SLA. Intira will acknowledge all claims
within 10 business days of receipt of such claim by PartMiner and Intira
will notify PartMiner at such time whether such claim includes sufficient
detail or whether, in Intira's reasonable view, more detail is needed
before Intira can evaluate such claim. If Intira notifies PartMiner that
more detail is needed, PartMiner shall have thirty (30) days after such
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notice to provide such detail. PartMiner will be informed in writing
whether any adjustment to the credit will be given.
EFFECTIVE DATE:
This SLA is effective as of March 3, 2000, and shall only become applicable
to the Netsourcing Services upon completion of the Stabilization Period,
which shall be a period of sixty (60) days beginning on such effective
date.
Intira Proprietary and Confidential
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