EXHIBIT 10.46
AGENCY AGREEMENT
THIS AGENCY AGREEMENT (the "Agreement") is entered into as of the 25th day of
July, 1997, to be effective as of the Effective Date, hereinafter defined,
between Concentric Network Corporation, a Florida corporation with offices at
00000 X. Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("CNC") and Xxxxxxxx Communications
Group, a Delaware corporation with offices at Xxx Xxxxxxxx Xxxxxx 00xx Xxxxx,
Xxxxx, Xxxxxxxx 00000 ("WCG").
In consideration of the mutual promises contained herein, CNC and WCG
(collectively the "PARTIES") agree as follows:
1. Definitions. For the purpose of this Agreement, the following terms and all
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terms defined elsewhere in this Agreement shall have the meanings so defined. A
term defined in the singular shall include the plural and vice versa when the
context so indicates.
"Customer" shall mean a school, government entity, individual, organization,
business, or institution that has contracted through WCG with CNC to purchase
Services, as delivered from CNC or as part of a value-added package offered by
WCG.
"Dispute Resolution Procedures" shall mean the dispute resolution procedures set
forth in Section 22 of this Agreement.
"Effective Date" shall be the Closing Date described in that certain Common
Stock and Warrant Purchase Agreement between the Parties entered into
concurrently with the execution of this Agreement.
"Services" shall mean CNC's products and services provided to WCG for which
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orders from CNC's Customers may be procured by WCG as a sales agent for CNC
under this Agreement, which Services shall be described in Exhibit A, as amended
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from time to time. Services shall include all current or future CNC products and
services, including without limitation all network and server/host based
products and services and all international products and services, that CNC
commercializes and makes generally available, except those which CNC is
contractually or legally prohibited from making available to WCG or those which
are reasonably determined by CNC to be technically infeasible for CNC..
"Services" shall include but not be limited to CNC RemoteLink,ConcentricHost
Shared Web Services and ConcentricHost Dedicated Co-location. Subject to the
foregoing, updates to the current Exhibit A (includinginformation similar to
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that which is provided in the current Exhibit A, such as Service descriptions,
costs to Customers and WCG's commissions) shall be made to this document as they
become available . CNC will use commercially reasonable efforts to provide WCG
the ability to be a sales agent via CNC for Telecom Italia International network
services that are being deployed as part of the CNC/Telecom Italia relationship.
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"Subsidiary" shall mean any entity which WCG owns, directly or indirectly, fifty
percent (50%) or more of the equity securities or other equity interest granting
WCG voting rights exercisable in electing the management of such entity, but
only for so long as such ownership exists.
2. Non-Exclusive CNC Sales Agent.
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a) Subject to the terms contained herein, CNC hereby appoints WCG as CNC's non-
exclusive sales agent for the sale of Services in accordance with the terms
set forth in Exhibit B, and WCG hereby accepts such appointment. By acting
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as a sales agent, WCG shall not accept an order from a Customer for Services
unless and until CNC has provided WCG with a written quote for such Services.
Except as may be expressly set forth in CNC's quote for Services, WCG shall
not have the authority to make any commitments whatsoever on behalf of CNC.
b) CNC warrants and represents that it is the owner of, or has sufficient rights
to, the products that comprise the Services, including the software portions
thereof, that it has the right to provide the Services to Customers, that it
has the right to grant the agency rights stated in the preceding paragraph
and that such grant does not conflict with any prior agency agreement or
other agreement entered into by CNC, and CNC agrees that it shall not enter
into any agency agreement or other agreement in the future which conflicts
with this Agreement.
c) CNC and WCG shall meet no less frequently than once per quarter to discuss
all Services that have been developed or are in the process of being
developed by CNC. WCG will advise CNC of the current or developing Services
for which WCG desires to serve as CNC's sales agent under the terms of this
Agreement. For the designated Services that are immediately available, the
Parties will attach to this Agreement information in the forms of Exhibit A
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and Exhibit B with respect to those Services (including the applicable
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financial accounting practices for each product) so that WCG can begin
soliciting orders for those Services as CNC's agent. For the designated
Services that are in the process of being developed, CNC will develop and
attach to this Agreement information in the forms of Exhibit A and Exhibit B
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with respect to those Services as soon as the development of the subject
Services allows, so that WCG can begin soliciting orders for those Services
as CNC's agent immediately upon their availability to the public and without
regard to the timing of the availability of those Services to other agents,
provided, however, that CNC makes no representation or warranty that any
Services in development will be completed, commercialized and made generally
available. The availability of designated Services that are in the process of
being developed are also subject to the absence of special requirements or
modifications necessary for WCG. Without limitation as to other instances
wherein the Dispute Resolution Procedures apply, if the Parties disagree as
to which of CNC's products or services constitute "Services" under this
Agreement and must therefore be offered on an agency basis to WCG hereunder,
or if CNC otherwise refuses to offer to WCG the current or developing
Services designated by WCG under this paragraph, or the Parties otherwise
disagree as to either Party's compliance
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with the requirements of this paragraph, then the Parties agree to resolve
such disputes in accordance with the Dispute Resolution Procedures.
3. Scope of Agency; Employees. This Agreement appoints WCG as a non-
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exclusive agent for the purposes expressly stated herein and does not appoint
WCG as CNC's general or special agent and does not create a joint venture or
apply to confer any status, power or authority upon WCG other than as expressly
set forth herein. All persons employed by WCG to perform WCG's duties under
this Agreement are, and will remain, the employees and agents of WCG and are not
employees or agents of CNC. WCG shall have sole responsibility for its
employees' supervision, direction and control. Nothing contained in this
Agreement shall be construed to give either Party the power to direct and
control the day-to-day activities of the other.
4. Commission.
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a) Most Favored Nation Status. Commission rates, terms, and conditions of this
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Agreement shall be provided to WCG on a "Most Favored Nation" basis. As used
in this Agreement, "Most Favored Nation" status means that, taken as a whole
and not individually, the commission rates, terms, and conditions offered to
WCG under this Agreement are no less favorable than the commission rates,
terms, and conditions, taken as a whole and not individually, provided to any
other CNC agent. CNC will provide a nationally recognized independent third
party auditor retained by WCG access upon fifteen (15) days prior notice, at
WCG's expense, to other active agency agreements with CNC as a means by which
WCG can ensure to its satisfaction that it is receiving "Most Favored Nation"
status. If such auditor determines that another agent has more favorable
commission rates, terms and conditions, then CNC will give WCG the
opportunity to substitute all of the commission rates, terms and conditions
that apply to such other agent for the commission rates, terms and conditions
of this Agreement. . Remuneration will be in the form of credit going forward
and will not be adjusted on past financial statements. Remuneration will
applied if the material amount is greater than 10%.Said auditor shall be
limited to one (1) audit per year for no longer than five (5) days and shall
conduct the audit during normal business hours in a manner which will not
unduly disrupt CNC's operations. The results of the audit shall be deemed
Confidential Information.
b) Calculation of Commission. Subject to the terms of Section 4(a), as the
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sole, exclusive and entire compensation for performing WCG's obligations
under and during the term of this Agreement, CNC shall pay WCG a commission
based on the billing of the Services sold by WCG in the percent specified and
calculated according to Exhibit A attached hereto. Commission payments made
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under this Agreement shall accrue on the first day of billing on an order
received for the Services following the Effective Date. Commissions shall not
be paid on non-CNC originated Services including without limitation local
loops between Customer and CNC, 800 services, customer premises equipment,
third party software, etc.
c) Payment of Commission. The entire commission amount on an individual order
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shall be payable to WCG thirty (30) days from the date CNC receives the
initial payment from the
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Customer for the Services purchased by the Customer. The commission amount
will be based on the contract value of the agreement with the Customer as
determined by CNC financial accounting practices as defined in Exhibits A and
B. In the event that CNC extends its Customer agreement upon expiration, WCG
shall continue to receive commission payments on such agreement as set forth
herein. In the event the actual xxxxxxxx of a Customer are greater than the
initial contract value due to variable usage charges and/or purchase of
additional Services, WCG shall receive additional commissions on the
additional xxxxxxxx at the rates set forth in Exhibit A. In the event that a
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Customer cancels its agreement prior to its term commitment, its xxxxxxxx are
uncollectible, or adjustments are made to the xxxxxxxx then commission
chargebacks to WCG will be made accordingly. Additional commission payments
netted off by chargebacks will be performed two times per year. Payment of
commissions shall be in United States dollars and shall be subject to all
applicable governmental regulations and rulings, including withholding of any
taxes required by law
d) Adjustments. The commission rates, terms, and conditions of this Agreement
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will be reviewed annually and adjusted, if necessary, to reflect WCG's "Most
Favored Nation" status, current market conditions, and the economics of CNC's
business. Without limitation as to other instances wherein the Dispute
Resolution Procedures apply, if the Parties cannot agree on the items to be
adjusted in accordance with the preceding sentence, then the Parties agree to
resolve the dispute in accordance with the Dispute Resolution Procedures.
e) Taxes. CNC shall be solely responsible to pay all applicable state or
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federal taxes, including state sales tax and use taxes, with respect to the
Services. WCG shall be responsible for payment of taxes on income received by
WCG hereunder.
5. Quotas. Subsequent to a reasonable amount of time following initial
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training, WCG shall assign quota's to the WCG sales force designated by WCG to
solicit orders for the Services covered herein. WCG shall be solely responsible
for establishing quota levels and otherwise administering the quota program.
The requirement of establishing quotas shall not be deemed to create or imply
any minimum order requirements by WCG hereunder, and the failure to meet any
quotas shall not constitute a breach of this Agreement or otherwise affect any
Party's rights or obligations hereunder.
6. Prices and Terms of Sale. CNC shall provide WCG with copies of its
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current price lists, its availability schedules, and its standard terms and
conditions of sale, as established from time to time. The standard terms and
conditions that apply to each Service shall be added to Exhibit B from time to
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time as they become available. WCG shall quote to the Customers CNC's current
prices and shall sell the Services as delivered from CNC. If deviations are
required, WCG and CNC must mutually agree to accept such provisions. CNC will
be paid for the Services based upon current or contracted price lists, from the
Customer. CNC may alter the prices, availability schedules, and terms and
conditions for all new quotations upon thirty (30) days prior written notice to
WCG, such new pricing to take effect thirty (30) days after the date of such
written
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notice. The corresponding sections of Exhibit A and Exhibit B shall be revised
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accordingly. If a written quotation has been issued by CNC pursuant to Section
0.x.xx a Customer, CNC shall honor that quote for the length of time as
specified by the quotation itself, provided such quotation has not expired.
7. Training and Sales Support. CNC will provide, at its expense, a
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designated point-of-contact for sales and/or technical support questions shared
by other channel organizations. Additional sales and/or technical support will
be provided to WCG at WCG's expense and subject to mutual agreement. However,
CNC will credit WCG 2% of the monthly revenue (net of commissions payable to
WCG) in excess of $500,000 towards the cost of these resources. CNC will
provide initial training (e.g., one day of training per product unless
additional training is mutually agreed upon) on CNC Services as they are made
available to WCG. WCG will reimburse CNC for its out-of-pocket expenses to
perform such training. Such training will be designed to be a "train-the-
trainer" program, which will be held at a location to be mutually agreed to by
the Parties. Additional training may be performed by CNC for WCG, at WCG's
request and expense, if both CNC and WCG deem it necessary. From time-to-time,
and subject to mutual agreement, CNC may participate in cooperative sales calls
with WCG sales representatives for the purpose of enhancing the ability for WCG
representatives to become self-sufficient and productive in closing business on
behalf of CNC. CNC will provide either camera-ready copy or , at WCG's expense,
quantities of sales promotion literature and materials.
8. Acceptance; Performance by CNC. All requests for quotations for
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Services shall be made in writing via E-mail, fax and/or letter by WCG to CNC
and subject to acceptance by CNC at its principal office currently located at
the address listed herein. Upon acceptance by Customer of a quotation for
Services that has been accepted by CNC as described in the preceding sentence,
WCG shall provide a written commitment for all Services from the Customer. This
shall be in the form of a Purchase Order ("P.O.") from the Customer and CNC's
Services Contract for Services for the Customer. Such Services will not be
ordered until each P.O. and Services Agreement are received by CNC. WCG shall
have no authority to make any acceptance or commitments to Customers, including
delivery dates, without CNC's prior written approval. CNC shall have the sole
right of credit approval or credit refusal for the Customer in all cases. CNC
shall perform all Services subscribed to by Customers in accordance the
applicable Services Contract, and shall be responsible for all facets of Service
delivery, revenue collection (customer billing), warranty fulfillment and
customer service. CNC shall render all invoices directly to the Customer. The
Customer shall make payments directly to CNC. CNC shall undertake commercially
reasonable collection efforts for the Services sold through WCG hereunder.
9. Trademarks, Service Marks, Logos and Tradenames. CNC grants to WCG
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the non-exclusive, non-transferable right to use CNC's trademarks, service
marks, logos, and trade names that CNC may adopt from time to time ("CNC's
Trademarks") in connection with WCG's sale, advertisement or promotion of
Services, and shall provide WCG with such Trademarks within thirty (30) days of
the Effective Date. During the term of this Agreement, WCG shall have the
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right to indicate to the public that it is an authorized sales agent of CNC's
Services and to advertise such Services under the Trademarks according to CNC
style guides referenced in Exhibit C. Nothing herein shall grant WCG any right,
title or interest in CNC's Trademarks. All representations of CNC's Trademarks
that WCG intends to use shall be exact copies of those used by CNC or shall
first be submitted to CNC for approval of design, color, and other details
thirty (30) days prior to duplication and/or distribution.
10. Infringement Indemnity. The following terms apply to any infringement
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or claim alleging infringement by WCG in any country in which CNC provides the
Services of any patent, trademark, copyright, trade secret or other legally
protected proprietary right of any third party relating to the Services
(including WCG's use of the Trademarks in accordance with Section 9 hereof).
CNC shall indemnify, defend and hold harmless WCG, its owners, and the
directors, agents, officers and employees of each of them, from and against any
loss, damages, claim, suit or proceeding, expense or liability, including but
not limited to, costs of defense and reasonable attorney's fees, that may result
by reason of any such infringement or claim of infringement. WCG shall notify
CNC promptly of any such claim of infringement for which CNC is responsible
hereunder and shall cooperate with CNC (at CNC's expense) in every reasonable
way to facilitate the defense of any such claim. The indemnity obligations in
this Section shall survive the termination or expiration of this Agreement. This
Section sets forth CNC's entire liability and WCG's sole and exclusive remedy
with respect to the infringement of intellectual property rights.
11. Non-exclusive Agency Rights. This Agreement does not grant CNC an
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exclusive privilege to furnish to WCG any or all of the types of products and
services which are the subject of this Agreement which WCG may require. WCG
expressly reserves the right to serve as the agent for others for the sale of
products or services of the types which are the subject of this Agreement.
12. Indemnification. Each Party (the "Indemnifying Party") shall
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indemnify, defend and hold harmless the other Party, its owners, and the
directors, agents, officers, and employees of each of them (collectively, the
"Indemnified Party"), from and against any fine, penalty, loss, damages, claim,
suit or proceeding, expense or liability, including but not limited to, costs of
defense and reasonable attorney's fees, (i) for injury to or death of persons or
damage to or loss or destruction of property arising out of or resulting from or
in connection with the performance of this Agreement and caused by the acts or
omissions of Indemnifying Party, its contractors or agents, or an employee of
any of them, or (ii) arising out of or resulting from or in connection with any
material inaccuracy within, or breach of, a representation or warranty contained
in this Agreement. The Indemnified Party shall notify the Indemnifying Party
promptly of any such claim for which Indemnifying Party is responsible hereunder
and shall cooperate with the Indemnifying Party (at the Indemnifying Party's
expense) in every reasonable way to facilitate the defense of any such claim.
The indemnity obligations under this Section shall survive the termination or
expiration of this Agreement.
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13. Facilities. WCG shall provide itself with, and be solely responsible
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for, (i) such facilities, employees, and business organization, and (ii) such
permits, licenses, and other forms of clearance from governmental or regulatory
agencies, if any, as it deems necessary for the conduct of its business
operations in accordance with this Agreement.
14. Books, Records, and Audits: WCG and CNC shall maintain accurate,
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complete, and well organized records with respect to the Services subject to
this Agreement, at all times during this Agreement. During the term of this
Agreement each Party shall, upon fifteen (15) days written notice from the
other Party, make available to a nationally recognized independent third party
auditor retained by the requesting Party accurate books, records, and accounts
relating to the business of WCG and CNC with respect to the Services supplied by
CNC, for examination at the place of business where such books, records and
accounts are kept, during normal business hours and subject to the disclosing
party's reasonable security and confidentiality requirements WCG shall also
maintain a record of any customer complaints regarding either the Services or
CNC and promptly forward to CNC the information regarding those complaints.
15. Reporting. Each Customer, total charges per Customer, and commission
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per Customer shall be detailed on the commission statement to be provided by CNC
to WCG on a monthly basis in a form suitable to both parties, written or
electronic.
16. Publicity. The Parties agree to cooperate in developing joint press
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releases from time-to-time related to activities and accomplishments
contemplated by this Agreement. All press releases mentioning the other Party
must be approved in advance by both Parties prior to release. Such approval
will be completed within three (3) business days and shall not be unreasonably
withheld.
17. WCG Network Facilities; Peering Route Agreements; Telecom Italia.
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a) For so long as this Agreement is in effect, CNC shall use its best reasonable
efforts to groom traffic generated by WCG onto network facilities provided by
WCG.
b) CNC shall contract with WCG so that WCG and its affiliates can participate in
CNC's current and future private or public, peering or transit, or any other
special arrangement established to provide Internet connectivity solutions.
CNC shall provide said connectivity to WCG at cost, and will xxxx any direct
incremental expenses separately including administrative, network
engineering, & network operation costs, necessary to allow WCG such
participation. WCG shall reimburse CNC for these costs & expenses.
c) CNC and WCG agree to exercise commercially reasonable efforts to establish a
professional services, field services and other related services agreement
between WCG and Telecom Italia for support of the Telecom Italia,
International Network roll out. The parties further agree to propose the
CNOP's organization as the entity to perform network management, network
engineering, and network administration for the Telecom Italia International
Network. Any cost benefits to CNOP's (e.g., due to increased economies of
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scale) from the Telecom Italia agreement will accrue to CNC in the form of a
reduction in CNOP's costs to CNC. WCG's pricing for all of the services
described in this paragraph shall be established by WCG at its sole
discretion.
18. Term. This Agreement shall be for a period of two (2) years
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commencing upon the Effective Date (the "Initial Period") subject to the right
of either party to terminate as provided in Section 19 (Termination).
Thereafter, this Agreement shall automatically renew for additional twelve (12)
month period(s) unless either party notifies the other of its intention to
terminate or modify this Agreement. Such notification (the "Notice of
Nonrenewal") shall be provided in writing sixty (60) days prior to expiration of
the then current term. Notwithstanding the foregoing, and unless (a) CNC
terminates this agreement for 'just cause' as defined in Section 19
(Termination), or (b) WCG's ownership of CNC's outstanding common or preferred
stock, as the case may be, falls below 5%, WCG shall have the right to renew
this Agreement under prices, terms, and conditions agreed to at the annual
review period described in Section 4.
19. Termination. Either party may terminate this Agreement upon the
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occurrence of "just cause" for termination, as defined below. Termination for
just cause shall become effective immediately as of the date on which such just
cause occurred (which date, in the case of paragraph (a) below, shall be day
following the end of the referenced cure period), unless otherwise provided for
in this Agreement. Just cause for termination by a Party shall consist of the
following:
a) Failure to Comply with Obligations. Failure by the other Party (the
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"Noncomplying Party") to comply with any of its obligations hereunder within
thirty (30) calendar days from its receipt of written notice to that effect from
the other Party or, if the failure to comply is of such a nature that it cannot
reasonably be expected to be remedied within thirty (30) days, the Noncomplying
Party's failure to exert substantial efforts to correct such failure within such
thirty-day time period.
b) Dissolution. Dissolution or any assignment by the other Party for the
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benefit of its creditors, the appointment of a receiver for, or any execution
levied upon, all or substantially all of the other Party's business or assets,
or the filing of any petition for voluntary or involuntary bankruptcy or similar
proceeding for or against the other Party.
The termination of this Agreement shall not affect any accrued rights or
obligations of either Party as of the effective date of such termination, nor
shall it affect any rights or obligations of either Party which are intended by
the Parties to survive any such termination, including without limitation those
contained in Section 10 (Infringement Indemnity), Section 12 (Indemnification),
Section 21 (Confidential Information), and CNC's obligations to pay commissions
pursuant to Section 4.
20. Transition Period. In the event this Agreement is terminated by WCG
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for "just cause", then , at WCG's request, CNC will waive any remaining term
commitments for CNC Customer's
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acquired through WCG under this Agreement in order to enable WCG to migrate
those Customers to WCG services in a timely manner. The time period between the
date of a Notice of Nonrenewal and the end of the term in which such notice is
provided shall hereinafter be referred to as the "Transition Period". CNC and
WCG agree to utilize commercially reasonable efforts to effectuate a smooth and
orderly change during the Transition Period in order to satisfy the best
interests of CNC's Customers.
21. Confidential Information: Each party agrees to maintain all
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Confidential Information (as hereinafter defined) in confidence to the same
extent that it protects its own similar Confidential Information and to use such
Confidential Information only as permitted under this Agreement. For purposes of
this Agreement "Confidential Information" shall mean information including,
without limitation, computer programs, code, algorithms, names and expertise of
employees and consultants, know-how, formulas, processes, ideas, inventions
(whether patentable or not), schematics and other technical, business, financial
and product development plans, forecasts, strategies and information marked
"Confidential", or if disclosed verbally, is identified as confidential at the
time of disclosure and reduced to a confidential writing within thirty (30) days
after such disclosure. Each party agrees to take all reasonable precautions to
prevent any unauthorized disclosure or use of Confidential Information
including, without limitation, disclosing Confidential Information only to its
directors, officers, employees and/or professional advisors (a) with a need to
know to further permitted uses of such information; (b) who are parties to
appropriate agreements sufficient to comply with this Section; and (c) who are
informed of the nondisclosure/ non-use obligations imposed by this Section; and
both parties shall take appropriate steps to implement and enforce such non-
disclosure/non-use obligations. The foregoing restrictions on disclosure and use
shall survive for three (3) years following termination of this Agreement but
shall not apply with respect to any Confidential Information which: (i) was or
becomes publicly known through no fault of the receiving party; (ii) was
rightfully known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the disclosing
party; (iii) is independently developed by the receiving party without the
participation of individuals who have had access to the Confidential
Information; (iv) is approved by the disclosing party for disclosure without
restriction in a written document which is signed by a duly authorized officer
of such disclosing party; or (v) the receiving party is legally compelled to
disclose; provided, however, that prior to any such compelled disclosure, the
receiving party will (a) assert the privileged and confidential nature of the
Confidential Information against the third party seeking disclosure and (b)
cooperate fully with the disclosing party in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event that such
protection against disclosure is not obtained, the receiving party will be
entitled to disclose the Confidential Information, but only as, and to the
extent, necessary to legally comply with such compelled disclosure. Each of the
Parties hereto agrees not to disclose to any third party the terms of this
Agreement without the prior written consent of the other party hereto, except to
advisors, investors and others on a need-to-know basis under circumstances that
reasonably ensure the confidentiality thereof, or to the extent required by law.
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23. LIMITATION ON LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
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THE OTHER OR TO ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR
INDIRECT DAMAGES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, NEITHER PARTY'S LIABILITY TO TO THE OTHER SHALL
IN ANY EVENT EXCEED THE AMOUNT OF AGGREGATE NET REVENUE RECEIVED BY CNC LESS WCG
COMMISSIONS FROM CNC CUSTOMERS PROCURED BY WCG AS A SALES AGENT FOR CNC DURING
THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THAT THE FOREGOING
LIMITATION SHALL NOT APPLY TO LIMIT LIABILITY AMOUNTS ARISING FROM SECTIONS 10
AND 12
24. Governing Law and Jurisdiction. This Agreement shall be governed by
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and construed under the laws of the state of California, without reference to
conflict of law principles.
25. Entire Agreement. This Agreement, including any Exhibits and
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attachments that may be added from time to time, sets forth the entire agreement
and understanding of the parties relating to the subject matter herein and
merges all prior discussions between them. No modification of or amendment to
this Agreement, nor any waiver of any rights under this Agreement, shall be
effective unless in writing signed by the party to be charged.
26. Notices. Any notice required or permitted by this Agreement shall be
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in writing and shall be deemed given (a) upon personal delivery, (b) on the
third day following mailing sent by registered or certified mail, return receipt
requested, postage prepaid, (c) upon confirmed delivery by means of a nationally
recognized overnight courier service or (d) upon confirmed transmission of
facsimile, addressed to the other party at the address shown at the beginning of
this Agreement or at such other address for which such party gives notice
hereunder.
27. Force Majeure. Neither Party shall be deemed in default of this
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Agreement to the extent that any delay or failure in the performance of its
obligations results from an Act of God, act of civil or military authority,
embargo, epidemic, war, riot, insurrection, fire, explosion, earthquake, flood,
unusually severe weather conditions or any other cause beyond such Party's
reasonable control which cannot be overcome by due diligence, provided that such
Party (the "Affected Party") gives the other Party (the "Unaffected Party')
prompt notice of such condition.
If either Party's performance is so excused, the Unaffected Party may either:
a) require the Affected Party to continue performance as soon as practicable
after the delay has ended; or
b) terminate without penalty any affected obligation (or portion thereof) of the
Unaffected Party hereunder by giving written notice to the Affected Party.
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The Unaffected Party may select option (a) as to certain obligations hereunder
or parts thereof and option (b) as to other affected obligations or parts
thereof. In the absence of notice of selection of any option with respect to a
particular affected obligation, option (a) will be deemed selected.
28. Non-Assignability and Binding Effect. Neither Party shall assign its
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rights or delegate its duties under this Agreement without the prior written
consent of the other Party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing a. WCG may, with written notice to CNC, assign
this Agreement to a Subsidiary; and
CNC may, with written notice to WCG, assign this Agreement to an entity that is
formed for CNC's reincorporation as a Delaware corporation. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
29. Legal Expenses. The prevailing party in any legal action brought by
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one Party against the other and arising out of this Agreement shall be entitled
to reimbursement for its expenses, including court costs and reasonable
attorneys' fees.
30. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original.
31. Headings. The section headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
32. Severability. If any provision or part of a provision of this
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Agreement shall be invalid or unenforceable, such invalidity or unenforceability
shall not invalidate or render unenforceable the entire Agreement or provision
but rather the entire Agreement or provision shall be construed as if not
containing the particular invalid or unenforceable provision or portion thereof,
and the rights and obligations of CNC and WCG shall be construed and enforced
accordingly.
33. Resolution of Disagreements Between Parties. No Party to this
-------------------------------------------
Agreement shall be entitled to take legal action with respect to any dispute
relating hereto until it has complied in good faith with the following
alternative dispute resolution procedures. If a dispute, claim or controversy
arises with respect to or relates to any Section of this Agreement, then the
following dispute resolution procedures shall govern the parties' conduct:
a) The Parties shall attempt promptly and in good faith to resolve any
dispute arising out of or relating to this Agreement through
negotiations between representatives who have authority to settle the
controversy. Either Party may give the other Party written notice of
any such dispute not resolved in the normal course of business.
Negotiations extending ten (10) days after the disputing Party's
notice shall be
11
deemed at an impasse, unless otherwise agreed by the Parties. If a
negotiator intends to be accompanied at a meeting by an attorney, the
other negotiator(s) shall be given at least two (2) working days
notice of such intention and may also be accompanied by an attorney.
All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of the
Federal and State Rules of Evidence.
b) If a dispute is at an impasse (i.e., it has not been resolved within
ten (10) days of the disputing Party's notice), the dispute shall be
settled by arbitration in a mutually convenient location, in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that such notice is
given. If the parties are unable to agree on a single arbitrator
within ten (10) days from the date of an impasse as set forth in
Subsection (a), then the CNC and WCG shall each select one arbitrator
within ten (10) days and the two (2) arbitrators shall select a third
arbitrator within ten (10) days. If a Party does not designate an
arbitrator or if the two appointed arbitrators cannot agree on the
final arbitrator within the foregoing time periods, then the American
Arbitration Association shall select the arbitrator(s) upon request of
either Party. The decision of the arbitrator(s) shall be final and
binding upon the parties and shall include written findings of law and
fact, and judgment may be obtained thereon by either Party in a court
of competent jurisdiction. Each Party shall bear the cost of preparing
and presenting its own case. The cost of the arbitration, including
the fees and expenses of the arbitrator(s), shall be shared equally by
the Parties hereto unless the award otherwise provides. The
arbitrator(s) shall be instructed by the Parties to establish
procedures such that a decision can be rendered by the arbitrator(s)
within sixty (60) days of the date that the last arbitrator is
selected.
c) The obligation herein to arbitrate shall not be binding upon either
Party with respect to requests for preliminary injunctions, temporary
restraining orders, specific performance or other procedures in a
court of competent jurisdiction to obtain interim relief when deemed
necessary by such court to preserve the status quo or prevent
irreparable injury pending resolution by arbitration of the actual
dispute.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written, to be effective as of the Effective Date.
CONCENTRIC NETWORK CORPORATION("CNC") XXXXXXXX COMMUNICATIONS GROUP, INC.
("WCG")
By: /s/Xxxxx X. Xxxxxxxx By: /s/Xxxxxx Xxxxxxxx
--------------------------------- --------------------------------
Printed Name: Xxxxx X. Xxxxxxxx Printed Name: Xxxxxx Xxxxxxxx
----------------------- ---------------------
12
Title: President and CEO Title: Senior Vice President
------------------------------ -----------------------------
13
EXHIBIT A
---------
COMMISSION PRICING FOR WCG
REMOTELINK/TM/
------------------------------------------------------------------------------------------------------------------------------------
NON-RECURRING CHARGES (NRC) DESCRIPTION LIST PRICE COMMISSIONABLE
------------------------------------------------------------------------------------------------------------------------------------
CPE router Bay Networks AN $ 1,895 NO
(optional, customer may Router
supply if desired) 2 ethernet ports,
1 sync port
CSU Racal 5311 T-1 CSU $ 995 NO
(REQUIRED, FOR EFFECTIVE
CIRCUIT MAINTENANCE AND
TROUBLESHOOTING)
DAF Installation & Setup Installation of telco circuit from $ 3,000 YES
Concentric to customer site, provisioning
of service, and onsite installation and
testing of connectivity through CSU and
router
NT Server Compaq Proliant 800 6/180 $10,000 NO
(optional, customer may 180 megahertz Pentium Pro 4.6
supply if desired) gigabyte hard disk,
64 megabytes RAM, 10BaseT ethernet card,
8x CD-ROM, NT 4.0, 5 user license
RADIUS Server Software Steel Belted RADIUS Server $ 4,000 NO
(optional, customer may software, for NT or Netware
supply if desired) (specify which platform is desired)
On Site Installation 1 SE day, onsite installation of $1,250 + NO
support and Network RADIUS server, training on use, actual travel
Management Training Course and training on use of ConcentricView. expenses
Oriented to customer network
management personnel
End User Training Course 1 SE day, onsite training class $1,250 + NO
oriented to end users- how to set actual travel
up access to RemoteLink, and expenses
use the service
Help Desk Training Course 1 day training course for customers $500 per NO
help desk personnel, training them to attendee,class
perform 1/st/ tier support of end given in our
users dialing in through Concentric. Saginaw, Michigan
This is oriented to customers support center
wanting to do 1/st/ tier support
themselves.
MONTHLY RECURRING CHARGES DESCRIPTION PRICE
(MRC)
RemoteLink/TM/ usage price usage charges for remote user see table below YES
activity
Monthly DAF fees Charge for the FullChannel/TM/, see table below YES
FlexChannel/TM/, or LEC Frame Relay
dedicated connection to Concentric
Tier 1 customer support, Concentric help desk support, 3 $1/minute of use, NO
Virtual CSR, minute average speed to answer actual amounts
3 minute ASA using virtual CSR's billed monthly- SEE
(Fixed response time BELOW FOR ADDITIONAL
option, costs will vary) IMPORTANT INFORMATION
Tier 1 customer support, Concentric help desk support, 1 $3/minute of NO
Virtual CSR, minute average speed to answer use, actual
1 minute ASA using virtual CSR's amounts billed
(Fixed response time monthly- SEE BELOW
option, costs will vary) FOR ADDITIONAL
IMPORTANT INFORMATION
14
------------------------------------------------------------------------------------------------------------------------------------
Tier 1 customer support, Concentric help desk support, $300 per shift, NO
1 shift seat one physical CSR, 8 hrs. $1,500 per week,
(Fixed cost option, per day, 5 days per week, $78,000 per year
response times to answer annual basis billed monthly- SEE
users will vary depending BELOW FOR ADDITIONAL
on call load and peak IMPORTANT INFORMATION
periods)
15
REMOTELINK USAGE PRICING*
------------------------------------------------------------------------------------------------------------------------------------
NUMBER OF HOURS CONSUMED DOLLARS PER 18% WCG DOLLARS PER 18% WCG DOLLARS PER 18% WCG
PER MONTH HOUR: NO COMMISSION HOUR: COMMISSION HOUR: COMMISSION
CONTRACT TERM 1 YEAR CONTRACT 2 YEAR CONTRACT
COMMITMENT COMMITMENT COMMITMENT
------------------------------------------------------------------------------------------------------------------------------------
0 - 25,000 $2.55 $ .46 $ 2.30 $ .41 $ 2.17 $ .39
25,001 - 50,000 $2.42 $ .44 $ 2.19 $ .39 $ 2.07 $ .37
50,001 - 75,000 $2.35 $ .42 $ 2.12 $ .38 $ 1.99 $ .36
75,001 - 100,000 $2.30 $ .41 $ 2.07 $ .37 $ 1.94 $ .35
100,001 - 125,000 $2.27 $.405 $ 2.04 $ .365 $ 1.91 $ .34
125,000 + $2.24 $ .40 $ 2.01 $ .36 $ 1.88 $ .335
MINIMUM MONTHLY PAYMENT NONE NA $10,000 $1,800 $10,000 $1,800
------------------------------------------------------------------------------------------------------------------------------------
*PRICES ARE BASED UPON LOCAL (I.E. NO TOLL CHARGE) ANALOG DIAL-UP ACCESS.
0-000 XXXXXX DIAL-UP ACCESS IS BILLED AT THE FLAT RATE OF $6 PER HOUR.
REMOTELINK DAF MONTHLY RECURRING CHARGES
Several options are available for connection of the customers network to
Concentric. These options, and their pricing, are listed below. In addition to
the charges noted, there will be a local loop fee from the Local Exchange
Carrier, which is variable depending on distance between their POP and the
Customer data center. Call for a specific local loop quote from Concentric.
FullChannel/TM/ T1 Usage Pricing
FullChannel/TM/ T1 offers a full T1 (1.54 Mbps) of bandwidth over a non-shared,
non-fractional leased line. Monthly billing is based on traffic samples taken
every five minutes, 24 hours a day, 7 days a week. Your monthly charge is
determined by the average of these samples.
----------------------------------------------------------------------
AVERAGE USAGE LEVEL MONTHLY FEE(1) 15% WCG COMMISSION
----------------------------------------------------------------------
-64Kbps $1,095.00 $164.25
64-128Kbps $1,595.00 $239.25
128-256Kbps $2,095.00 $314.25
256-384Kbps $2,395.00 $359.25
over 384Kbps $2,695.00 $404.25
FullChannel T1 Protected Pricing
Protected pricing is not usage based. It is simply billed at the flat monthly
rate shown, and requires a RemoteLink contract term of 1 year or more.
---------------------------------------------------------
SUSTAINED LEVEL MONTHLY FEE 15% WCG COMMISSION
---------------------------------------------------------
64Kbps to over 384Kbps $2,095.00 $314.25
16
FlexChannel/TM/ T1 Pricing
FlexChannel/TM/ T1 offers you a predetermined level (128Kbps - 512Kbps) of
bandwidth on a fractional T-1 line, for a fixed monthly fee. You can always
upgrade to the full T1 later.
-----------------------------------------------------------------
FRACTIONAL T1 BANDWIDTH MONTHLY FEE(1) 15% WCG COMMISSION
-----------------------------------------------------------------
128Kbps $ 895.00 $134.25
256Kbps $1,295.00 $194.25
384Kbps $1,595.00 $239.25
512Kbps $1,895.00 $284.25
LEC Frame Relay Pricing (2)
LEC Frame Relay service offers reliable, cost-effective Internet access from
56Kbps - 512Kbps* at a lower cost than traditional leased lines. While we can't
guarantee the throughput of the LEC's frame cloud, we will not over subscribe
the entrance facility. The committed information rate (CIR) over the Concentric
Network is guaranteed.
--------------------------------------------------------------------------------
FRAME RELAY CIRCUIT/CIR MONTHLY FEE(1) 15% WCG COMMISSION
--------------------------------------------------------------------------------
56Kbps/32Kbps $ 395.00 $ 59.25
128Kbps/64Kbps $ 795.00 $119.25
256Kbps/128Kbps $ 995.00 $149.25
512Kbps/256Kbps $1,095.00 $164.25
(1) Monthly billing based on average usage.
(2) Offer varies by region, call for exact quote.
CONCENTRICHOST
--------------
--------------------------------------------------------------------------------------------------
PRODUCT NAME DESCRIPTION NUMBER OF WEB MONTHLY 15%
EMAIL SITE RECURRING WCG
ACCTS STORAGE CHARGES COMMISSION
--------------------------------------------------------------------------------------------------
HomeOffice Shared service 5 5MB $29.95 $4.49
with customized
sub-domain
SmallBusiness Shared service 5 10MB $39.95 $5.99
with full domain
name service and
dial-up account
Premium Shared service 10 1000MB $59.95 $8.99
with full domain
name service and
dedicated IP
address
ConcentricHost is a high performance shared web server service that give the End
User an inexpensive web presence. All Web servers reside at one of CNC's data
centers.
17
CONCENTRICHOST-COLOCATION
-------------------------
-----------------------------------------------------------------------------------------------------------------
DESCRIPTION BANDWIDTH MONTHLY RECURRING CHARGES (1) 15% WCG COMMISSION
-----------------------------------------------------------------------------------------------------------------
Server on shared Ethernet segment 1Mbps $1,500 $255
Server on shared Ethernet segment 2Mbps $2,500 $375
Server on shared Ethernet segment 4Mbps $4,000 $600
Server on dedicated Ethernet segment 10Mbps $6,000 $900
Install & Setup Per server $1,000 $150
Additional rack space 8" x 19" Space $ 500 $ 75
Installation of extra rack space $500 - NRC $ 75
Engineering assistance Scheduled $100/Hr. NA
Engineering assistance Emergency $250/Hr. NA
ConcentricHost-Colocation is a service that allows CNC customers to put their
own dedicated Web servers in one of our data centers. The following is a list
of CNC co-location services that are currently offered. Each connection comes
with an 8" rack space based Future services are being defined and will be
introduced as they are developed.
CUSTOMER SUPPORT
FIRST TIER END USER SUPPORT
Concentric offers two types of First Tier End User Support. Customer may select
from the following two options.
Shift Seat Customer Support Representative (CSR):
------------------------------------------------
- One (1) Support Representative Shift Increment is $300.00 . A Support
Representative Shift Increment is an eight (8) hour increment of time, provided
for 5 out of 7 days in each week, not including Holidays, during which one (1)
Customer Support Representative will be dedicated to answering support calls of
the Customer's Customer End Users.
- The minimum purchase amount is one (1) shift for a five (5) day week for one
year for $78,000.00
- Shift seats may be purchased in 8 or greater hour increments, and will be
prorated. Start of shift times may be supplied by Customer according to their
requirements.
- When shift seats are purchased, there are no Average Speed to Answer (ASA)
guarantees. The actual time to answer will vary depending on incoming call
traffic, and peak flows.
Virtual Customer Support Representative (CSR):
---------------------------------------------
- Utilizes the Concentric pool of CSR's
- Automatic Call Distributor system prioritizes incoming calls to deliver a
guaranteed ASA*
- ASA guaranteed at 3 minutes is billed out at $1 per actual minute used
- ASA guaranteed at 1 minute is billed out at $3 per actual minute used
IT IS IMPORTANT TO NOTE THAT BY PURCHASING SHIFT SEATS, COSTS ARE FIXED, BUT
RESPONSE TIMES WILL VARY. BY UTILIZING THE VIRTUAL CSR OPTION, RESPONSE TIMES
ARE FIXED, BUT COSTS WILL VARY.
SECOND TIER END USER SUPPORT
Included at no extra charge for so long as Customer is purchasing Concentric
RemoteLink. Second Tier support is provided by
18
Concentric to up to five (5) identified Customer help desk personnel.
19
EXHIBIT B
---------
DESCRIPTION OF SERVICES
with attachments for each Service setting forth the terms, conditions,
service level agreements and pricing relating thereto
CNC REMOTELINK/TM/ SERVICES AGREEMENT
This agreement ("Agreement") is made and entered into on this ___
day of _______, 199 ("Effective Date") by and between Concentric Network
_
Corporation ("Concentric"), a Florida corporation with a principal place of
business at 00000 X. Xxxxxx Xxx., Xxxxxxxxx XX 00000, and
________________________( "Customer") a ______________ corporation with a
principal place of business at ________________________________.
WHEREAS, Customer would like to outsource the operation of remote
access to Customer's LANs and Intranets;
WHEREAS, Customer wishes to obtain remote access service from
Concentric, and Concentric wishes to provide this service to Customer,
NOW THEREFORE, the parties agree as follows:
1.0 DEFINITIONS
1.1 "CityFind" shall mean the object code of the software application
which allows Customer End Users to locate their nearest Concentric
Point of Presence.
1.2 "Concentric Network" shall mean the collection of network
equipment, access lines, data centers and network management tools
which Concentric operates to deliver network services to customers.
1.3 "Concentric RemoteLink/TM/" shall mean the network service
offered by Concentric that allows Customer End Users to access the
Customer's internal corporate network, local area network(s) or
intranet via a connection from the Concentric Network to the
Customer's home gateway.
1.4 "ConcentricView/TM/" shall mean the web-based desktop network
monitoring application developed by Concentric, for the purpose of
monitoring vital network data on the performance of the Concentric
Network such as user activity and router and firewall statistics.
1.5 "Customer End User(s)" shall mean those employees, consultants,
contractors, and other individuals or entities outside the Customer's
firewall that the Customer has
20
authorized to use personal computers running Windows to use the
Concentric RemoteLink/TM/ service and who have accepted the end user
license agreement accompanying the CityFind software, but only so long
as Customer has authorized such employees, consultants, contractors,
and other individuals or entities.
1.6 "DAF" shall mean the dedicated access facilities and provisioning
selected by Customer to connect the Customer's home gateway to the
Concentric Network.
1.7 "Fees" shall mean all amounts due hereunder including amounts due
for One Time Items and Monthly Recurring Items as set forth in Exhibit
A, and as such items are selected by Customer in Exhibit C.
1.8 "First Tier End User Support" shall mean the provision of direct
telephone based support to Customer End Users for connectivity
problems directly associated with connecting a personal computer with
an analog modem running Windows to the Concentric Network. First Tier
End User Support includes troubleshooting to verify that data
transmitted by the user is being delivered to the Concentric router
interface which provides connection to the Customer network.
1.9 "RADIUS Server" shall mean a server that contains a database
which operates per the Remote Authentication Dial In User Service
protocol as defined in IETF XXX 0000.
1.10 "Second Tier End User Support" shall mean the provision of direct
telephone based support by Concentric to up to five (5) designated
members of the in-house support desk of Customer so that the in-house
support desk of Customer can directly support Customer End Users in
connectivity to the Concentric RemoteLink/TM/ service. Second Tier End
User Support does not include direct telephone based support of end
users.
1.11 "Term" shall mean the period during which this Agreement is in
effect as determined by the Customer's selection in Exhibit C.
2.0 NETWORK SERVICES PROVIDED BY CONCENTRIC
2.1 Subject to the terms and conditions herein, Concentric shall
make available access to the Concentric Network via the Concentric
RemoteLink service to Customer End Users using a personal computer
running Windows equipped with an analog modem with a PPP connection
over a local dial-up telephone access line.
2.2 Subject to the terms and conditions herein, Concentric will
deliver IP data network traffic from the Customer End User's personal
computer through the dial up access portion of the Concentric Network
(at speeds currently up to 28.8 kbps), to the
21
router or termination equipment at the Customer's home gateway.
Concentric will interconnect the Concentric Network to the Customer's
home gateway via the DAF.
2.3 Concentric shall use commercially reasonable efforts to operate
and monitor the Concentric Network on a seven (7) days a week, twenty-
four (24) hours a day, three hundred sixty-five (365) days a year
basis, with scheduled maintenance downtimes.
2.4 Concentric will deliver ConcentricView /TM/ to Customer upon
installation of the DAF.
2.5 Concentric Network Corporation guarantees throughput and latency
for the dedicated access connection to the Concentric Network. Latency
is guaranteed to be 200 milliseconds or less between any two points on
the Concentric Network. Throughput is guaranteed at the data rate
selected for the DAF connection.
3.0 LICENSE GRANT AND RESTRICTIONS
3.1 Subject to the terms and conditions herein, Concentric hereby
grants and Customer hereby accepts a nonexclusive, nontransferable
license to: (a) use the CityFind software in accordance with the
license grant contained in the end user license agreement that
accompanies the CityFind software; (b) reproduce, without change, only
that quantity of the CityFind software necessary for Customer End
Users and members of Customer's in house support desk; and (c)
distribute the CityFind software to Customer End Users and members of
Customer's in house support desk.
3.2 Subject to the terms and conditions herein, Concentric hereby
grants and Customer hereby accepts a nonexclusive, nontransferable
license to access the server(s) on the Concentric Network containing
ConcentricView and use ConcentricView solely for Customer's internal
use in monitoring Customer End User usage by members of Customer's in
house support desk and network system administrator(s).
3.3 Customer's license to use the NT Server software and/or RADIUS
Server software, and any other third party software, if Customer had
elected to obtain such software from Concentric, is as set forth in
the license agreement accompanying such software.
3.4 Customer agrees not to alter, amend, remove or disable any
proprietary notice, legend or license agreement contained in or on any
software provided to Customer by Concentric. Customer agrees not to
reproduce (except as expressly permitted herein), modify, translate,
transform, de-compile, reverse engineer, disassemble, or otherwise
determine or attempt to determine source code from the executable code
of, the CityFind
22
or to permit or authorize a third party to do so. Title to the
CityFind software, ConcentricView, and all related technical know-how
and intellectual property rights therein and in the Concentric Network
and Concentric RemoteLink are and shall remain the exclusive property
of Concentric and/or its suppliers. Customer shall not take any action
to jeopardize, limit or interfere in any manner with Concentric and
its suppliers' ownership of and rights with respect to the CityFind
software, ConcentricView, the Concentric Network and Concentric
RemoteLink.
3.5 Customer shall use commercially reasonable efforts to: (a)
enforce each end user license agreement for CityFind with each
Customer End User; (b) require the return or destruction of the
CityFind software from a Customer End User when no longer authorized
by Customer to use Concentric RemoteLink (e.g. employee leaves
Customer's employment, consultant completes assignment); and (c)
cooperate with Concentric to prevent or stop the unauthorized use,
reproduction or distribution of the CityFind software.
3.6 Customer shall fully comply with all then current applicable
laws, rules and regulations relating to the export of technical data,
including, but not limited to any regulations of the United States
Office of Export Administration and other applicable governmental
agencies. Customer hereby assures Concentric that it will not export
directly or indirectly (including via remote access, FTP or other
means) any part of CityFind or technical data to any country for which
a validated license is required under US law without first obtaining a
validated license.
4.0 INSTALLATION AND SUPPORT
4.1 Concentric and Customer will cooperate and use commercially
reasonable efforts to do all things necessary to perform and complete
the implementation plan tasks set forth in Exhibit B within ninety
(90) days of the Effective Date.
4.2 Unless Customer selects and pays for Concentric to provide First
Tier End User Support, Customer shall be solely responsible for
providing First Tier End User Support. If Customer selects and pays
for Concentric to provide First Tier End User Support, and Customer
supplies Concentric with a RADIUS test account, Concentric shall also
provide troubleshooting on verification of the operational status of
the RADIUS server as appropriate.
4.3 If Customer is providing First Tier End User Support, Customer
must select and pay for the Help Desk Training Course described in
Exhibit A. In the event that Concentric's Support Center is being
contacted by Customer End Users for First Tier End User Support,
Customer agrees to: (a) cooperate with Concentric to minimize such
contact; and (b) pay Concentric its then current support charges for
support provided by Concentric to such Customer End Users.
23
4.4 Concentric shall provide Second Tier End User Support for so long
as Customer is paying Concentric for the Concentric RemoteLink
service.
5.0 CUSTOMER RESPONSIBILITIES
5.1 Customer is solely responsible for maintaining the integrity and
ongoing operation of the RADIUS Server which the Concentric Network
queries for the purpose of authenticating Customer End Users as valid
and allowing access to the Concentric Network via Concentric
RemoteLink. Customer is solely responsible for ensuring that the
RADIUS Server operates and conforms to the specifications outlined in
Exhibit D.
5.2 Customer understands and agrees that if the RADIUS Server is not
operational or accessible by the Concentric Network, or does not
operate and conform to the specifications outlined in Exhibit D, that
access to the Concentric RemoteLink service by Customer End Users may
be severely impaired and/or cease entirely.
5.3 Customer, at its sole discretion, may add or delete Customer End
Users to or from the RADIUS Server. Customer, and not Concentric,
controls who can be authenticated to have access to the Concentric
RemoteLink/TM/ service. Customer, and not Concentric, is solely
responsible for maintaining adequate network security practices,
including establishment of appropriate firewalls, managing assignment
of Customer End Users and the frequency of changes in login ID's and
passwords.
5.4 Customer is solely responsible for the operation of its home
gateway and its internal corporate network including all routers,
servers, applications and leased lines which interconnect with the
Concentric RemoteLink/TM/ service.
5.5 In the event that Customer selects and pays for Concentric to
provide First Tier End User Support, Customer may provide Concentric
---
with a RADIUS test account ID/password if Customer desires Concentric
help desk personnel to assist in the verification of the operation of
Customer's RADIUS server.
5.6 Customer is solely responsible for ensuring that: (a) Customer
End Users have the necessary client software to access the Concentric
RemoteLink service (e.g. stack and dialer software); and (b)
Customer's designated in-house support personnel and network system
administrators have the necessary client software to access
ConcentricView, and /(COPYRIGHT)/ End Users are given valid ID's and
passwords for access into the Customer's network. Concentric will hand
off any first tier support calls to Customer's help desk, which appear
to be related to invalid ID's or password s.
5.7 In the event that Customer End Users use IP and PPP stack and
dialer software other than the standard Windows '95 provided stack and
dialer, and if Concentric is to
24
provide First Tier support of Customer End Users, then Customer is
required to provide a copy of each stack and dialer to be supported to
Concentric Customer Support.
5.8 Customer is solely responsible for ensuring that End Users are
given valid ID's and passwords for access into the Customer's network.
If Concentric is performing First Tier support, Concentric will
escalate any support calls which appear to be related to invalid ID's
or passwords, to the Customer's help desk for resolution.
6.0 FEES AND BILLING
6.1 Customer will pay Concentric all Fees for One Time Fees and
Monthly Recurring Items selected by Customer in Exhibit C in
accordance with the price schedule in Exhibit A.
6.2 All Fees shall be paid at Concentric's option: (a) at
Concentric's address as indicated in this Agreement or at such other
address as Concentric may from time to time indicate by proper notice
hereunder; or (b) by wire transfer to a bank and account number
designated by Concentric. All invoices are due and payable within
thirty (30) days of Concentric's date of invoice. Interest shall be
payable at the rate of one percent (1%) per month or at the maximum
rate permitted by law, whichever is less, on all overdue and unpaid
invoices until paid in full.
6.3 All Fees are in U.S. Dollars and are exclusive of any applicable
taxes. Customer shall pay, indemnify and hold Concentric harmless from
all sales, use, value added or other taxes of any nature, other than
taxes on Concentric's net income, including penalties and interest,
and all government permit or license fees assessed upon or with
respect to any Fees (except to the extent Customer provides Concentric
with a valid tax exemption certificate). If any applicable law
requires Customer to withhold amounts from any payments to Concentric
hereunder: (a) Customer shall effect such withholding, remit such
amounts to the appropriate taxing authorities and promptly furnish
Concentric with tax receipts evidencing the payments of such amounts;
and (b) the sum payable by Customer upon which the deduction or
withholding is based shall be increased to the extent necessary to
ensure that, after such deduction or withholding, Concentric receives
and retains, free from liability for such deduction or withholding, a
net amount equal to the amount Concentric would have received and
retained in the absence of such required deduction or withholding.
6.4 The "Service Order Date" refers to the date Concentric receives
and processes Customer's completed order, which results in activity by
Concentric such as consultation, training and telco circuit ordering.
The Service's Actual Startup date is three (3) business days after the
day in which the telco circuit between Customer's site and the
Concentric point-of-presence (POP) used for the Service is turned up
(completed and activated by the
25
telco) and Customer is notified of such availability by Concentric.
The "Anniversary Date" shall be the first day of the month following
the Service's Actual Startup Date. Billing for the interim period
between the Service's Actual Startup Date and the Anniversary Date
shall be the daily pro-rata amount times the number of days between
these two events plus the service's Actual Startup Date and shall be
based on the estimated costs provided to Customer before the Service's
order. This Interim Billing Period amount will be calculated and
included on a subsequent Customer invoice. The first invoice will be
generated shortly after the Service Order Date and is payable by
Customer prior to the Actual Startup date of the Service. It will
include: (i) estimated initial telco circuit installation fee; (ii)
Concentric Service setup fee; (iii) initial month's Concentric Service
fee (including any options selected by Customer on the Order Form);
(iv) initial month's estimated telco circuit lease; (v) any equipment
and/or software costs (if applicable). Subsequent monthly invoices
will be for the specified month of Service and are payable upon the
invoice due date. They will include subsequent month's Concentric
Service fees and estimated or actual telco circuit lease. Any prorated
fees incurred as part of the Interim Billing Period will be invoiced
to and payable by Customer. Based on the actual telco circuit
installation and monthly lease fees billed to Concentric by the telco,
Concentric will pass-through any additional telco fees to Customer in
the invoice following receipt of such telco's invoice. Concentric
reserves the right to change the billing intervals upon written notice
to Customer.
6.5 Late Payments. Invoices not paid by their due date shall be
subject to a 1.5% per month interest fee, or the maximum extent
allowed by applicable laws, whichever is less, on all past-due
balances. In the event Concentric incurs additional fees as a result
of any collection activity, such as collection agencies or legal fees,
Customer shall reimburse Concentric for all such fees.
6.6 Any upgrades of an existing Dedicated Access Service at a sub-
rate of T1 to T1 or other higher T1 sub-rate Service shall incur the
additional monthly Service fees seven (7) days after the upgrade
Service Order Date, but this upgrade shall not incur any Concentric
Service setup fees and the Anniversary Date shall become the first day
of the month following the upgrade's Actual Startup Date as defined
above with the new Interim Billing Period being calculated on a pro-
rata basis and added to the next invoice. Upgrades shall cause this
Agreement to automatically renew for a one (1) year term from the new
Anniversary Date.
6.7 All fees are in U.S. Dollars and are exclusive of any applicable
taxes. Customer shall pay, indemnify and hold Concentric harmless from
all sales, use, value added or other taxes of any nature, other than
taxes on Concentric's net income, including penalties and interest,
and all government permit or license fees assessed upon or with
respect to any fees (except to the extent Customer provides Concentric
with a valid tax exemption certificate). If any applicable law
requires Customer to withhold amounts from any payments to Concentric
hereunder: (a) Customer shall effect such withholding, remit such
26
amounts to the appropriate taxing authorities and promptly furnish
Concentric with tax receipts evidencing the payments of such amounts;
and (b) the sum payable by Customer upon which the deduction or
withholding is based shall be increased to the extent necessary to
ensure that, after such deduction or withholding, Concentric receives
and retains, free from liability for such deduction or withholding, a
net amount equal to the amount Concentric would have received and
retained in the absence of such required deduction or withholding.
7.0 REPRESENTATIONS AND WARRANTIES.
7.1 Each party represents and warrants that it has the right and
authority to enter into this Agreement, and that by entering into this
Agreement, it will not violate, conflict with or result in a material
default under any other contract, agreement, indenture, decree,
judgment, undertaking, conveyance, lien or encumbrance to which it is
a party or by which it or any of its property is or may become subject
or bound. Each party shall not grant any rights under any future
agreement, nor will it permit or suffer any lien, obligation or
encumbrances that will conflict with the full enjoyment of either
party of its rights under this Agreement.
7.2 Customer represents and warrants that it will, at its own expense
comply with all laws, regulations and other legal requirements that
apply to this Agreement, including copyright and communications
decency laws; advise Concentric of any legislation, rule, regulation
or other law which is in effect or which may come into effect after
the Effective Date and which affects the Customer's internal corporate
network, local area network(s) or intranet, or the use of the
Concentric RemoteLink/TM/ service in conjunction therewith, or
which has a material effect on any provision of this Agreement.
Customer will provide Concentric with the assurances and official
documents that Concentric periodically may request to verify
Customer's compliance with this Section.
7.3 Customer represents and warrants that no consent, approval or
authorization of or designation, declaration or filing with any
governmental authority is required in connection with the valid
execution, delivery and performance of this Agreement.
7.4 THE WARRANTY SET FORTH IN SECTION 7.1 IS THE SOLE AND EXCLUSIVE
WARRANTY MADE BY CONCENTRIC. CONCENTRIC MAKES NO OTHER WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONCENTRIC NETWORK,
CONCENTRIC REMOTELINK, CONCENTRICVIEW AND THE CITYFIND SOFTWARE OR ANY
RELATED NETWORK OR INTERNET SERVICES OR SOFTWARE. CONCENTRIC EXPRESSLY
DISCLAIMS ANY: (a) WARRANTY OF DESIGN, MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF
CONCENTRIC HAS BEEN INFORMED OF SUCH PURPOSE;
27
OR (b) WARRANTY THAT THE CONCENTRIC NETWORK, CONCENTRIC REMOTELINK,
CONCENTRICVIEW, AND THE CITYFIND SOFTWARE OR ANY RELATED NETWORK OR
INTERNET SERVICES OR SOFTWARE WILL BE ERROR-FREE, SECURE OR WITHOUT
INTERRUPTION AND ALL LIABILITY ON ACCOUNT THEREOF.
8.0 LIMITATION OF LIABILITY.
Except for a breach of Section 3.4, 9 or obligations arising under
11.5, in no event shall a party shall be liable for special,
incidental, consequential or punitive damages of any nature, for any
reason, including without limitation any termination of this
Agreement, whether such liability is asserted on the basis of
contract, tort (including negligence or strict liability) or
otherwise, even if a party has been warned of the possibility of such
damages, and notwithstanding any failure of essential purpose of any
limited remedy. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, CONCENTRIC'S ENTIRE LIABILITY TO CUSTOMER CONCERNING
PERFORMANCE OR NONPERFORMANCE BY CONCENTRIC OR IN ANY WAY RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER A
CLAIM IS BASED IN CONTRACT, NEGLIGENCE OR IN TORT, SHALL NOT EXCEED
THE AMOUNT RECEIVED BY CONCENTRIC FROM CUSTOMER DURING THE PREVIOUS
TWELVE (12) MONTHS.
9.0 CONFIDENTIAL INFORMATION
Each party agrees to maintain all Confidential Information in
confidence to the same extent that it protects its own similar
Confidential Information and to use such Confidential Information only
as permitted under this Agreement. For purposes of this Agreement
"Confidential Information" shall mean information including, without
limitation, computer programs, code, algorithms, names and expertise
of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other
technical, business, financial and product development plans,
forecasts, strategies and information marked "Confidential", or if
disclosed verbally, is identified as confidential at the time of
disclosure and reduced to a confidential writing within thirty (30)
days after such disclosure. Each party agrees to take all reasonable
precautions to prevent any unauthorized disclosure or use of
Confidential Information including, without limitations disclosing
Confidential Information only to its employees: (a) with a need to
know to further permitted uses of such information; (b) who are
parties to appropriate agreements sufficient to comply with this
Section 9; and (c) who are informed of the nondisclosure/ non-use
obligations imposed by this Section 9; and both parties shall take
appropriate steps to implement and enforce such non-disclosure/non-use
obligations. The foregoing restrictions on disclosure and use shall
survive for three (3) years following termination of this Agreement
but shall not apply with respect to any
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Confidential Information which: (i) was or becomes publicly known
through no fault of the receiving party; (ii) was rightfully known or
becomes rightfully known to the receiving party without confidential
or proprietary restriction from a source other than the disclosing
party; (iii) is independently developed by the receiving party without
the participation of individuals who have had access to the
Confidential Information; (iv) is approved by the disclosing party for
disclosure without restriction in a written document which is signed
by a duly authorized officer of such disclosing party; and (v) the
receiving party is legally compelled to disclose; provided, however,
that prior to any such compelled disclosure, the receiving party will:
(d) assert the privileged and confidential nature of the Confidential
Information against the third party seeking disclosure; and (e)
cooperate fully with the disclosing party in protecting against any
such disclosure and/or obtaining a protective order narrowing the
scope of such disclosure and/or use of the Confidential Information.
In the event that such protection against disclosure is not obtained,
the receiving party will be entitled to disclose the Confidential
Information, but only as, and to the extent, necessary to legally
comply with such compelled disclosure. Each of the parties hereto
agrees not to disclose to any third party the terms of this Agreement
without the prior written consent of the other party hereto, except to
advisors, investors and others on a need-to-know basis under
circumstances that reasonably ensure the confidentiality thereof, or
to the extent required by law.
10.0 TERM AND TERMINATION
10.1 The term of this Agreement shall commence on the Effective Date
and continue until the term elected by Customer as set forth in
Exhibit C. At the expiration of this initial term, this Agreement
shall automatically renew for a term of one (1) year subject to
Customer's acceptance of Concentric's then current Fees, unless notice
of non-renewal is sent by either party no less than ninety (90) days
before expiration of the term.
10.2 Concentric may terminate this Agreement upon written notice: (a)
for any material breach of this Agreement, which Customer fails to
cure within thirty (30) days following written notice by Concentric of
such breach; or (b) upon Customer's insolvency or liquidation as a
result of which Customer ceases to do business for a continuous period
of at least three (3) months. Customer may terminate this Agreement
upon written notice: (a) for any material breach of this Agreement
which Concentric fails to cure within thirty (30) days following
written notice by Customer of such breach; or (b) upon Concentric's
insolvency or liquidation as a result of which Concentric ceases to do
business for a continuous period of at least three (3) months.
10.3 Notwithstanding the expiration or termination of this Agreement,
or anything to the contrary set forth herein, all TCP/IP addresses
that are part of the Concentric Network remain the sole and exclusive
property of Concentric.
11.0 OTHER PROVISIONS
29
11.1 NON-ASSIGNMENT. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors
and assigns. Notwithstanding the above, this Agreement may not be
assigned in whole or in part by a party, without the written consent
of the other party, which shall not be unreasonably withheld. Any
assignment in violation of this paragraph shall be null and void.
11.2 INDEPENDENT CONTRACTORS. The parties shall have the status of
independent contractors, and nothing in this Agreement shall be deemed
to place the parties in the relationship of employer-employee,
principal-agent, or partners or in a joint venture.
11.3 NON-WAIVER. Failure of either party to enforce any of its rights
hereunder shall not be deemed to constitute a waiver of its future
enforcement of such rights or any other rights.
11.4 SEVERABILITY. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable under present or future laws, such
item shall be struck from the Agreement; however, such invalidity or
enforceability shall not affect the remaining provisions or conditions
of this Agreement. The parties shall remain legally bound by the
remaining terms of this Agreement, and shall strive to reform the
Agreement in a manner consistent with the original intent of the
parties.
11.5 CONTENT AND BREACH OF 3RD PARTY AGREEMENT INDEMNITY. Customer
agrees to indemnify, hold harmless and upon request, defend
Concentric, from and against any and all claims, liability, losses,
damages, expenses and costs (including attorneys' fees) arising out of
or in connection with: (a) information or content provided, accessed
or made available by Customer on the Concentric Network; and; (b) any
breach of any agreement for software, hardware or other products from
third parties provided by Concentric hereunder.
11.6 FORCE MAJEURE. Either party shall be excused from any delay or
failure in performance hereunder caused by reason of any occurrence or
contingency beyond its reasonable control, including but not limited
to, acts of God, earthquake, labor disputes and strikes, riots, war or
other unanticipated occurrences or problems, and governmental
requirements. The obligations and rights of the party so excused shall
be extended on a day-to-day basis for the period of time equal to that
of the underlying cause of the delay.
11.7 GOVERNING LAW. This Agreement shall be deemed to have been made
in the State of California, and the provisions and conditions of this
Agreement shall be governed by and interpreted in accordance with the
substantive laws of the State of California, without regard to
conflict of laws provisions.
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11.8 ARBITRATION. Any dispute or claim arising out of or in connection
with this Agreement or the performance, breach or termination thereof,
shall be finally settled by binding arbitration in San Jose,
California under the Rules of Arbitration of the American Arbitration
Association by an arbitrator appointed in accordance with those rules.
Judgment on the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. Notwithstanding the foregoing,
either party may apply to any court of competent jurisdiction for
equitable relief without breach of this arbitration provision.
11.9 INTEGRATION. This Agreement expresses the complete and final
understanding of the parties with respect to the subject matter
hereof, and supersedes all prior communications between the parties,
whether written or oral with respect to the subject matter hereof. No
modification of this Agreement shall be binding upon the parties
hereto, unless evidenced by a writing duly signed by authorized
representatives of the respective parties hereto.
11.10 NOTICES. Any required notices hereunder shall be given in
writing by certified mail or overnight express delivery service (such
as DHL) at the address of each party below, or to such other address
as either party may from time to time substitute by written notice.
Notice shall be deemed served when delivered or, if delivery is not
accomplished by reason or some fault of the addressee, when tendered.
If to Concentric: If to Customer:
RemoteLink Programs Manager
Concentric Network Corporation
00000 X. Xxxxxx Xxx.
Xxxxxxxxx, XX 00000
000 000 0000
AGREED AND ACCEPTED:
Concentric Network Corporation ("Concentric") ("Customer")
-------------------
By: By:
----------------------------- ----------------------------
(Authorized Signature) (Authorized Signature)
Name: Name:
---------------------------- --------------------------
31
Title: Title:
--------------------------- -------------------------
Date: Date:
--------------------------- -------------------------
32
IMPLEMENTATION PLAN
__________ ORDER DAF
__________ ORDER RADIUS SERVER & SOFTWARE
__________ IDENTIFY IP ADDRESS RANGE
__________ PROVIDE CITYFIND SOFTWARE
__________ DELIVER ONE DAY FIRST TIER TRAINING SESSION FOR CUSTOMER (IF CUSTOMER PERFORMING FIRST TIER SUPPORT
__________ CONFIGURE CONCENTRIC ROUTER INTERFACE
__________ CONFIGURE TUNNEL MANAGEMENT SERVER WITH CUSTOMER INFORMATION
__________ DELIVER END USER DOCUMENTATION
__________ SET UP CUSTOMER ACCESS TO FRONTLINE SUPPORT TOOL (IF CUSTOMER TO PERFORM FIRST TIER SUPPORT)
__________ INSTALL CONCENTRICVIEW
__________ TURN UP SERVICE, TEST CONNECTIONS
33
CUSTOMER SELECTIONS
THE CONTRACT TERM SELECTED IS:__________.
THE SUPPORT OPTION SELECTED IS:
SECOND TIER SUPPORT ONLY: ________________
FIRST TIER SUPPORT, 1 MINUTE ASA: ________________
FIRST TIER SUPPORT, 3 MINUTE ASA: ________________
FIRST TIER SUPPORT, __________ SHIFT SEATS, TO BE STAFFED DURING THE HOURS OF:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DAF CONNECTION TYPE DESIRED: _________________________
DAF ONE TIME CHARGES: _________________________
DAF MONTHLY CHARGES: _________________________
DAF INSTALLATION CHARGES: $3,000
ONE TIME OPTIONS DESIRED:
NT SERVER: _______ RADIUS SOFTWARE: ______
ROUTER: _______ CSU: ______
ON SITE INSTALL SUPPORT &
NETWORK MANAGEMENT TRAINING: _________________________
END USER TRAINING COURSE: _________________________
HELP DESK TRAINING COURSE: _________________________
34
INITIALS, CONCENTRIC:_________________ CUSTOMER:____________________
35
SPECIFICATIONS FOR RADIUS SERVER
RADIUS SERVER SOFTWARE, IF PROVIDED BY THE CUSTOMER, SHALL CONFORM TO THE
CURRENT IETF SPECIFICATION, XXX 0000.
36
EXHIBIT C
CNC TRADEMARK GUIDELINES
To Be Determined within 15 days
37
