Exhibit 10.17
U S WEST Contract: 9800051560
----------
USi Agreement Number: 008
---
IMAP AGREEMENT
USinternetworking, Inc. ("USi"), a Delaware corporation with its principal
office located at Xxx XXx Xxxxx, Xxxxxxxxx, XX 00000-0000 and U S WEST INC. AND
ITS AFFILIATES ( "Client"), a Delaware corporation with its principal office
located at 1800 CALIFORNIA, XXXXXX XX 00000 hereby agree that the following
terms and conditions will apply to each iMAP Solution provided under this iMAP
Agreement ("Agreement").
1. SCOPE OF SERVICE
1.1 SERVICES
USi will provide the services as defined in individual Product
Schedules which will be mutually agreed upon, attached hereto and
incorporated herein as Exhibit A. The Product Schedules may be modified
by mutual written agreement. Changes or additions to work performed
under each Product Schedule may require changes in the resources
provided by USi and may result in additional costs or charges in each
Product Schedule.
1.2 PRODUCT SCHEDULES
Each Product Schedule will become a part of this Agreement, and, unless
otherwise clearly specified in writing, the terms and conditions of
each Product Schedule shall be independent of and shall have no impact
upon, the provisions of any other Product Schedule.
1.3 ADDITIONAL SERVICES
Client may order additional iMAP Solutions or add on to existing iMAP
Solutions by contacting USi. USi will send Client a Product Schedule,
based on USi's formal requirements analysis and/or proposal for the
additional services, specifying the terms of the iMAP Solution,
including the payment(s) due for each ordered item. Client may accept
the terms of the iMAP Solution by signing that Product Schedule and
returning it to USi. All executed Product Schedules will become part of
this Agreement and will be covered by all of this Agreement's terms and
conditions.
2. DEFINITIONS
2.1 "ACCEPTABLE USE POLICY" shall mean USi's policy on the use of its
Global Network. The Acceptable Use Policy is incorporated by reference
as Exhibit B.
2.2 "ADDENDA" shall mean any written document executed by both parties
which modifies the terms of this Agreement or any executed Product
Schedule.
2.3 "AFFILIATES" shall mean any company controlling, controlled by or under
common control of Client.
2.4 "AGREEMENT" shall mean this iMAP Agreement, any and all Exhibits
attached hereto and all Product Schedules attached simultaneously with
the execution of the Agreement or agreed upon and executed subsequent
hereto.
2.5 "CONSULTING AND IMPLEMENTATION SERVICES" shall mean the services
provided by USi as part of the iMAP Solution and may be set forth in
the Product Schedule as applicable.
2.6 "CONTENT" means any and all text, multimedia or images (graphics, audio
and video), data and the like provided by Client and installed on a
server, which shall be subject to the terms and conditions set forth in
the Product Schedule and Acceptable Use Policy.
2.7 "CUSTOMIZATION" shall mean any customized deliverable created by USi as
part of the iMAP Solution.
2.8 "DOCUMENTATION" shall mean the Software Application user manual(s) and
any other materials supplied by USi concurrently with the delivery of
and for use with the iMAP Solution.
2.9 "GLOBAL NETWORK" shall mean USi's Internet-based data center and
network.
2.10 "HARDWARE" shall mean any computing or networking equipment USi uses
and/or provides to Client for its use as part of the iMAP Solution.
2.11 "iMAP SOLUTION" shall mean the collective bundling of any and all
Consulting and Implementation Services, Customization, access to the
Global Network, Hardware and Software Application(s), as outlined in
each executed Product Schedule.
----------------------
[CONFIDENTIAL TREATMENT] means that certain confidential information has
been deleted from this document and filed separately with the Securities
and Exchange Commission.
2.12 "PRODUCT SCHEDULE" shall mean a written order for any iMAP Solution
accepted by USi and executed by both parties, which shall be subject to
the terms and conditions of this Agreement and which, at a minimum,
shall contain a description of the work to be undertaken and the
obligations and responsibilities of each party related to that Product
Schedule.
2.13 "SLA" shall mean the Service Level Agreement specified in each Product
Schedule.
2.14 "SOFTWARE APPLICATION" shall mean the Third Party computer software USi
provides to Client for its use as part of the iMAP Solution.
2.15 "THIRD PARTY" shall mean any natural person or legal entity other than
USi and Client.
2.16 "USi SOFTWARE" shall mean certain software which was developed by USi
independently of this Agreement or pursuant to the terms of this
Agreement as may be required for customization.
3. LICENSE
3.1 RIGHTS GRANTED
In accordance with the terms of this Agreement, USi grants to Client a
limited, nontransferable, non-exclusive license to use the iMAP
Solution included in the executed Product Schedules attached hereto for
the sole purpose of supporting the operations of Client's business as
described in the Product Schedule. Notwithstanding anything to the
contrary, Client may not use the iMAP Solution in a resale capacity, to
process and/or analyze the data of a Third Party as a service bureau or
on any Hardware other than as set forth in the relevant Product
Schedule.
3.2 OWNERSHIP
All components of the iMAP Solution provided to Client shall remain at
all times the property of USi and/or its Third Party Software
Application vendors and contain trade secrets and other valuable
proprietary information of USi and/or its Third Party vendor.
3.3 EFFECTIVE DATE
This Agreement shall be effective on the date it is executed by USi,
and shall remain in effect for the Term unless terminated in accordance
with the provisions set forth in this Agreement.
3.4 SOFTWARE
Client acknowledges and understands that USi may provide to Client (a)
USi Software and/or (b) Software Applications owned by Third Parties
which USi uses under license agreements from Third Parties defined in
Section 2.14 as "Software Application." Client acknowledges that (a)
title to all such USi Software and
Page 1
Proprietary & Confidential
Software Application remains with and is subject to the proprietary
rights of USi or its Third Party vendor, and (b) such USi Software and
Software Application contain trade secrets and other valuable
proprietary information of USi or its Third Party vendor.
3.5 RESTRICTIONS
Client agrees it shall not: (a) alter or modify the USi or Software
Application or any part thereof; (b) copy or duplicate, or permit a
Third Party to copy or duplicate, the USi Software or Software
Application or any part thereof or (c) reverse engineer, decompile or
disassemble USi Software or Software Application, unless otherwise
provided in the relevant Product Schedule.
3.6 NON-TRANSFERABLE
Client agrees not to license, sell, transfer, lease or disclose the USi
Software or Software Application to any Third Party.
4. TERM
4.1 AGREEMENT TERM
The term of this Agreement (the "Term") shall commence on the Effective
Date and shall expire three (3) years thereafter unless (a) either
terminated pursuant to the terms of this Agreement or (b) extended by
mutual written agreement.
4.2 PRODUCT SCHEDULE
Each individual Product Schedule shall include a period of performance.
In the event that any Product Schedule period of performance extends
beyond the Term, the Term shall automatically be extended and remain in
effect until such time as the Product Schedule period of performance is
completed.
5. PAYMENTS
5.1 FEES
As compensation for the license of the iMAP Solution granted to Client
and the provisions of services as applicable, Client agrees to pay the
amount(s) specified in each executed Product Schedule. Any fee
specified in a Product Schedule will only remain in effect until the
date specified in the Product Schedule.
5.2 PAYMENT TERMS
Unless otherwise specified in the Product Schedule, payments will be
due and payable to USi within forty-five (45) days of the date of USi's
invoice. Such invoices will be generated in accordance with the terms
specified in each Product Schedule. USi reserves the right, in USi's
absolute discretion, to perform a credit check on Client.
5.3 TAXES
Client shall be responsible for the payment of all taxes associated
with this Agreement or its use of the iMAP Solution (other than taxes
based on USi's net income), including, but not limited to, personal
property taxes, import taxes, taxes on telecommunication services,
information services, data processing services or similar governmental
charges that may be assessed by any jurisdiction, whether based on
gross revenue or delivery of products or services. If USi is required
to pay any such taxes directly, Client shall, upon receipt of USi's
invoice, reimburse USi for any amount that USi has paid.
Notwithstanding the above, Client shall not be required to pay those
taxes from which Client is legally exempt.
5.4 INSURANCE
Client shall obtain and maintain adequate liability insurance and
insurance against loss or damage to USi's Hardware located on Client's
premises. Upon request, Client shall furnish to USi a Certificate of
Insurance or other evidence of insurance coverage.
5.5 INTEREST
Any payments not made when due will be subject to an interest charge of
one percent (1%) per month, unless applicable law specifies a lower
lawful rate of interest, in which case past due payments shall bear
interest at that lower maximum rate. Interest shall not be applied to
any invoice during which time such invoice is being disputed by Client.
6. WARRANTIES
6.1 PERFORMANCE WARRANTY
USi warrants that: (a) work performed to complete any Product Schedule
will be performed by qualified personnel in a professional, workmanlike
manner, consistent with the prevailing standards of the industry; and
(b) it will use commercially reasonable efforts to complete each
Product Schedule.
6.2 AUTHORITY WARRANTY
USi warrants that it has the authority to license the Software
Application(s) for the purposes set forth in this Agreement and the
Product Schedule. Client acknowledges and agrees that its sole and
exclusive remedies for breach of this warranty are set forth in Section
8.1 of this Agreement.
6.3 LIMITATION
Unless otherwise expressly provided herein or in a Product Schedule,
neither USi nor any of its service providers, licensors, employees or
agents warrant (a) that the functions contained in the iMAP Solution
provided hereunder will meet Client's requirements or (b) that the
operation of the iMAP Solution will be uninterrupted or error free or
(c) that the products or services will have the capacity to meet the
demand during specific hours. USi will not be liable for any damages
that Client may suffer arising out of use, or inability to use, the
products or services provided hereunder. USi will not be liable for
unauthorized access to or alteration, theft or destruction of Client's
data files, programs, procedures or information through accident,
fraudulent means or devices, or any other method, unless such access,
alteration, theft or destruction is caused as a result of USi's gross
negligence or intentional misconduct.
6.4 YEAR 2000 WARRANTY
USi warrants that its iMAP Solutions, as provided by USi are capable of
processing, recording, storing and presenting data containing
four-digit years after December 31, 1999 in substantially the same
manner and with substantially the same functionality as before January
1, 2000. USi assumes no responsibilities or obligations to cause Third
Party products or services to function with the iMAP Solutions. USi
will not be in breach of this warranty for any failure of the iMAP
Solutions to correctly create or process date-related data if such
failure results from the inability of any software, hardware, or
systems of Client or any Third Party either to correctly create or
process date-related data in a manner consistent with the method in
which the iMAP Solution creates or processes date-related data. In the
event of a breach of this warranty, Client's sole and exclusive remedy
and USi's sole liability shall be to use its commercially reasonable
efforts to correct errors that cause breach of this warranty or if USi
is unable to make the corrections within a reasonable period of time
considering the severity of the error and its impact on the Client as
determined by USi, Client shall be entitled to terminate this Agreement
pursuant to Section 10.1.
6.5 EXCLUSION
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES
AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
Page 2
Proprietary & Confidential
7. CLIENT CARE
7.1 CLIENT ASSISTANCE CENTER
Under the Client Care program, USi will provide a level of service
concerning Client's iMAP Solution as outlined in each specific Product
Schedule. In all cases, Client will have availability to USi's Client
Assistance Center twenty-four (24) hours per day, seven (7) days per
week, three hundred sixty-five (365) days per year. Client acknowledges
and agrees that all calls into the Client Assistance Center are public
and may be monitored and/or recorded for quality control purposes.
7.2 SERVICE LEVEL AGREEMENTS
USi will provide a Service Level Agreement with each iMAP Solution
which will be stated in each executed Product Schedule. Specific
remedies for USi's failure to meet the applicable Service Level
Agreement will be stated in each executed Product Schedule.
7.3 MAINTENANCE WINDOW
USi has established set maintenance windows on Tuesday and Friday
mornings between the hours of 2am and 6am (ET). During this time, USi
reserves the right to take down a Client's server(s) in order to
conduct routine maintenance checks to both software and hardware. If a
Client's server(s) will be down for more than two (2) minutes within
this pre-established window, USi will advise Client of such prior to
any scheduled maintenance downtime. USi will not be responsible for any
damages or costs incurred by Client, if any, for scheduled down time.
USi reserves the right to change its maintenance window upon prior
notice to Client.
8. INDEMNITY OBLIGATIONS
8.1 USi INDEMNITY OBLIGATIONS
USi will (a) defend Client against any final claim that the products or
services delivered by USi infringe a patent, copyright, trade secret,
or other proprietary right in the United States; and (b) pay costs,
damages and attorney's fees finally awarded against Client as a result
of such claims.
(a) Infringement Remedies. In addition to defending Client as
stated above, if a claim occurs, or in USi's opinion, is
likely to occur, USi will, at its sole option and expense,
(subject to its agreement with Software Application vendors)
either (i) procure Client the right to continue using the
Software Application in question, or (ii) replace or modify
the infringing Software Application so that it becomes
noninfringing; provided that the Software Application's
functionality are not materially and adversely affected by
such replacement or modification. If neither of these
alternatives is reasonably available, Client shall return the
Software Application at issue and USi will refund the amount
paid by Client to USi for such Software Application as
depreciated. The depreciation shall be an equal amount per
year over a three (3) year life commencing with the date of
installation.
(b) Exclusions. USi shall not be liable for infringement claims
based on (i) the combination, operation or use of Software
Application with hardware, data or software not supplied by
USi if the claim would have been avoided by use of other
hardware, data or software; or (ii) modifications to Software
Application if the modifications were not made by USi.
8.2 CLIENT INDEMNITY OBLIGATIONS
Client will (a) defend USi against any claims by Third Parties arising
from Client's use of Software Application or iMAP Solution provided by
USi hereunder excluding, however, (i) proprietary rights infringement
claims under Section 8.1; and (ii) claims for bodily injury or damages
to tangible personal property proximately caused by the negligent act,
error or omission of USi and (b) pay costs, damages and attorney's fees
finally awarded against USi and any settlement costs incurred as a
result of such claims.
8.3 CONDITIONS
The indemnification obligations set forth above in Sections 8.1 and 8.2
are contingent upon compliance with the following conditions by the
party seeking indemnification:
(a) Providing prompt written notice of a claim within twenty (20)
days of its service upon Client;
(b) Providing all information
and evidence within its control which is necessary for the
indemnifying party to conduct a defense; and
(c) Providing the indemnifying party with sole control of the
defense and all related settlement negotiations. However, the
non-indemnifying party may participate in the defense or
settlement of the claim at its own expense.
8.4 LIMITATIONS OF REMEDY
This Section 8 states the entire obligations of the parties with
respect to indemnity or infringement of copyrights, patents, trade
secrets or other intellectual property or proprietary rights.
9. LIMITATION OF LIABILITY
9.1 LIMITATION OF LIABILITY
USi's entire liability and Client's exclusive remedies are set forth in
this Section 9, Section 6 WARRANTIES, Section 8 INDEMNITY OBLIGATIONS
and Section 10 TERMINATION. USi's liability to Client for damages other
than those set forth in Section 6, Section 8 or Section 10 (regardless
of the form of action, whether in contract, tort, warranty or
otherwise) shall in no event exceed the monthly fee paid by the Client
to USi under this Agreement for the one (1) month period immediately
preceding the event which caused the damage or injury.
9.2 DISCLAIMER OF DAMAGES
USi shall not be liable for any special, incidental, indirect or
consequential damages or for the loss of profit, revenue, or data, even
if USi shall have been advised of the possibility of such potential
loss or damages. Client further agrees that USi shall not be liable for
any claim or demand against Client or USi by any Third Party, except to
the extent expressly covered under Section 8 INDEMNITY OBLIGATIONS or
Section 9 LIMITATION OF LIABILITY.
10. TERMINATION
10.1 TERMINATION FOR BREACH
Either party may terminate this Agreement immediately upon written
notice to the other party if the other party materially breaches any
obligation under this Agreement and fails to cure such breach within
thirty (30) days after receiving notice of the breach. Unless otherwise
agreed in writing, termination of this Agreement shall also
automatically terminate all Product Schedules which are incomplete at
the time of termination. Termination of one Product Schedule shall have
no effect on any other Product Schedule or the Agreement so long as the
party in default of the Product Schedule being terminated complies with
the terms and conditions of the Agreement and other Product Schedules.
Notwithstanding anything to the contrary, either party shall have the
right to terminate this Agreement and the license granted herein in the
event either party (a) terminates or suspends its business, (b) becomes
subject to any bankruptcy or insolvency proceeding under Federal or
state statute, (c) becomes insolvent or becomes subject to direct
control by a trustee, receiver or similar authority, or (d) has wound
up or liquidated, voluntarily or otherwise. In the event of termination
by reason of either party's failure to comply with any part of this
Agreement, or upon any act
Page 3
Proprietary & Confidential
which shall give rise to the right to terminate, USi shall have the
right, at any time, to terminate the license and take immediate
possession of the iMAP Solutions and all copies wherever located, with
thirty (30) days written notice. Within ten (10) days after termination
of the license, Client shall return to USi all tangible portions of the
iMAP Solutions, including any Hardware provided by USi and any Software
in the form provided by USi or as modified, or, upon request by USi,
destroy all tangible portions of the iMAP Solutions and all copies, and
certify in writing that they have been destroyed. Termination of this
Agreement shall not relieve either party of its obligations regarding
confidentiality under Section 12 below. Lastly, no cure period shall be
afforded in an event of a breach of Sections 3 or 12.1, for which
either party shall be entitled to all legal and equitable remedies,
including but not limited to, injunctive relief, without requirement of
bond.
10.2 EFFECT OF TERMINATION
Termination of this Agreement for any reason shall not affect any past
or future sums due USi under this Agreement or any additional remedies
provided by law or equity to either party. All rights that have been
granted to Client shall immediately be terminated and all unpaid
charges accrued under this Agreement shall become immediately due and
payable upon the happening of any event of termination. In the event of
a termination of this Agreement or any Product Schedule for default,
each party agrees to return to the other within sixty (60) days of a
request, any property, data sheets, schematics, samples, customer
lists, confidential information, in whatever form or media which are
used by a disclosing party or which are furnished to a recipient.
11. SOFTWARE AND WORK PRODUCT DEVELOLPED UNDER AGREEMENT
11.1 TITLE
Except as otherwise provided for in Section 11.2 below or as may be
expressly agreed in any Product Schedule, USi shall retain title to and
ownership of any Hardware provided by USi, any software developed under
any Product Schedule issued hereunder ("Project Software") and any
other products of its work hereunder which may consist of reports,
designs, data or similar materials ("Work Product"); provided, however,
that USi will not have ownership of Content (as defined in Section 2.6
above) incorporated into Project Software or Work Product. To the
extent that Project Software contains any USi Software or Software
Application(s), such Project Software is subject to restrictions as may
be applicable to the USi Software or Software Application(s) which is
incorporated therein.
11.2 CLIENT OWNERSHIP
Client shall retain title to and all ownership rights in Content (as
defined in Section 2.6 above) but grants USi the right to access and
use Content for the purpose of complying with its obligations under
this Agreement and any applicable Product Schedule.
12. GENERAL PROVISIONS
12.1 NONDISCLOSURE
Each party shall retain in confidence all proprietary information
transmitted to the other that the disclosing party has identified in
writing, or orally and then subsequently identified in writing, as
being proprietary and/or confidential, and will make no use of such
information except under the terms and during the term of this
Agreement. Client agrees to use all reasonable precautions and take all
necessary steps to prevent the iMAP Solution from being acquired by
unauthorized persons, and to take appropriate action, by instruction,
agreement, or otherwise, with regard to all persons permitted access to
the iMAP Solution, in order to ensure the iMAP Solution is protected.
Client shall not disclose the iMAP Solution to any person for any
purpose other than as provided in this Agreement. However, neither
party shall have an obligation to maintain the confidentiality of
information that (a) it has rightfully received from another party
prior to its receipt from the disclosing party; (b) the disclosing
party has disclosed to a Third Party without any obligation to maintain
such information in confidence, (c) enters the public domain or becomes
generally known to the public by some action other than breach of this
Agreement by the receiving party; or (d) is independently developed by
the receiving party. Each party shall safeguard proprietary and
confidential information disclosed by the other using the same degree
of care it uses to safeguard its own proprietary and confidential
information but, in no event, shall use less than a reasonable degree
of care. Each party's obligation under this paragraph shall extend for
a period of three (3) years following termination or expiration of this
Agreement.
12.2 ASSIGNMENT
Neither this Agreement nor any rights granted hereunder may be sold,
leased, assigned or otherwise transferred, in whole or in part by
either party by operation of law or otherwise, and any such attempted
assignment shall be void and of no effect without the advance written
consent of the other party, such consent not to be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that such consent shall not be
required if either party assigns this Agreement to a wholly owned
subsidiary or in connection with a merger, acquisition, or sale of all
or substantially all of its assets, unless the surviving entity is a
competitor of USi.
12.3 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado, without regard to conflicts of law.
The parties to this Agreement consent to the exclusive jurisdiction and
venue of the state and federal courts sitting in or for Denver County,
Colorado.
12.4 DISPUTE RESOLUTION AND ARBITRATION
In the event that any dispute or disagreement between the parties with
respect to the interpretation of any provision of this Agreement, the
performance of either party under this Agreement, or any other matter
that is in dispute between the parties related to this Agreement, upon
the written request of either party, the parties will meet for the
purpose of resolving such dispute. The parties agree to discuss the
problem and negotiate in good faith without the necessity of any formal
proceedings related thereto. No formal proceedings for the resolution
of such dispute may be commenced until either party concludes in good
faith that the applicable resolution through continued negotiation of
the matter in issue does not appear likely. The parties further agree
that all disputes hereunder which cannot be settled in the manner
hereinbefore described (any such dispute is referred to here as a
"Dispute") will be settled by final and binding arbitration conducted
in accordance with the American Arbitration Association ("AAA") (or any
successor thereto), as amended from time to time. The Federal
Arbitration Act, 9 U.S.C. Secs. 1-16, shall govern the arbitrability of
all Disputes. Judgment upon the award rendered in any such arbitration
may be entered in any court having jurisdiction thereof, or application
may be made to such court for a judicial acceptance of the award and an
enforcement, as the law of such jurisdiction may require or allow. The
arbitrator shall not have authority to award punitive damages. All
expedited procedures prescribed by the AAA rules shall apply. The
arbitrator's decision and award shall be final and binding and judgment
may be entered in any court having jurisdiction thereof. Each party
shall bear its own costs and attorneys' fees, and shall share equally
in the fees and expenses of the arbitrator but the arbitrator shall
have the discretion to award costs and attorney's fees in his
discretion.
The arbitration panel will be composed of one single arbitrator engaged
in the practice of law, under the then current rules of the AAA. No
person may be appointed as an arbitrator unless he or she is
independent of the Applicant and Respondent, is skilled in the subject
matter of the Dispute and is not directly or indirectly carrying on or
involved in a business being carried on in competition with the
business of the parties. The decision of the arbitration panel shall be
made by the sole arbitrator. The venue for the arbitration shall be in
Washington, DC unless otherwise agreed to by the parties in writing.
Page 4
Proprietary & Confidential
12.5 WAIVER
No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any other breach of the same or any other
provision of the Agreement, and no waiver shall be effective unless
made in writing.
12.6 SEVERABILITY
In the event that any term or provision of this Agreement conflicts
with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the
parties to this Agreement, such provision shall be restated to reflect,
as nearly as possible, the original intentions of the parties in
accordance with applicable law, and the remainder of this Agreement
shall remain in full force and effect.
12.7 ENFORCEMENT
Both parties agree to pay all reasonable costs and expenses the other
party incurs in successfully enforcing this Agreement, including
reasonable attorneys' fees.
12.8 FORCE MAJEURE
Neither party shall be liable for any delay or failure in performance
due to Force Majeure, which shall mean acts of God, earthquake, labor
disputes, changes in law, regulation or government policy, riots, war,
fire, epidemics, acts or omissions of vendors or suppliers,
transportation difficulties or other occurrences which are beyond
either party's reasonable control. In the event that USi is prevented
or delayed in the delivery or installation of the iMAP Solution for
reasons beyond its control, such delivery or installation shall take
place as soon thereafter as is reasonably possible.
12.9 NOTICE
Any notice or invoice required or permitted under this Agreement shall
be in writing and delivered by hand or mailed by overnight express
charges prepaid or certified mail with return receipt requested to the
address set forth above.
Notices or invoices shall be deemed received when delivered.
12.10 HIRING
Client and USi agree that during the term of this Agreement and for one
(1) year thereafter, they will not, without prior written consent of
the other, employ or offer employment to any employee of the other who
has worked to a material extent on matters relating to this Agreement
or the provision of USi services by USi hereunder.
12.11 SURVIVAL
The terms of Sections 3, 4, 5, 8, 9, 11 and 12 shall survive the
termination or expiration of this Agreement.
12.12 ACCEPTABLE USE POLICY
Client agrees at all times, and to require and enforce its employees,
agents and contractors at all times, to comply with the USi Acceptable
Use Policy, which is included as Exhibit B to this Agreement. Client
agrees to indemnify and hold USi harmless from any damages, costs and
expenses incurred by USi caused by the breach of this provision.
12.13 THIRD PARTY RIGHTS
The provisions of this Agreement are solely for the benefit of the
parties hereto and not for the benefit of any Third Parties.
12.14 ENTIRE AGREEMENT
This Agreement (including all Product Schedules and Addenda, if any)
contains the full understanding between the parties and supercedes all
prior representations or agreements, whether oral or written, with
respect to such matters. The Agreement (including all Product Schedules
and Addenda, if any) may only be changed by a written document signed
by both parties. To the extent of any inconsistencies between the
Agreement and the Product Schedule, the Product Schedule shall control,
except if the Agreement is modified by Addenda, then the Addenda shall
control.
USinternetworking, INC. U S WEST INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx, U S WEST
Business Resources, Inc.,
acting as agent for U S
WEST Inc.
Title: Vice President and General Counsel Title: Supplier Manager
Date: JANUARY 15, 1999 Date: JANUARY 15, 1999
--------------------------------- -------------------------
Page 5
Proprietary & Confidential
U S WEST Contract: 9800051560
----------
USi Agreement Number: 008
---
Effective Date: JANUARY 15, 1999
-----------------
EXHIBIT A
PRODUCT SCHEDULE
This Product Schedule by and between U S WEST BUSINESS RESOURCES, INC.
("Client") and USinternetworking, Inc. ("USi") is governed by and incorporated
into the terms and conditions contained in the iMAP Agreement entered into
between USi and U S WEST INC. dated January 15, 1999. USi's Proposal to Client
dated OCTOBER 28, 1998 AND REVISED ON DECEMBER 22, 1998 (the "Proposal") is
attached as Exhibit A to this Product Schedule, although only those Sections of
the Proposal specifically referenced below shall be incorporated into the terms
and conditions of this Product Schedule.
iMAP SOLUTION: USi ENTERPRISE SALES APPLICATION POWERED BY SIEBEL
FOR UP TO [CONFIDENTIAL TREATMENT] USERS as detailed
in Section 3 of the Proposal.
For the purposes of this Product Schedule, "Users"
shall mean the name or specified (by password or
other user identification) individuals authorized by
Client to use the iMAP Solution, regardless of
whether the individual is actively using the iMAP
Solution at any given time.
PAYMENT SCHEDULE: $4,121,250 payable in thirty-six (36) monthly
installments as outlined in the table below
commencing upon Client's acceptance. Invoices shall
be issued on the 5th of the month following the
calendar month of service. All invoices are due upon
receipt. This pricing is also valid for the Initial
Period and the 1st Renewal Period (both as defined
below) and is exclusive of any applicable taxes,
tariffs, telecommunications surcharges or other
governmental fees or charges that may be imposed from
time to time by applicable law or regulation.
---------------------------- ----------------- ---------------------------
CALENDAR MONTH OF SERVICE TOTAL # OF USERS MONTHLY INSTALLMENT AMOUNT
---------------------------- ----------------- ---------------------------
1st to 3rd [CONFIDENTIAL [CONFIDENTIAL TREATMENT]
TREATMENT]
---------------------------- ----------------- ---------------------------
4th [CONFIDENTIAL [CONFIDENTIAL TREATMENT]
TREATMENT]
---------------------------- ----------------- ---------------------------
5th to 36th [CONFIDENTIAL [CONFIDENTIAL TREATMENT]
TREATMENT]
---------------------------- ----------------- ---------------------------
37th to 60th [CONFIDENTIAL [CONFIDENTIAL TREATMENT]
TREATMENT]
---------------------------- ----------------- ---------------------------
ADDITIONAL USERS: During the Initial Period and the 1st Renewal
Period (both as defined below), Client may add
additional Users, above the initial 1,000 Users, to
the iMAP Solution by executing an applicable Addenda
to this Product Schedule. Upon exercise of this
upgrade, the monthly installment fee will increase
based on the table below for each additional User for
the remaining term of the Initial Period and the 1st
Renewal Period commencing on the day the additional
User(s) is specified by Client.
------------------------ ---------------------------------
USER NUMBERS ADDITIONAL MONTHLY INSTALLMENT
AMOUNT PER USER
------------------------ ---------------------------------
1,001 to 1,500 $[CONFIDENTIAL TREATMENT]
------------------------ ---------------------------------
1,501 to 2,000 $[CONFIDENTIAL TREATMENT]
------------------------ ---------------------------------
2,001 to 3,000 $[CONFIDENTIAL TREATMENT]
------------------------ ---------------------------------
3,001 & above $[CONFIDENTIAL TREATMENT]
------------------------ ---------------------------------
EFFECTIVE DATE OF PRODUCT SCHEDULE: The Effective Date of this Product
Schedule shall be January 15, 1999.
CLIENT ACCEPTANCE: Acceptance shall occur upon the completion of the
User Acceptance Test, which will be mutually
developed between Client and USi during the initial
implementation phase. Notwithstanding anything to the
contrary, Client's use of all or a part of the iMAP
Solution in the operation of Client's business shall
be considered Acceptance.
PERIOD OF PERFORMANCE: The Period of Performance of this Product Schedule
shall commence on the Effective Date and shall
continue for a period of thirty-six (36) months plus
the interim time period between the Effective Date
and the date of Acceptance (the "Initial Period").
Thereafter, this Product Schedule shall automatically
renew for a twenty-four (24) month period (the "1st
Renewal Period") based on the pricing shown above for
[CONFIDENTIAL TREATMENT] Users.
After the 1st Renewal Period, this Product Schedule
shall renew upon mutual agreement for successive
twelve (12) month periods (the "Subsequent Renewal
Period") on the same terms and conditions as herein
agreed, as may be amended from time to time,
including, but not limited to, monthly payments as
described below, unless and until either party
provides the other party with a notice of termination
thirty (30) days prior to the end of the Initial
Period, the 1st Renewal Period or any annual
Subsequent Renewal Period.
PRICE CHANGES: USi will notify Client sixty (60) days prior to any
Subsequent Renewal Period of any price changes which
will become effective upon such Subsequent Renewal
Period.
Page 1 January 15, 1999
Confidential. Disclose and distribute solely to those individuals who have a
need to know.
CLIENT CARE: Under the Client Care program, Client's Help Desk
will have availability to (a) USi's Client Assistance
Center twenty-four (24) hours per day, seven (7) days
per week, three hundred sixty-five (365) days per
year and (b) the assigned Client Assistance Team
during Client's designated standard business hours.
CONSULTING & IMPLEMENTATION SERVICES: USi will provide Consulting &
Implementation Services as outlined in
Section 3 of the Proposal., which will
require the approval of the U S WEST
project manager prior to implementation.
SECURITY PROCEDURES: USi has defined certain policies and procedures to
provide the level of security associated with the iMAP
Solution as set forth in Section 3 of the Proposal.
These policies and procedures will change over time to
reflect emerging technologies, business practices and
Internet-related issues. USi will provide written notice
to Client of any changes made to its security
procedures.
TERMINATION CLAUSE: Notwithstanding anything to the contrary contained
herein, commencing thirty-six (36) months after
Client's Acceptance as noted above, Client may cancel
this Product Schedule for any reason at the time frames
stated in the chart below by providing USi with
ninety (90) days written notice. Client agrees to pay
USi a termination fee based on the chart below upon
exercising its rights under this Termination Clause.
--------------------------------- ------------------------
CALENDAR MONTH OF TERMINATION TERMINATION FEE
--------------------------------- ------------------------
37th to 42nd $[CONFIDENTIAL TREATMENT]
--------------------------------- ------------------------
43rd to 48th $[CONFIDENTIAL TREATMENT]
--------------------------------- ------------------------
49th to 54th $[CONFIDENTIAL TREATMENT]
--------------------------------- ------------------------
55th to 57th $[CONFIDENTIAL TREATMENT]
--------------------------------- ------------------------
SERVICE LEVEL AGREEMENT:
USi's will provide for [CONFIDENTIAL TREATMENT] Availability for Services (as
herein defined) within USi's direct control where "Availability" refers to a
Users ability to access the application on the appropriate USi hosted server.
Services include network services to the ISP circuit termination point on the
Cisco router in the data facility, all network hardware, firewalls or other
security services provided in the iMAP Solution.
REMEDY:
In the event USi is unable to provide:
1. [CONFIDENTIAL TREATMENT] Availability in any given calendar month, Client
shall receive a credit to their account equal to [CONFIDENTIAL TREATMENT]
of that month's service fees excluding rebilled circuit charges.
2. [CONFIDENTIAL TREATMENT] Availability in any given calendar month, Client
shall receive a credit to their account equal to [CONFIDENTIAL TREATMENT]
of that month's service fees excluding rebilled circuit charges.
3. [CONFIDENTIAL TREATMENT] Availability in any given calendar month, Client
shall receive a credit to their account equal to [CONFIDENTIAL TREATMENT]
of that month's service fees, excluding rebilled circuit charges.
If USi fails to meet [CONFIDENTIAL TREATMENT] Availability for
[CONFIDENTIAL TREATMENT] consecutive calendar months, Client may terminate
this Product Schedule without penalty, regardless of any term remaining on
the Agreement, without liability to either party for penalties or damages
associated with such termination and upon thirty (30) days prior written
notice to USi.
"Availability" percentage shall be calculated as follows:
X = [CONFIDENTIAL TREATMENT] * 100
---------------------------------------------
N
where "n" is the total number of hours in any given calendar month, and "x" is
the Availability percentage.
Specifically excluded from "n" in this calculation and exceptions to the levels
of Availability provided herein are (a) scheduled maintenance windows; (b)
reasons of Force Majeure (as defined in Section 12.8 of the Agreement); (c)
issues associated with Client's personal computers, local area networks or
Internet Service Provider connections; (d) use of unapproved or modified
Hardware or Software and/or; (e) issues arising from the misuse of the iMAP
Solution by Client, its employees, agents, customers or contractors.
In the event of a Force Majeure event, the Client shall have the option of
canceling this Product Schedule with USi if the resulting total outage time
is greater than [CONFIDENTIAL TREATMENT] consecutive days in any
[CONFIDENTIAL TREATMENT] month period, without liability to either party for
penalties or damages associated with such outages or termination and upon
thirty (30) days prior written notice to USi.
The remedies stated in this Section are Client's sole and exclusive remedies for
service interruption.
Page 2 January 15, 1999
Confidential. Disclose and distribute solely to those individuals who have a
need to know.
NON-RENEWAL: Should Client elect not to renew this Product Schedule at the
end of either the Initial Period or any subsequent Renewal
Period, USi will deliver to Client (i) all data contained on
the Hardware used for the Client's iMAP Solution; (ii)
Client's Content; and (iii) all Consulting & Implementation
Services specifically created or performed for Client by USi
in support of the iMAP Solution (clause (iii) specifically
referred to as "C&I Work Product"). USi will deliver these
items to Client for no additional charge on a mutually
agreeable date and in a mutually agreeable format.
Upon non-renewal by Client, Client agrees: (i) that the C&I
Work Product shall no longer be supported by USi; and (ii)
that the C&I Work Product may only be used for the sole
purpose of supporting the operations of Client's business.
Notwithstanding anything to the contrary stated herein, USi
maintains all rights, title and interest in the C&I Work
Product and Client may not use the C&I Work Product in a
resale capacity or allow access to the C&I Work Product by any
Third Parties.
USi reserves all rights to use the C&I Work Product in
whatever manner it chooses, including support of iMAP
Solutions for other USi clients. In addition, USi retains all
rights to the web site addresses established by USi in support
of the Client's iMAP Solution.
CLIENT RESPONSIBILITIES: This section describes Client's additional
responsibilities under this Agreement.
1. Client will designate qualified personnel to act as liaisons between
Client and USi.
2. Client will adhere to and will require any Third Party having access to the
iMAP Solution to adhere to USi's Acceptable Use Policy as set forth at the
following URL: xxxx://xxx.xxx.xxx/xxxxxxxxx.
3. Client is responsible for obtaining and complying with license terms for
all Client-provided software, if any, and represents to USi that the terms
of such licenses shall allow use of the software on the Hardware, as well
as the implementation by USi of the iMAP Solution as proposed.
4. Client is solely responsible for Content, including any subsequent changes
or updates made or authorized by Client. Client represents and warrants
that Content: (a) will not infringe or violate the rights of any third
party including, but not limited to, intellectual property, privacy or
publicity rights of others; (b) is not abusive, profane or offensive to a
reasonable person; or (c) will not be hateful or threatening. Violations of
the foregoing by Client may result in early termination of services by USi.
5. Client is solely responsible for the Contents of its transmissions and the
transmissions of Third Parties accessing the iMAP Solution through Client.
Client agrees to comply with U.S. law with regard to the transmission of
technical data which is exported from the United States through the iMAP
Solution. Client further agrees not to use the iMAP Solution (a) for
illegal purposes or (b) to interfere with or disrupt other network users,
network services or network equipment. Interference or disruptions include,
but are not limited to, distribution of unsolicited advertising or chain
letters, propagation of computer worms and viruses, and use of the network
to make unauthorized entry to any other machine accessible via the network.
Violations of the foregoing by Client may result in early termination of
services by USi.
6. Upon expiration of this Product Schedule, Client must relinquish use of the
IP address or address blocks assigned to it by USi in connection with the
services.
7. Upon Client's Acceptance of the iMAP Solution, Client shall be responsible
for the administration of all end user login names and passwords for the
purpose of authenticating and authorizing Global Network access by end
users to the iMAP Solution.
8. Client shall be responsible for handling all communication, technical
support to and business relations with end users who are the customers of
Client including but not limited to responding to inquiries and questions.
9. Client shall provide USi with access to such hardware, software and
network connections as USi shall require.
10. Client shall be responsible for obtaining and maintaining the following
hardware and/or software:
A. To be determined
11. Client shall be responsible for providing to USi all information required
for the Acceptance Test in a timely manner and in form directed by USi.
Client shall participate in the Acceptance Testing in good faith and with
all due diligence.
12. Client shall indemnify, defend and hold USi harmless against any claims,
damages, costs and attorneys fees incurred by USi arising from USi's use of
software licensed by or delivered through Client for use in the iMAP
Solution, including, but not limited to, claims for infringement of
patents, copyrights, trade secrets or other proprietary rights. This
obligation shall survive termination of the Product Schedule.
13. Client shall perform the obligations set forth in the incorporated
provisions of the Proposal as Client responsibility.
Page 3 January 15, 1999
Confidential. Disclose and distribute solely to those individuals who have a
need to know.
USinternetworking, INC. U S WEST BUSINESS RESOURCES, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
---------------------------------- --------------------------------
(signature) (signature)
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Vice President and General Counsel Supplier Manager
January 15, 1999 January 15, 1999
---------------------------------- --------------------------------
(date) (date)
Page 4 January 15, 1999
Confidential. Disclose and distribute solely to those individuals who have a
need to know.
Exhibit B
Acceptable Use Policy
USinternetworking, Inc.
Introduction
This document defines the Acceptable Use Policy ( "Policy") of products and
services provided by USinternetworking, Inc. ("USi") to all of its clients and
other users (collectively, "Client"). This Policy will ensure the integrity,
security, reliability and privacy of the USi network, systems, products,
services, server hosting facilities and data contained within (collectively, the
"USi Network"). Client is responsible for continual compliance of this Policy.
USi Network Security
Client is prohibited from violating, or attempting to violate, the security of
the USi Network. Any violations may result in criminal and civil liabilities to
the Client. USi will investigate any alleged violations and will cooperate with
law enforcement agencies if a criminal violation is suspected. Examples of
violations of the security of the USi Network include, without limitation, the
following:
- Accessing data not intended for such Client
- Logging into a server or account which the Client is not authorized
to access
- Attempting to probe, scan or test the vulnerability of a system or
network
- Breach security or authentication measures without proper
authorization
- Attempting to interfere with service to any user, host or network
including, without limitation, via means of overloading, "flooding,"
"mailbombing," or "crashing"
- Taking any action in order to obtain services to which the Client is
not entitled
Illegal Use
The USi Network may only be used for lawful purposes. For example, Client may
not use the USi Network to create, transmit, distribute, or store material that:
- Violates a trademark, copyright, trade secret or other intellectual
property rights of others
- Violates the privacy, publicity or other personal rights of others
- Impairs the privacy of communications
- Contains obscene, offensive or inappropriate content
- Constitutes pornography
- May be threatening, abusive or hateful
- Violates export control laws or regulations
- Encourages conduct that would constitute a criminal offense or give
rise to civil liability
- Causes technical disturbances to the USi Network, including, but not
limited to, introduction of viruses, worms or other destructive
mechanisms
- Violates reasonable regulations of USi or other service providers
with respect to the network o Assist or permit any persons in
engaging in any of the activities described above o Constitutes
deceptive on-line marketing.
If Client becomes aware of any such activities, Client is obligated to
immediately notify USi and take all other appropriate actions to cause such
activities to cease.
UNSOLICITED COMMUNICATIONS ("SPAM")
Posting the same or similar unsolicited e-mail messages, bulk commercial
advertising or informal announcements to one or more groups (known as "Spam") is
prohibited. Spam is not only annoying to Internet users, it seriously affects
the efficiency and cost-effectiveness of the USi Network. These unsolicited
messages can increase your costs by clogging the USi Network, rendering your web
site inaccessible and potentially leading to down time of your mission-critical
Internet applications.
In addition, both USENET AND E-MAIL USERS may not:
- send or post e-mail messages which are excessive and/or intended to
harass or annoy others
- continue to send e-mail to a recipient that has indicated that
he/she does not wish to receive it o send e-mail with forged TCP/IP
packet header information
- intentionally omit, delete, forge or misrepresent transmission
information, including headers, return addresses information
- take any other actions intended to cloak the Client's identity or
contact information
CONTENT
Client is responsible for all its content hosted by USi. USi exercises no
control over, and accepts no responsibility for, the content of the information
passing through the USi Network, including content provided on any third party
websites linked to the USi Network. Any website links are provided as Internet
navigation tools for informational purposes only and not as an endorsement by
USi of the contents of such web sites. USi does not adopt, nor warrant the
accuracy of, the content of any linked website and undertakes no responsibility
to update the content. Use of any information obtained via the USi Network is at
Client's own risk.
USi does not screen communications and is not responsible for screening or
monitoring content used by Client.
Exhibit B
Acceptable Use Policy
USinternetworking, Inc.
Consequences of Unacceptable Use
USi reserves the right to suspend or terminate access to the USi Network upon
notice of a violation of this Policy.
Indirect or attempted violations of this Policy, and actual or attempted
violations by a third party on behalf of a Client, shall be considered
violations of this Policy by such Client.
INDEMNITY
Client agrees to indemnify and hold harmless USi, its officers, directors,
employees and agents from any losses, damages, costs or expenses resulting from
any third party claim or allegation ("Claim") arising out of or relating to any
use of the USi Network, including any Claim which, if true, would constitute a
violation of this Policy.
Limitation of Liability
Under no circumstances shall USi's liability for any damages to Client under
this Policy exceed the amount Client paid for one (1) month's access to the USi
Network.
Questions, Comments or Complaints
USi reserves the right to modify this Policy in the manner set forth above at
any time. If you are unsure whether any contemplated use is permitted or have
any comments regarding prohibited use or other abuse of the USi Network, please
direct questions or comments to: USinternetworking, Inc., Xxx XXx Xxxxx,
Xxxxxxxxx, XX 00000-0000 Attn: Legal Department or XXXXX@XXx.XXX.
