CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THE
SCHEDULES TO THIS AGREEMENT PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
TECHNICAL SERVICES AGREEMENT
This TECHNICAL SERVICES AGREEMENT (the "AGREEMENT") is effective as of
12:01 A.M. February _____, 2000 (the "EFFECTIVE DATE"), between SAVVIS
Communications Corporation, a Missouri corporation ("SAVVIS"), and Bridge
Information Systems, Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing
various financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION
AGREEMENT").
D. It is an obligation of the parties under the Master Establishment
and Transition Agreement to cause this Technical Services Agreement to be
entered into between SAVVIS and Bridge, pursuant to which Bridge shall provide
technical services to SAVVIS relating to the assets acquired by SAVVIS pursuant
to the Master Establishment and Transition Agreement.
E. Together with this Agreement, the parties hereto are entering into a
Network Services Agreement of even date herewith (the "NETWORK SERVICES
AGREEMENT") providing for the provision of certain services to Bridge by SAVVIS
and an Administrative Services Agreement of even date herewith (the
"ADMINISTRATIVE SERVICES AGREEMENT"), providing for the provision of certain
services to SAVVIS by Bridge. Certain SAVVIS Subsidiaries and certain Bridge
Subsidiaries are entering into, and may in the future enter into, Local Transfer
Agreements, Local Network Services Agreements (the "LOCAL NETWORK SERVICES
AGREEMENTS"), Equipment Collocation Permits, and Local Administrative Services
Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Technical Services
Agreement by and between SAVVIS and Bridge, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Addenda,
provided that if such a conflict shall arise, the Addenda
shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using
the contacts, the parties shall work together in good faith
with such diligence as shall be commercially reasonable under
the circumstances to complete such Addendum, provided,
however, that neither party shall be obligated to enter into
such an Addendum. Upon the completion of such Addendum, it
shall be set forth in a written document and executed by the
parties and shall become a part of this Agreement and shall be
deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Master Establishment
and Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts
of SAVVIS for the provision of Internet Protocol backbone and
other data transport services other than the Acquired Network
Facilities.
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"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" shall mean a period of 12 months beginning on
the Effective Date and each subsequent anniversary thereof.
"AMERICAS" means Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx Xxxxx
Xxxxxxx, including the Caribbean, but excluding the United
States.
"ASIA" means Australia, China, Hong Kong, India, Indonesia,
Japan, Korea, Macau, Malaysia, New Zealand, Philippines,
Singapore, Taiwan, and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and
Transition Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Bridge, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by Bridge by virtue of its performance under this
Agreement or (ii) by SAVVIS by virtue of its use of the
Services. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement. Confidential Information shall not include
information that:
(a) is already rightfully known to the receiving
party at the time it is obtained by such
party, free from any obligation to keep such
information confidential; or
(b) is or becomes publicly known through no
wrongful act of the receiving party; or
(c) is rightfully received by the receiving
party from a third party without restriction
and without breach of this Agreement.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EUROPE" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Poland, Spain, Sweden, Switzerland,
Turkey and the United Kingdom.
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"INITIAL TERM" shall mean a period of ten consecutive
Agreement Years beginning on the Effective Date.
"LOCAL ACCESS FACILITIES" means the local access line or other
local communications circuit provided by a local exchange
carrier connecting the Acquired Network Facilities or the
Additional Network Facilities to an Installation Site.
"NOC" means each Network Operations Center that is part of the
SAVVIS Network, including the NOCs currently in St. Louis,
London and Singapore.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Services contained in a Schedule or an
Addendum to this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation.
"SAVVIS EQUIPMENT" means all items of equipment owned by
SAVVIS or provided to SAVVIS by others related to the SAVVIS
Network.
"SAVVIS NETWORK" means the managed packet-data transport
networks operated by SAVVIS, whether using the Acquired
Network Facilities or using Additional Network Facilities.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Delaware corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term
"Buyer Subsidiaries" in the Master Establishment and
Transition Agreement.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"SERVICES" means the and services provided by Bridge to SAVVIS
hereunder.
"SERVICE SITE" means any location at which Bridge provides
Services to SAVVIS. The Service Sites may be changed by mutual
agreement of the parties as set forth from time to time in
Addenda to this Agreement.
2. THE SERVICES
2.1. Bridge agrees to provide to SAVVIS the following services:
(a) help desk support for the operation of the SAVVIS
Network, as described in Schedule 2.1(a) hereto;
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(b) installation, maintenance and repair of facilities
and equipment used in the SAVVIS Network (other than
the NOC), as described in Schedule 2.1(b) hereto;
(c) other services related to the SAVVIS Network with
respect to the customers of both SAVVIS and Bridge,
including, without limitation, processing orders for
service and provisioning interconnection to the
SAVVIS Network, as described in Schedule 2.1(c)
hereto; and
(d) collocation of third-party equipment in SAVVIS
facilities, including, without limitation, management
of the facilities in which such equipment is
collocated, installation and maintenance of hardware,
and the provision and management of computer
operations staff, as described in Schedule 2.1(d)
hereto; and
(e) management of the NOCs for the SAVVIS Network, as
described in Schedule 2.1(e) hereto;
which shall be referred to in this Agreement collectively as
the "SERVICES" and individually as a "SERVICE." Each Service
shall be provided according to such Quality of Service
Standards set forth in the applicable Schedule. Bridge shall
be responsible for monitoring the compliance of the Services
with the Quality of Service Standards and shall provide SAVVIS
with monthly reports of such compliance substantially in the
form of the "SummEx Client Services Executive Summary"
regularly prepared by Bridge prior to the Effective Date.
2.2. Any changes to the Services or in the Quality of Service
Standards applicable thereto shall be provided for in an
Addendum hereto mutually agreed upon by the parties in the
manner set forth in Section 1.2 hereof. Unless otherwise
mutually agreed by the parties, each such Addendum shall have
a term of three years.
2.3. SAVVIS agrees that it will request Bridge to provide such
Services for which Bridge has prepaid under the contract
between Bridge Information Systems (UK) Limited and British
Telecommunications PLC, executed by the parties thereto on 16
December 1998 and 31 December 1998, respectively.
3. RATES AND CHARGES
3.1. For the first Agreement Year in the Initial Term of this
Agreement, SAVVIS shall pay Bridge for the Services according
to the rates and charges set forth in the applicable Schedule.
3.2. For all cases not covered by Section 3.1, Bridge shall charge
SAVVIS the rates and charges for the Services as shall be
provided for in an Addendum hereto mutually agreed upon by the
parties in the manner set forth in Section 1.2 hereof. If the
parties fail to reach agreement on any such Addendum prior to
5
the expiration of the Addendum then in effect, the rates and
charges shall be determined by binding arbitration, as
follows:
3.3. The arbitration shall be conducted by a single arbitrator
jointly selected by the parties, who shall be an attorney
experienced and knowledgeable in the tariffs and pricing of
telecommunications services (the "ARBITRATOR"). If the parties
are unable to agree on the selection of the Arbitrator within
30 days, either party may apply to the United States District
Court for the Eastern District of Missouri or to the Circuit
Court of St. Louis County for the appointment of the
Arbitrator.
(b) Within 10 days following the appointment of the
Arbitrator, each party shall submit to the Arbitrator
such party's best and final offer for the rates and
charges to be set forth in such Addendum.
(c) The Arbitrator must select the offer of one party or
the other as being closer to the Arbitrator's own
assessment of what an independent vendor would charge
for services similar in nature and volume to those to
be covered by such Addendum (the "INDEPENDENT VENDOR
PRICE").
(d) The decision of the Arbitrator shall be final and
binding on the parties and shall be incorporated in
this Agreement as an Addendum hereto.
(e) Each party shall bear its own costs in conducting the
arbitration, and the non-prevailing party shall pay
the fees and expenses of the Arbitrator.
4. INVOICES
4.1. The amounts due to Bridge from SAVVIS for the Services shall
be billed monthly in arrears. All items on invoices not the
subject of a bona fide dispute shall be payable by SAVVIS in
United States currency within 30 days from the date of receipt
of the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on
all amounts not paid within 30 days of the date of receipt of
the invoice.
4.2. SAVVIS shall pay any sales, use, federal excise, utility,
gross receipts, state and local surcharges, and similar taxes,
charges or levies lawfully levied by a duly constituted taxing
authority against or upon the Services. In the alternative,
SAVVIS shall provide Bridge with a certificate evidencing
SAVVIS' exemption from payment of or liability for such taxes.
All other taxes, charges or levies, including any ad valorem,
income, franchise, privilege, value added or occupation taxes
of Bridge shall be paid by Bridge.
4.3. Bona fide disputes concerning invoices shall be referred to
the parties' respective Contract Managers for resolution. Any
amount to which SAVVIS is entitled as a result of the
resolution of a billing dispute shall be credited promptly to
6
SAVVIS' account. Any amount to which Bridge is entitled as a
result of the resolution of a billing dispute shall be paid
promptly to Bridge.
4.4. Against the amounts owed by SAVVIS to Bridge under this
Agreement, SAVVIS shall have the right to offset any amounts
owed by Bridge to SAVVIS under this Agreement, the Network
Services Agreement, or otherwise.
5. TERM AND EXTENSIONS
5.1. This Agreement shall commence on the Effective Date, and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions
hereof.
5.2. The term of this Agreement shall automatically terminate upon
the termination of the Network Services Agreement for any
reason, and shall automatically be extended for such period as
the term of the Network Services Agreement may be extended,
including any Transition Period, as defined in the Network
Services Agreement.
6. TERMINATION BY SAVVIS
6.1. SAVVIS shall have the right to terminate this Agreement, with
no liability to Bridge other than for charges (less any
applicable credits) for Services provided prior to such
termination, if:
(a) SAVVIS provides 10 days written notice of its intent
to terminate in the event that Bridge has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of Bridge under this Agreement, and Bridge
has failed to cure such failure or violation within
60 days after receiving notice thereof from SAVVIS;
or
(b) Bridge becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, admits in writing its inability
to pay debts when due.
6.2. In the event that SAVVIS exercises this option, Bridge will
continue to provide the Services in accordance with the terms,
conditions and rates herein for a period of up to 12 months
after the effective date of termination. If the Services have
not completely transitioned from Bridge after 12 months,
Bridge will provide the Services at Bridge's then current list
rates. Bridge and its successor will cooperate with SAVVIS
until the Services are completely migrated to another
provider.
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7. TERMINATION BY BRIDGE
Bridge shall have the right to terminate this Agreement if:
(a) SAVVIS has failed to pay any invoice that is not the
subject of a bona fide dispute within 60 days of the
date on which such payment is due and Bridge has
provided SAVVIS with written notice thereof, provided
that SAVVIS shall have 30 days from the time it
receives such notice from Bridge of nonpayment to
cure any such default; or
(b) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, admits in writing its inability
to pay debts when due.
8. CONTRACT MANAGERS
8.1. CONTRACT MANAGER. SAVVIS shall assign a representative to
serve as Bridge's point-of-contact for all matters concerning
its performance under this Agreement.
8.2. CONTRACT MANAGER. Bridge shall assign a representative to
serve as SAVVIS' point-of-contact for all matters concerning
its performance under this Agreement.
9. RIGHTS AND OBLIGATIONS OF BRIDGE
9.1. PROVISION OF THE SERVICES. Bridge shall provide the Services
at the Service Sites designated by SAVVIS in accordance with
the Quality of Service Standards and other terms of this
Agreement.
9.2. ACCESS AND SECURITY. Bridge personnel shall have such access
to SAVVIS' premises as is reasonably necessary to provide the
Services in accordance with this Agreement, provided that
Bridge personnel shall comply at all times with SAVVIS'
reasonable security requirements. SAVVIS shall have the right
immediately to terminate the right of access of any Bridge
personnel to any or all Service Sites should SAVVIS determine
in its sole discretion that such termination is in SAVVIS'
best interest, provided that SAVVIS shall not exercise this
right on grounds unrelated to job performance or in a manner
that obliges Bridge to commit an unlawful act. Unless Bridge
knew or should reasonably have known that particular Bridge
personnel would be barred from a Service Site, the time
allowed for any installation, repair, maintenance or similar
action that such personnel were to perform shall be extended
for the period reasonably required by Bridge to deploy
substitute personnel, provided that Bridge shall use its best
efforts to deploy such substitute personnel as quickly as
possible. For purposes of this Section, any subcontractor or
other agent of Bridge shall be treated as Bridge personnel.
8
9.3. PROPER USE OF SAVVIS EQUIPMENT.
9.3.1. Bridge shall use any SAVVIS Equipment in connection
with the Services in accordance with its
documentation, which documentation shall be provided
by SAVVIS at no additional charge.
9.3.2. Bridge shall be liable for damages to the SAVVIS
Equipment caused by the negligence or willful acts or
omissions of Bridge's officers, employees, agents or
contractors, and for damages to SAVVIS Equipment
caused by the use of equipment or supplies not
authorized by SAVVIS.
9.3.3. Bridge shall neither permit nor assist others to use
the SAVVIS Equipment for any purpose other than that
for which they are intended, and Bridge shall be
liable to SAVVIS for any direct costs incurred by
SAVVIS as a result of such use.
9.4. INSURANCE.
9.4.1. At all times during the term of this Agreement,
Bridge shall maintain for itself, its officers,
employees, agents and representatives insurance as
shall be provided for in an Addendum mutually agreed
upon by the parties in the manner set forth in
Section 1.2 hereof.
9.4.2. Bridge shall furnish to SAVVIS, upon written request,
certificates of insurance or other appropriate
documentation (including evidence of renewal of
insurance) evidencing the insurance coverage
referenced above, naming SAVVIS as an additional
insured. Such certificates or other documentation
shall include a proviso whereby 15 days prior written
notice shall be provided to SAVVIS prior to coverage
cancellation or other material alteration by either
Bridge or the applicable insurer. Such cancellation
or material alteration shall not relieve Bridge of
its continuing obligation to maintain insurance
coverage in accordance with this Section.
9.4.3. In lieu of all or part of the insurance coverage
specified in this Section, Bridge may self-insure
with respect to any insurance coverage, except where
expressly prohibited by law.
9.5. REPRESENTATIONS AND WARRANTIES.
9.5.1. Bridge hereby warrants that the Services will be
provided in accordance with the Quality of Service
Standards throughout the term of this Agreement. In
the event that Bridge fails to provide any of the
Services in accordance with the Quality of Service
Standards, SAVVIS shall be entitled to recover from
Bridge (i) a refund of all amounts paid by SAVVIS to
Bridge, if any, for the performance of the specific
Service that fails to meet the applicable Quality of
Service Standards, plus (ii) the costs actually
9
incurred by SAVVIS in order to have such service
provided by a third party, to the extent such costs
are in excess of the amounts that SAVVIS actually
paid, or would have paid, to Bridge for the
performance of the specific Service that fails to
meet the applicable Quality of Service Standards.
9.5.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10. LIMITATIONS OF LIABILITY
10.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of the
form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Services or other conduct under this
Agreement.
10.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, or (b) injury or death, or damage to tangible real
or tangible personal property or the environment, when
proximately caused by SAVVIS' or Bridge's negligence or that
of their respective agents, subcontractors or employees.
Nothing contained in this Section shall limit Bridge's
intellectual property indemnification obligations under
Section 13.
11. PROPRIETARY RIGHTS; LICENSE
11.1. Bridge hereby grants to SAVVIS a non-exclusive and
non-transferable license to use all hardware, equipment,
programming and software necessary for SAVVIS to use the
Services. Such license is granted for the term of this
Agreement for the sole purpose of enabling SAVVIS to use the
Services.
11.2. All title and property rights (including intellectual property
rights) to Services (including associated programming and
software) are and shall remain with Bridge. SAVVIS shall not
attempt to examine, copy, alter, reverse engineer, decompile,
disassemble, tamper with or otherwise misuse such Services,
programming and software.
12. CONFIDENTIALITY
12.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
10
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
12.2. Notwithstanding Section 12.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any disclosure of Confidential
Information under clause (c) shall be made only upon prior
written approval of the other party and subject to the
appropriate assurances that the recipient of such information
shall hold it in strict confidence.
12.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
12.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
12.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
12.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
11
party's consent to such disclosure, use its best efforts to
resist, and to assist the other party in resisting, such
disclosure. A party providing another party's Confidential
Information to a court or other governmental authority shall
use its best efforts to obtain a protective order or
comparable assurance that the Confidential Information so
provided will be held in confidence and not further disclosed
to any other person, absent the owner's prior consent.
12.7. The provisions of Section 12.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the performance or enforcement of this
Agreement or any of the obligations hereof; provided, however,
that if the receiving party would otherwise be required to
refer to or describe any aspect of this Agreement in any of
the preceding circumstances, the receiving party shall use its
reasonable efforts to take such steps as are available under
such circumstances (such as by providing a summary or
synopsis) to avoid disclosure of the financial terms and
conditions of this Agreement. Notwithstanding any provisions
of this Agreement to the contrary, either party may disclose
the terms and conditions of this Agreement in the course of a
due diligence review performed in connection with prospective
debt financing or equity investment by, or a sale to, a third
party, so long as the persons conducting such due diligence
review have agreed to maintain the confidentiality of such
disclosure and not to use such disclosure for any purpose
other than such due diligence review.
13. INDEMNIFICATIONS
13.1. Bridge shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against SAVVIS or any of
its directors, officers, employees or assigns for actual or
alleged infringement of any patent, copyright, trademark,
trade secret or similar proprietary right to the extent that
such claim or action arises from Bridge's provision of the
Services. SAVVIS shall notify Bridge promptly in writing of
any such claim or suit and shall cooperate with Bridge in a
reasonable way to facilitate the settlement or defense
thereof. Bridge further agrees to indemnify and hold SAVVIS
harmless from and against any and all liabilities and damages
(whether incurred as the result of a judicial decree or a
settlement), and the costs and expenses associated with any
claim or action of the type identified in this Section
(including reasonable attorneys' fees).
13.2. If, as a consequence of a claim or action of the kind
described in Section 13.1, SAVVIS' or Bridge's use of any
Service or related documentation is enjoined, Bridge shall, at
its option and expense, either: (a) procure for SAVVIS the
right to continue using the affected Services or
documentation; (b) modify such Service or documentation so
that it is non-infringing, provided that such modification
does not affect the intended use of the Service or
documentation as contemplated hereunder; or (c) upon written
notice to SAVVIS, substitute for such Service or documentation
12
a comparable, non-infringing product or service or
documentation. If Bridge does not take any of the actions
described in clauses (a), (b) and (c), then SAVVIS may
terminate any affected Service pursuant to Section 5, and
Bridge shall refund to SAVVIS any prepaid charges therefor.
14. DISPUTES
14.1. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract,
tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 14.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
14.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or notice
on the other in any arbitration or litigation in accordance
with the notice provisions hereof. The parties agree not to
disclose any information regarding any Dispute or the conduct
of any arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have a
need to know.
14.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
14.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
14.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
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foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
14.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
14.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 14.
14.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
14.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and Bridge shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Services to
SAVVIS unless otherwise directed by SAVVIS. This Section shall
not apply where SAVVIS is in default under this Agreement.
15. FORCE MAJEURE
15.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
15.2. If Bridge cannot promptly provide a suitable temporary Bridge
alternative to a Service subject to an Interruption in
connection with the existence or a force majeure condition,
SAVVIS may, at its option and at its own cost, contract with
14
one or more third parties for (or provide for itself) any or
all affected Services for the shortest commercially available
period likely to cover the reasonably expected duration of the
Interruption, and may suspend Bridge's provision of such
Services for such period. Bridge shall not charge SAVVIS for
any Services thus suspended during the period of suspension.
Bridge shall resume provision of the suspended Services upon
the later of the termination or expiration of SAVVIS' legally
binding commitments under contracts with third parties for
alternative services or the cessation or remedy of the force
majeure condition.
15.3. In the event that a force majeure condition shall continue for
more than 60 days, SAVVIS may cancel the affected Services
with no further liability to Bridge other than for Services
received by SAVVIS prior to the occurrence of the force
majeure condition.
16. GENERAL PROVISIONS
16.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.
16.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
16.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
16.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
16.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
16.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
15
If to Bridge: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President
and General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and
General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
16.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of
law provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
16.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Bridge. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent
such occurrence.
16.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
16
16.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
16.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
16.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Technical
Services Agreement to be executed as of the date first above written.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
SAVVIS COMMUNICATIONS CORPORATION
By
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
BRIDGE INFORMATION SYSTEMS, INC.
By
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
17
SCHEDULE 2.1(a)
HELP DESK SERVICES
1. Bridge will provide help desk support for 24 hours a day, seven days a
week, to SAVVIS customers using the SAVVIS Network, including customers
using the SAVVIS Dial Service. Help desk support shall include, without
limitation, assistance with establishing network connections and
response to inquiries regarding network performance.
2. The number of phone lines and staff personnel will be such that the
mean wait time per call, determined daily, will not exceed two minutes.
3. Help desk inquiries will be escalated as follows:
Escalation to next level in how many hours
-----------------------------------------------------------------------
OUTAGE MTTR XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 6
SEVERITY EXAMPLES (HOURS) TAM MANAGER DIRECTOR VP SVP
Single site or
I user impaired 8 2 8 12 24 48
Multiple sites
II or users impaired 6 1 2 4 8 16
Site(s) down or 30
III unable to communicate 3 minutes 1 2 4 8
4. Bridge will ensure that help desk staff are trained to be knowledgeable
in all aspects of the operations of the SAVVIS Network.
5. Unless otherwise agreed by Bridge and SAVVIS, Bridge will provide the
following help desk software, and will maintain the most current
version thereof: Summex, Vantive and OP Center.
6. Unless otherwise agreed by Bridge and SAVVIS, Bridge will provide the
following telecommunications equipment and computer hardware for the
help desk: Lucent Difinity G4.
7. Bridge will provide toll-free calling access to the help desk from the
following locations: the Americas, Europe, and Asia.
8. In the event that SAVVIS believes that the performance of a specific
member of Bridge's help desk staff is not satisfactory with respect to
assisting SAVVIS customers, SAVVIS may raise the matter with Bridge,
and Bridge and SAVVIS will work together to resolve the matter,
including the possible removal of such person from providing help desk
services to SAVVIS customers under this Agreement.
18
9. SAVVIS will compensate Bridge for help desk support at the following
rates:
(a) For calls relating to the SAVVIS dial-in service, [*] per
call;
(b) For calls relating to the SAVVIS DSL service, [*] per call;
and
(c) For calls relating to SAVVIS Internet managed data virtual
private networks, [*] per call.
Call records relating to the products or services provided by Bridge,
whether or not also relating to the performance of the SAVVIS Network
or Dial Service, shall not be billed to SAVVIS by Bridge.
10. The parties will review the response times specified in this Schedule
on an annual basis and revise them as may be required to ensure that
they are consistent with the then current standards in the
telecommunications industry.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS
SCHEDULE PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
19
SCHEDULE 2.1(b)
FIELD INSTALLATION AND SUPPORT SERVICES
1. Bridge will, if requested by SAVVIS, provide the installation of
equipment for the operation of the SAVVIS Network and the connection of
customers of Bridge and SAVVIS to the SAVVIS Network.
2. Bridge will, if requested by SAVVIS, provide the installation of
equipment in response to an order for new service from a customer of
Bridge or SAVVIS.
3. Bridge will, if requested by SAVVIS, provide the installation of
equipment relating to the expansion or modification of the backbone of
the SAVVIS Network.
4. Orders for new service from customers of Bridge or SAVVIS will be
received and processed by Bridge in accordance with Addendum 2.1(c).
5. The equipment to be installed that will constitute part of the SAVVIS
Network will be specified by SAVVIS.
6. Bridge will be responsible for configuring and installing certain
network equipment at the Installation Site.
7. Bridge will, if requested by SAVVIS, dispatch field personnel to
install the equipment. Such personnel shall be employees or contractors
of Bridge.
8. In the event that SAVVIS believes that the performance of a specific
member of Bridge's field installation and support staff is not
satisfactory with respect to assisting SAVVIS customers, SAVVIS may
raise the matter with Bridge, and Bridge and SAVVIS will work together
to resolve the matter, including the possible removal of such person
from providing such services to SAVVIS customers under this Agreement.
9. Bridge will, if requested by SAVVIS, provide repair services for the
installed equipment of the SAVVIS Network, including equipment that is
part of the SAVVIS backbone.
10. Bridge will ensure that, on a global basis, mean response time for the
configuration and installation of new equipment, determined monthly,
will not exceed three days (five days, for customer sites outside the
United States) after Bridge has been notified that the customer's site
is ready for such installation.
11. Bridge will provide telephone support 24 hours a day, seven days a
week, for the installation of the SAVVIS network at the customer's
site.
12. Bridge will ensure that, on a global basis, mean response time for the
repair or replacement of equipment on the SAVVIS Network, determined
monthly, will not exceed
20
12 hours (24 hours, for locations outside the United States) after
Bridge has received a trouble report.
13. Bridge will be compensated by SAVVIS for providing field engineer
support, according to the following hourly rate on a global basis:
Field engineer support [*] per hour (two hours minimum), with no
charge for travel time to the site
14. Bridge will be compensated by SAVVIS for the installation and repair of
equipment on a time and materials basis, and according to the following
hourly rate on a global basis:
(a) Field engineer [*] per hour (two hours minimum) , with no
charge for travel time to the site
(b) Materials Cost plus ten percent ([*])
15. In addition, Bridge will provide system support and programming
services when requested by SAVVIS, at the following rates:
(a) Base fee to maintain the system as of the Effective Date to be
mutually agreed between the parties.
(b) Software development on a per-project, time and materials
basis.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS
SCHEDULE PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
21
SCHEDULE 2.1(c)
CUSTOMER ORDER PROCESSING SERVICES
1. Bridge will provide the necessary services to receive and process
orders from prospective customers for the products and services offered
by Bridge or by SAVVIS on the SAVVIS Network, but excluding orders from
Bridge for network services under the Network Services Agreement.
2. Bridge will be responsible for managing all steps required for the
fulfillment of such order, including without limitation:
(a) the configuration and installation of necessary equipment;
(b) scheduling installation and service initiation with the
customer;
(c) provisioning of interconnection to the SAVVIS Network; and
(d) additional services that may be provided under the
Administrative Services Agreement, such as credit
authorization, billing information and the like.
3. SAVVIS will compensate Bridge for customer order processing at the rate
of [*] per Vantive work order.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS
SCHEDULE PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
22
SCHEDULE 2.1(d)
COLLOCATION SERVICES
1. Collocation services provided by Bridge at SAVVIS facilities shall
include, without limitation, facilities management (e.g., power,
heating, air conditioning, lighting and other utilities), project
management for the installation and connection of such equipment,
installation and maintenance of the equipment, and full monitoring and
management of such equipment with Bridge employees.
2. SAVVIS will market such space to its customers at rates to be
determined by SAVVIS.
3. For providing such space, Bridge shall be compensated at the following
rates per square foot to be mutually agreed upon following an analysis
to be conducted by the parties of the costs pertaining to such space,
plus the actual cost of providing electrical power to such spaces:
UNITED STATES
AND CANADA EUROPE ASIA
POP COLLOCATIONS [*] [*] [*]
[*]
REGIONAL CUSTOMER
COLLOCATION [*] [*] [*]
ST. LOUIS NOC
COLLOCATION [*] N/A N/A
4. For providing facilities management services, Bridge shall be
compensated at the following rates to be mutually agreed upon following
an analysis to be conducted by the parties of the costs pertaining to
such services:
UNITED STATES
AND CANADA EUROPE ASIA
POP COLLOCATIONS
REGIONAL CUSTOMER
COLLOCATION
ST. LOUIS NOC
COLLOCATION
23
5. If requested by SAVVIS or by a customer of SAVVIS, Bridge will install
the customer's equipment in the space provided, including racking,
cabling and powering. Bridge will be compensated by SAVVIS for such
work at the rate of [*] per rack.
6. If requested by SAVVIS or by a customer of SAVVIS, Bridge will perform
scheduled and other required maintenance of such equipment, will
provide monitoring of such equipment 24 hours a day, seven days a week,
and will provide reports and statistics on the operation of such
equipment. Bridge will be compensated by SAVVIS for such work annually
at a rate equal to [*] of the vendor's list price for such equipment.
7. If requested by SAVVIS or by a customer of SAVVIS to perform additional
project management responsibilities, such as loading software or
configuring equipment, Bridge will perform and be compensated for such
work on an individual case basis.
8. If requested by SAVVIS or by a customer of SAVVIS, Bridge will arrange
for the replacement of existing collocated equipment and will be
compensated in an amount equal to the actual cost charged to Bridge by
the hardware vendor for such work.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS
SCHEDULE PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
24
SCHEDULE 2.1(e)
NOC MANAGEMENT SERVICES
1. Bridge will provide management of the operations of each of the
following SAVVIS Network Operations Centers ("NOCs"):
St. Louis: 24 hours a day, seven days a week
London: seven days a week, from 7:00 a.m. to 7:00 p.m. local time
Singapore: seven days a week, from 7:00 a.m. to 7:00 p.m. local time
2. The operations personnel staffing each NOC will be employees of SAVVIS
and the supervisory personnel will be employees of Bridge.
3. SAVVIS will compensate Bridge for management of the NOCs at the rate of
[*] per year.
4. In the event that the performance of a specific member of Bridge's NOC
management is not satisfactory to SAVVIS, SAVVIS may raise the matter
with Bridge, and Bridge and SAVVIS will work together to resolve the
matter, including the possible removal of such person from providing
such services to SAVVIS under this Agreement.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS
SCHEDULE PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
25