Exhibit 10.3
Agreement No. ___________
mediaXtranet(SM) Services Agreement
This agreement is made between Vyvx Broadband Media, a business unit of Xxxxxxxx
Communications, LLC, a Delaware limited liability company ("Vyvx"), with its
principal offices at Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, XX, 00000, and
iBEAM Broadcasting Corp., a Delaware corporation ("Customer"), with its
principal offices at 000 Xxxxxxx Xxx., Xxxxxxxxx, XX 00000, dated as of July 9,
2001, in connection with mediaXtranetSM services to be provided by Vyvx to
Customer as set forth herein (the "Agreement").
1. SERVICES. Vyvx shall provide Customer with the services as further
described in the attached Schedules which are made a part hereof
(collectively referred to herein as the "Services"). All Services are
subject to availability and approval of Customer's credit by Xxxxxxxx.
From time to time and subject to availability, changes may be made in the
Services which will be reflected in amendments to the applicable Schedule
or the addition of additional Schedules. Each amendment shall be executed
by authorized individuals of both parties. Each Schedule shall be part of
this Agreement and incorporated herein. The following Schedules are
attached to this Agreement and incorporated into the Agreement as if fully
set forth herein (check as applicable).
Schedule A |_| Web Hosting Services
Schedule B |_| Digital Media Access
Schedule C |_| Commercial Library Outsource
Schedule D |_| Commercial Clearance
Schedule E |X| Collocation Service
2. TERM. Upon signature by both parties, this Agreement shall become
effective on the date first set forth above and shall continue in effect
until the expiration of any Schedule attached hereto (the "Term").
3. CONTRACT NOTICES. Any required notices pursuant to this Agreement shall be
sent by facsimile, with confirmation by overnight courier to the parties
at the following addresses:
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Vyvx Broadband Media, Customer: iBEAM Broadcasting
a business unit of Xxxxxxxx Corporation
Communications, LLC 000 Xxxxxxx Xxxxxx,
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxx 000
Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Contract Administration Attn: General Counsel
Telephone: 000-000-0000 Tel: (000) 000-0000
Fax: 000-000-0000 Fax: (000) 000-0000
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4. ENTIRE AGREEMENT; AMENDMENTS. The Standard Terms and Conditions attached
hereto are considered an integral part of this Agreement and are
incorporated herein by reference. This Agreement, including the Standard
Terms and Conditions and all Schedules, contains the entire agreement of
the parties with respect to the subject matter hereof and supersedes any
prior understandings, oral agreements and/or writings between the parties
regarding the subjects within this Agreement. This Agreement may only be
amended or modified in writing signed by Customer and Vyvx.
IN WITNESS WHEREOF the parties have executed this Agreement by the hand of their
respective duly authorized officers.
Vyvx Broadband Media, a Business Unit Customer: iBEAM Broadcasting Corporation
of Xxxxxxxx Communications, LLC
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------------- ------------------------------------
Name: Name: Xxxxx Xxxxxxx
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Title: Title: CEO
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Date: Date: July 9, 2001
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Standard Form
mediaXtranet(SM) Services Agreement
(4/12/2001)
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mediaXtranet(SM) Services Agreement
Standard Terms and Conditions
1. SERVICE ORDERS.
a. All Services shall be requested on Vyvx's Service Order forms in effect
from time to time or on Customer's forms which have been previously accepted in
writing by Vyvx ("Service Order(s)"). Service Orders shall be transmitted and
processed in accordance with the terms and conditions of this Agreement as well
as any procedures set out in the applicable Service Schedule for a specific
Service. Vyvx shall accept any Service Order under this Agreement that complies
with the terms and conditions set forth herein, subject to availability and
credit approval at the time Customer places such Service Order.
b. A Service Order is deemed accepted (subject to availability) by Vyvx
when Vyvx transmits an electronic Order Confirmation Document ("OCD") to
Customer indicating that Customer's order is being processed by Vyvx.
c. When a Service Order is placed, Customer will designate: (i) a
requested start date ("Requested Start Date") for the Service; (ii) the desired
term of the Service; and (iii) any other information necessary to enable Vyvx to
provide the Service. Vyvx will make reasonable efforts to meet Customer's
Requested Start Date. In the event that Vyvx is unable to meet Customer's
Requested Start Date, Vyvx will notify Customer of the date when Vyvx believes
the Service will be available and Customer's Requested Start Date will be
changed to reflect the number of days of delay or advance, as appropriate.
Failure of Vyvx to deliver by Customer's Requested Start Date shall not
constitute a default under this Agreement, and Vyvx shall not be liable to pay
to Customer any penalties or damages for Vyvx's failure to meet Customer's
Requested Start Date.
d. Any terms or conditions contained in Customer's acknowledgement or
Service Order or elsewhere which conflict with, or are different from, the terms
and conditions in this Agreement are hereby objected to by Vyvx and shall not
constitute part of this Agreement.
e. Vyvx will issue to Customer an electronic notice that Service is
available ("Turn Up Acknowledgement" or "TUA"). The TUA will indicate that all
the relevant Service ordered through Vyvx has been tested by Vyvx and that the
Vyvx's Service meets or exceeds the Technical Specifications set forth in the
relevant Service Schedule. The TUA will also set forth the date Customer's
Service was available for use by Customer and upon which Vyvx shall commence
charging for the Service ("Effective Billing Date").
f. Customer shall be deemed to have accepted Service, and Vyvx shall begin
billing for the Service as of the Effective Billing Date, provided that, if
Customer notifies Vyvx in writing within three (3) business days of the
Effective Billing Date that Vyvx's Service is in material non-compliance with
the applicable Technical Specifications and if, upon investigation, such
material non-compliance is due solely to Vyvx fault, then Vyvx shall correct the
non-compliance and make the appropriate adjustment to Customer's xxxxxxxx under
this Agreement. The occurrence of any such non-compliance shall not constitute a
default under this Agreement, and Vyvx shall not be liable to pay to Customer
any penalties or damages resulting from any such non-compliance. Charges for
Service begin accruing upon Circuit Effective Billing Date, regardless of
whether Customer is actually using the Services, or is ready to test and accept
the Services.
2. PAYMENT AND LATE PAYMENT TERMS.
a. Service Charge. All fees and charges associated with the Services,
which may include non-recurring charges and monthly recurring charges (the
"Service Charge"), shall be set forth in each particular Service Schedule. The
monthly recurring and some non-recurring Service Charges shall be invoiced
monthly in advance. Other non-recurring Service Charges will be invoiced in
arrears. All amounts stated on each monthly invoice are due and payable in U.S.
dollars before the first day of the month in which Services are to be provided
for those Service Charges invoiced in advance and otherwise within thirty (30)
days of the date of the invoice for those Service Charges billed in arrears
("Due Date"). Customer agrees to remit payment via Automated Clearinghouse
("ACH") or wire transfer to Xxxxxxxx Communications, LLC, in care of Bank One,
Chicago, Illinois, ABA #000000000, Account #52-87235 or such other bank or
account as Vyvx may in writing direct Customer to remit payment pursuant to the
notice provisions of this Agreement. In the event Customer fails to make full
payment of undisputed amounts by the Due Date, Customer shall also pay a late
fee in the amount of the lesser of (i) one and one-half percent (1 1/2 %) per
month or (ii) the maximum lawful monthly rate under applicable state law, of the
unpaid balance which amount shall accrue from the Due Date of the invoice.
b. Billing Disputes. Notwithstanding the foregoing, Customer may
permissibly fail to pay amounts charged for Vyvx's Services which are reasonably
disputed by Customer (along with late fees attributable to such amounts),
provided Customer: (i) pays all undisputed charges on or before the Due Date;
(ii) presents a written statement of any billing discrepancies to Vyvx in
reasonable detail together with appropriate supporting documentation ("Notice of
Discrepancy") within one hundred eighty (180) days of the Due Date of the
invoice in question; and (iii) negotiates in good faith with Vyvx for the
purpose of resolving such dispute within sixty (60) calendar days of the date of
the Notice of Discrepancy. In the event such dispute is mutually resolved in
favor of Vyvx, Customer agrees to pay Vyvx the disputed amounts together with
any applicable late fees within five (5) business days of the date of
resolution. In the event such dispute is mutually resolved in favor of Customer,
Customer will receive a credit for the disputed charges and no late fees shall
apply to the disputed amount. In the event such dispute is not mutually resolved
between the parties, Vyvx shall have the right to seek any applicable remedy
permitted under this Agreement. Vyvx shall not be obligated to consider any
Customer Notice of Discrepancy which is received by Vyvx one hundred eighty
(180) days after the Due Date. This right to dispute applies only to Vyvx's
Services provided to Customer and not to any dispute Customer may have with
respect to third parties. To the extent requested by Customer and to the extent
Customer has reasonable grounds for such dispute, Vyvx will act on Customer's
behalf to dispute any charges for third party services relating to this
Agreement, provided that such dispute shall be subject to the third party's
rules regarding disputed amounts and not the provisions of this Agreement and
provided further, that Customer shall indemnify Vyvx against any costs, expenses
or charges incurred by Vyvx as a result of its acting on behalf of Customer to
dispute charges for third party services.
3. SUSPENSION OF SERVICES. In the event that Customer has failed to pay any
amount when due, Vyvx shall have the right to suspend Services in full or in
part. Vyvx shall only exercise this Suspension Right by first providing Customer
with five business days' written notice by facsimile. If Vyvx receives payment
from Customer of all amounts due within the five-day notice period, then
Customer's Services shall not be suspended. Suspension of Services does not
affect Customer's obligation to pay the Service Charges through the term of the
applicable Service Schedule.
4. CUSTOMER'S CREDIT.
a. Vyvx reserves the right to determine the creditworthiness of Customer
through available verification procedures or sources and Customer hereby
consents to Vyvx obtaining credit information regarding the Customer, its owners
and affiliates. If at any time, Customer presents, in Vyvx's reasonable
discretion, an undue risk of non-payment, or if Customer fails to comply with
the payment terms of this Agreement or any Service Order, Vyvx may require a
deposit or other forms of security for payment ("Deposit"). At Vyvx's sole
discretion, the Deposit shall be applied as payment to Customer's account either
(i) during the Term after Customer's payment history has been established or
(ii) as payment for the last month of the Term.
b. If at any time there is a material adverse change in Customer's
creditworthiness or a material adverse change in Customer's financial position,
then in addition to any other remedies available to Vyvx, Vyvx may elect, in its
sole discretion, to demand reasonable assurance of payment from Customer,
including among others the posting of a deposit.
c. A material adverse change in Customer's creditworthiness shall include,
but not be limited to: (i) Customer's default of its obligations to Vyvx under
this or any other agreement with Vyvx; (ii) failure of Customer to make full
payment of charges due hereunder on or before the Due Date on two (2) or more
occasions during any period of twelve (12) or fewer months; (iii) acquisition of
Customer (whether in whole or by majority or controlling interest) by an entity
which is insolvent or which is subject to bankruptcy or insolvency proceedings,
or which owes past due amounts to Vyvx or any Vyvx affiliate, or which is a
materially greater credit risk than Customer; or (iv) Customer's being subject
to or having filed for bankruptcy or insolvency proceedings or the legal
insolvency of Customer.
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d. A material adverse change in Customer's financial position shall
include, but not be limited to: (i) a decrease in net worth or working capital
of five percent (5%) or greater during any calendar quarter; or, (ii) a negative
net worth or working capital.
e. If Customer has not provided Vyvx with (i) its financial statements
within ten (10) calendar days of Vyvx's reasonable request therefor or (ii) in
the event of a Vyvx demand for assurance of payment, assurance satisfactory to
Vyvx within ten (10) calendar days of Vyvx's notice of demand for such
assurance, then, in addition to any other remedies available to Vyvx, Vyvx shall
have the option, in its sole discretion, to exercise one or more of the
following remedies: (A) cause the start of any Service described in any
previously executed Service Order to be delayed pending receipt of such
financial statements or of the satisfactory assurance; (B) decline to accept a
Service Order or other requests from Customer to provide Service; or (C) suspend
all or any portion of the Service then being provided after giving Customer five
(5) calendar days prior written notice. If Customer provides satisfactory
assurance during the five (5) calendar day notice period, Vyvx will not suspend
any Service.
5. TERMINATION OF AGREEMENT OR SERVICE SCHEDULES.
a. Termination For Cause. Except for an event of non-payment by Customer
hereunder which is addressed in subsection (b) below, either party may terminate
this Agreement if the other is in default of any material obligation contained
herein, which default has not been cured within thirty (30) calendar days
following the receipt of notice of such default setting forth the specifics of
such default. Termination and receipt of any applicable refund are Customer's
sole remedies in the event of any such default by Vyvx. Notwithstanding the
foregoing, the failure of any particular Service or Services to comply with the
Technical Specifications set forth individually for each Service in the attached
shall not be deemed a default by Vyvx, but may obligate Vyvx to provide Customer
with Outage Credits, if applicable under the relevant Service Schedule.
Termination of this Agreement for cause does not relieve Customer of any
obligations to pay Vyvx for charges accrued for Service which has been furnished
up to the time of termination nor does it relieve the Customer of all applicable
cancellation and/or disconnection charges. The remedies available to Vyvx as set
forth in this paragraph shall not be exclusive and Vyvx shall at all times be
entitled to all rights available to it under either law or equity.
b. Termination For Non-payment. In the event Customer has failed to pay
any amount when due (except for amounts disputed by Customer in accordance with
this Agreement), Vyvx shall have the right to terminate this Agreement upon five
(5) business days' notice via facsimile to the Customer. Termination of this
Agreement pursuant to this subsection shall not relieve Customer of any
obligations to pay Vyvx for charges accrued for Service which has been furnished
up to the time of termination nor does it relieve the Customer of all applicable
cancellation and/or disconnection charges. The remedies available to Vyvx set
forth in this paragraph shall not be exclusive and Vyvx shall at all times be
entitled to all rights available to it under either law or equity.
c. Termination for Violation of Law.
(i) Additionally, Vyvx may, without incurring any liability, cancel
any Service prior to its commencement or disconnect such Service, in whole or in
part, immediately and without notice if Vyvx deems that such action is necessary
to prevent or to protect against fraud or to otherwise protect its personnel,
agents, facilities or Services under any of the following circumstances:
(A) if Customer unreasonably refuses to furnish or provides
false information to Vyvx regarding the Customer's identity, address,
creditworthiness, past or current use of Services, or its planned use of
Services; or
(B) if Customer is using the Services in violation of any
applicable law or regulation.
(ii) In addition to its other termination rights hereunder, and with
respect to all Services, Vyvx may immediately disconnect any Service in whole or
in part if Vyvx determines that such Service violates any law, statute, or
ordinance, including the Communications Act of 1934 (as amended), or that the
imposition of any statute, or promulgation of any rule, regulation, or order of
the Federal Communications Commission or other governing body makes Vyvx's
performance under this Agreement commercially impracticable.
d. Removal of Customer Equipment. Upon expiration or termination of a
Service Schedule, Customer shall remove all Customer-owned property and return
to Vyvx all software, access keys and other items that were provided to Customer
by Vyvx during the term of such Service Schedule in conjunction with the
Services.
6. TAXES. Customer acknowledges and understands that all charges are computed
exclusive of any applicable federal, state or local use, excise, gross receipts,
sales and privilege taxes, duties, fees or similar liabilities (other than
general income or property taxes), including without limitation, any tax or
charge levied to support the Universal Service Fund contemplated by the
Telecommunications Act of 1996, whether charged to or against Vyvx, its
suppliers or affiliates or Customer for the Services provided to Customer
("Taxes"). Vyvx maintains the right, for the duration of this Agreement, to
invoice and pass through to Customer at cost, any assessments, taxes, new or
increased fees, or other charges required to be collected from Vyvx, by any
governmental agency, department or entity. Such Taxes shall be paid by Customer
in addition to all other charges provided for herein. If Customer is exempt from
such Taxes, Customer shall provide to Vyvx a valid exemption certificate.
7. RISK OF LOSS; INSURANCE.
a. Insurance Coverage. For Customer's Equipment (as defined in any Service
Schedule) and Customer's employees on Vyvx's premises, Customer will carry or
cause to be carried and maintained in force throughout the entire Term of this
Agreement insurance coverage as described in paragraphs (1) through (3) below
with insurance companies acceptable to Vyvx. The limits set forth below are
minimum limits and will not be construed to limit Customer's liability. All
costs and deductible amounts will be for the sole account of the Customer.
(1) Worker's Compensation insurance complying with the laws of the
State or States having jurisdiction over each employee, whether or not Customer
is required by such laws to maintain such insurance, and Employer's Liability
with limits of $500,000 each accident, $500,000 disease each employee, and
$500,000 disease policy limit. If work is to be performed in Nevada, North
Dakota, Ohio, Washington, Wyoming or West Virginia, Customer will participate in
the appropriate state fund(s) to cover all eligible employees and provide a stop
gap endorsement.
(2) Commercial or Comprehensive General Liability insurance on an
occurrence form with a combined single limit of $1,000,000 each occurrence, and
annual aggregates of $1,000,000, for bodily injury and property damage,
including coverage for blanket contractual liability, broad form property
damage, personal injury liability, independent contractors, products/completed
operations, and when applicable the explosion, collapse and underground
exclusion will be deleted.
(3) Automobile Liability insurance with a combined single limit of
$1,000,000 each occurrence for bodily injury and property damage to include
coverage for all owned, non-owned, and hired vehicles.
b. Waiver of Subrogation. In each of the above described policies,
Customer agrees to waive and will request its insurers to waive any rights of
subrogation or recovery they may have against Vyvx, its parent, subsidiary, or
affiliated companies.
c. Additional Insureds. Under the policies above, Vyvx, its parent,
subsidiary and affiliated companies will be named as additional insureds as
respects Customer's operations and as respects any work performed under this
Agreement. Any costs associated with naming these additional insureds will be
the responsibility of Customer. The policies described above will include the
following "other insurance" amendment: "This insurance is primary insurance with
respect to Xxxxxxxx Communications, LLC, its parent, subsidiary and affiliated
companies, and any other insurance maintained by Xxxxxxxx Communications, LLC,
its parent, subsidiary or affiliated companies is excess and not contributory
with this insurance."
d. Certificates of Insurance. Written notice of non-renewal or
cancellation of policies described above must be received by Vyvx from the
insurance company thirty (30) days in advance of any such non-renewal or
cancellation. Prior to commencing the Collocation Service hereunder, Customer
will deliver to Vyvx certificates of insurance on an XXXXX 25 or 25S form
evidencing the existence of the insurance coverage required above. In the event
of a loss or claim arising out of or in connection with the work performed under
this contract, Customer agrees, upon request of Vyvx, to submit the original or
a certified copy of its insurance policies for inspection by Vyvx.
e. Risk of Loss. Vyvx will not insure nor be responsible for any loss or
damage to property of any kind, including loss of use thereof, owned, leased or
borrowed by the Customer, or its employees, servants or agents, unless such loss
or damage is caused solely by the negligence of Vyvx, its employees, servants or
agents.
f. Insurance Requirement for Contractors. If Customer utilizes
contractor(s) per this Agreement, then Customer shall require such contractor(s)
to comply with these insurance requirements and supply certificates of insurance
before any work commences.
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8. LIMITATION OF VYVX'S LIABILITY
a. VYVX'S LIABILITY ARISING OUT OF ITS PROVISION OF SERVICES HEREUNDER,
SHALL BE LIMITED TO THE EXTENSION OF ALLOWANCES FOR INTERRUPTIONS OR OUTAGE
CREDITS AS SET FORTH IN THE APPLICABLE SERVICE SCHEDULE. SUCH ALLOWANCES FOR
INTERRUPTION OR OUTAGE CREDITS SHALL BE THE SOLE REMEDY OF CUSTOMER, INCLUDING
ANY END USER OF CUSTOMER, AND THE SOLE LIABILITY OF VYVX HEREUNDER. VYVX'S
LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF ITS FURNISHING
SERVICES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ITS FIXED MONTHLY OR OTHER
CHARGE ALLOCABLE TO THE FAULTY OR DEFECTIVE SERVICE.
b. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES,
INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL VYVX BE
LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED
TO, LOST PROFITS), REGARDLESS OF THE FORESEEABILITY THEREOF. CUSTOMER SHALL
DEFEND, INDEMNIFY AND HOLD HARMLESS VYVX FROM ANY CLAIMS MADE UNDER A WARRANTY
OR REPRESENTATION MADE BY CUSTOMER TO ANY THIRD PARTY WITH RESPECT TO THE
SERVICES.
9. CUSTOMER'S CONTENT AND RESPONSIBILITIES
a. Responsibility for Content. Customer shall be solely responsible for
all content transmitted by Vyvx as part of the Services ("Content"). For
purposes of this Agreement, "Content" will not include Vyvx's own content should
it be transmitted as part of this Service. Further, Customer shall make all
arrangements with other common carriers, stations, networks, sponsors, music
licensing organizations, performers, representatives or other parties for the
authorizations necessary to avail itself of the Services.
b. No Violation of Law. Customer shall not use the Services for any use
which violates any local, state, federal, national or international laws. Vyvx
shall have the right to terminate any Services provided hereunder and/or to
terminate this Agreement without liability to Customer in the event that Vyvx,
its officers, employees or agents, becomes the subject of any investigation, or
is threatened with or made a party to any administrative proceeding or
litigation, related to the alleged illegal use of the Services by Customer.
c. Acceptable Use Policy. Customer is responsible for ensuring that it,
and its customers, comply with Vyvx's Acceptable Use Policy ("AUP"), and
Customer agrees to be bound by the AUP. The AUP, as it may be amended from time
to time, is published at xxxx://xxxxx.xxx.xxx, or such other address as Vyvx may
specify by notice to Customer. Any violation of the AUP shall constitute a
material breach of this Agreement.
10. INDEMNIFICATION.
a. Customer and Vyvx shall defend, indemnify and hold harmless the other
against and from any and all claims for damage to tangible property or bodily
injury, including claims for wrongful death, to the extent that such claim
arises out of the negligence or willful misconduct of the respective
indemnifying party, its employees, agents, or contractors in connection with
this Agreement or the provision of Services hereunder.
b. Customer will defend, indemnify and hold harmless Vyvx and its
officers, directors, employees, contractors and agents against and from any
loss, debt, liability, damage, obligation, claim, demand, judgment or settlement
of any nature or kind, known or unknown, liquidated or unliquidated, including
without limitation, all reasonable costs and expenses incurred including all
reasonable litigation costs and attorneys' fees (collectively, "Damages")
directly or indirectly arising out of, resulting from or based upon any
complaint, claim, action, proceeding or suit of any third party, including any
governmental authority, (a "Claim).
c. Customer shall indemnify, defend, and save harmless Vyvx from any
liability arising out of Customer's failure to make arrangements for
authorization necessary to avail itself of the Services. Customer shall
indemnify, defend, and save harmless Vyvx from and against all loss, liability,
damage and expense, including reasonable attorneys' fees, due to claims arising
out of the Content of any programming transmitted over Vyvx's facilities
pursuant to this Agreement including without limitation, any claim for libel,
slander, or infringement of copyright and any other claim resulting from any act
or omission of Customer arising from the use of Vyvx's facilities or the
Services.
11. FORCE MAJEURE. Notwithstanding any other provision of this Agreement,
neither Vyvx nor Customer shall be held liable for any delay or failure to
perform any part of this Agreement (other than non-payment of amounts due
hereunder) for any cause beyond its control and without its fault or negligence,
including but not limited to acts or omissions of civil or military authorities,
national or local emergencies, government regulations, embargoes, epidemics,
wars, terrorist acts, sabotage, riots, insurrections, fires, lightning, sun,
hail, high winds or other adverse weather conditions, explosions, nuclear
accidents, strikes, extended power blackouts, natural disasters including but
not limited to earthquakes, floods or volcanic action, failure of satellite
transponder not caused by VYVX or failure of any third party facilities not
caused by VYVX, equipment or services (outside of the control of Vyvx and its
subcontractors) or any law, regulation or order of any government agency or
court of competent jurisdiction affecting either of the parties hereto in the
performance of their obligations hereunder.
12. RECONFIGURATION/RELOCATION. Vyvx reserves the right in its sole discretion
to relocate or re-configure its internet data centers or other mediaXtranet(SM)
facilities.
13. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors, and none of the provisions of this Agreement shall be interpreted
or deemed to create any relationship between Vyvx and Customer other than that
of independent contractors.
14. NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement are for the
benefit only of the parties hereto, and no third party may seek to enforce, or
benefit from these provisions.
15. PUBLICITY AND CONFIDENTIALITY. Customer and Vyvx each authorize the other,
during the term of this Agreement, to make routine references to the fact that
Customer is a customer of Vyvx and the general nature of services that Customer
purchases. Any other publication by either party of information surrounding this
Agreement through press releases, articles, interviews, marketing materials,
online materials, and/or speeches ("Publicity"), including use of logos, must
receive prior written consent of the other party. Such approval shall not be
unreasonably withheld.
16. NO WAIVER. A written waiver of a breach under this Agreement shall not
constitute a waiver of any subsequent breach. Failure of either party to enforce
compliance with any term or condition of this Agreement shall not constitute a
waiver of such term or condition.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its choice
of law provisions. Customer submits to personal jurisdiction in the federal
and/or state courts located in Delaware.
18. LEGAL EXPENSES. If any proceeding is brought for the enforcement of this
Agreement, or because of an alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs and expenses incurred in such action or proceeding in addition to
any other relief to which such party may be entitled.
19. SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be determined to be invalid or unenforceable by a court or body of
competent jurisdiction, then (a) both parties shall be relieved of all
obligations arising under such provision and this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it valid and
enforceable while preserving its intent, and (b) the remainder of this Agreement
shall be valid and enforceable.
20. SURVIVAL OF TERMS AND CONDITIONS. The terms and conditions of this Agreement
which by their nature extend beyond termination of this Agreement shall survive
the expiration or termination of this Agreement to the full extent necessary for
their enforcement and for the protection of the party in whose favor they
operate.
21. COUNTERPARTS AND FAXED SIGNATURES. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement. The parties consent to faxed
signatures as binding upon the parties.
22. PARTIES BOUND BY AGREEMENT; ASSIGNMENT. This Agreement is binding upon and
shall inure to the benefit of the parties hereto and upon their respective
successors and permitted assigns. Customer may not assign this Agreement without
the prior written consent of Vyvx, which consent shall not be unreasonably
withheld.
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[LOGO]
Xxxxxxxx
Communication
Schedule E - Collocation Services
mediaXtranet(SM) Services Agreement
1. SERVICE DESCRIPTION. Pursuant to the terms of the mediaXtranetSM Services
Agreement between the parties, Vyvx shall provide to Customer Collocation
Services and use of Vyvx's internet data center(s) (the "Media Center") as
more specifically set forth herein ("Services").
2. SERVICE INITIATION. The Services described herein shall commence on
____________ (the "Service Initiation Date"). Customer's obligation to pay
for the Services shall begin on the Service Initiation Date, unless the
Services have not begun as of that date due to some fault of Vyvx. If a
delay in the readiness of the Services is caused for any other reason,
including the failure of Customer's Equipment to be ready, then the delay
shall not affect Customer's payment obligations.
3. VYVX RESPONSIBILITIES.
3.1 Services. Vyvx shall provide the Services ordered by Customer in
accordance with this Schedule E and in accordance with the Service
Level Agreement attached hereto as Attachment A-3. Vyvx will provide
a Migration and Installation plan upon execution of this Schedule E.
Customer will provide and coordinate a mutually agreed upon
migration and installation plan to Vyvx.
3.2 Equipment. Vyvx will provide the necessary rack space at the Media
Center for Customer Equipment and will be responsible for the
necessary power and network connections to such Customer Equipment.
Upon request of Customer, Vyvx will provide routine maintenance or
system repairs on an as-needed basis to Customer. Vyvx will provide
sufficient technical resources to implement such maintenance
activities and Customer will be charged on a time and materials
basis as set forth in Section 7.3.
3.3 Media Center. The Media Center will meet the following requirements
and/or specifications:
(a) Provide secure data center facilities and associated services
in such manner as to reasonably satisfy customer's external
audit and risk management insurance requirements.
(b) Restricted Access - Provide secure key card restricted access
by its personnel to the data center. Multi-layered electronic
access control, 24X7 on-site security guards and video
surveillance equipment are utilized to provide additional
protection. Vyvx personnel will escort the customer's
designated hardware maintenance providers while they perform
maintenance services during normal business hours. Vyvx may
require a minimum of one hour notice before access will be
granted. Access after normal business hours may require a two
hour notice. Customers will be given physical access to the
data center, and all access will be subject to escort fees,
except in the following cases:
i. For a 30 days prior to the effective date, until 30 days
after the effective date, all escort fees will be
waived. This "implementation period" will be extended
only upon written consent of the seller
ii. On a monthly basis, the customer will be allowed 5
(five) visits per Media Center site which will not have
escort fees assessed. The duration of each visit will be
less than 3 (three) hours each. Any visit in excess of
the 3 hours will be subject to the prevailing escort
fee, with a one hour minimum.
Schedule E Page 1
(c) Raised Floor - A raised floor enable cable clearance for
customer's servers.
(d) Rack and Stack physical installation activities can be
provided to customer at time and material rates.
(e) Power Circuits - Data centers are provisioned with 20 amp
redundant circuits. Custom circuits accommodated though
additional implementation times and charges may apply.
(f) Power Heat and Cooling - Environmentally controlled conditions
are provided through the use of water-powered heating and
cooling systems. Fire suppression equipment consisting of dry
pipe and deluge sprinklers, and inert gas and limited
applications, are also present.
(g) Uninterrupted Power Supply (UPS) - UPS is used to back up all
power supplies at the data center. These battery systems
provide fault tolerance and sufficient power to operate the
data center for at least 15 minutes. In addition, diesel
generators automatically start in the event of a power outage.
These generators supply all of the power necessary for the
data center, and can be refueled to power the facility
indefinitely. Sufficient fuel is stored on premise to supply
three days of operation, and fuel delivery contracts are in
place with multiple local diesel fuel suppliers.
4. CUSTOMER RESPONSIBILITIES.
4.1 Service Charge.
(a) The monthly charge for the Service shall be as follows (the
"Service Charge") and shall be paid in accordance with the
payment terms of the Agreement:
One Time Installation Fees $ Waived
------------------------------------------------------------------------------------------------------
Services
Monthly Recurring Included in
Charges this Monthly Pricing Overview
Proposal -------------------------
------------------------------------------------------------
Standard Services Monthly Pricing Metric Quantity Total Price
----------------- -----------------------------------------------------------
Server Housing - 110V - 20 Amp (A:B) Included Per Rack $ 1,380
Server Housing - 208 V - 20 Amp (A:B) Included Per Rack $ 1,575
Additional Power 110 V 20 Amps AC* (A:B) Included Per 20Amp $ 250
Additional Power 208V 20Amps AC* (A:B) Per 20 Amp $ 400
Premium Services
----------------
Technical Account Mgr Not Included Per Hour $ $ --
Firewall Service Not Included Firewalls TBD $ --
Load Balancing Service Not Included Load Balancer TBD $ --
Professional Services Not Included Per Hour $ --
-----------------------------------------------------------
Firewall and Load Balancing pricing is available upon request, after
customer assessment and requirements are gathered.
*Up to maximum 2 - 20 Amp additional increments (total
of 60 Amps). Additional power needs will be priced on an
individual case basis.
These prices are based on the physical design
specifications provided by iBeam to Xxxxxxxx
Communications on 6/12/01. Any changes beyond this
design may necessitate additional MRC and/or NRC
charges.
(b) Customer will reimburse Vyvx for all reasonable air and local
transportation, lodging, meals and any other out-of-pocket
expenses incurred in connection with any services
Schedule E Page 2
Vyvx performs other than those outlined in the Agreement. Vyvx
will endeavor to gain approval from Customer before such
charges are incurred.
4.2 Escort Fee. To the extent that the Customer, or a Customer-selected
vendor, requires access to Customer Equipment for the purpose of
repair, maintenance or replacement, a fee of $125 per hour, with a 1
hour minimum, will be charged to Customer for providing access to
such third party vendor into the Facilities ("Escort Fee"). The
Escort Fee will not be charged to Customer for access to Customer
Equipment that is required in connection with the installation or
initial set-up (implementation period) of the Customer Equipment as
outlined in Section 3.3 b i.
4.3 Labor. If Xxxxxxxx performs labor for Customer, at Customer's
request, other than in connection with the Services, then Customer
agrees to pay Xxxxxxxx for that labor at the rate of $175 per hour.
An example of when a labor charge would be charged is if Xxxxxxxx
agreed to switch out an item of Customer's Equipment with a
replacement part provided by Customer.
4.4 Compliance with Media Center Policies. Customer agrees that it shall
comply with all safety, security and similar policies and procedures
of the Media Center that are provided to Customer in writing.
4.5 Customer's Equipment.
(a) For the Services described above, Customer shall provide the
equipment attached as Appendix 2 to this Schedule E
("Customer's Equipment") to the Media Center to be used in
connection with Vyvx provision of the Services to Customer.
Customer shall be responsible for the installation of hardware
and software on Customer's Equipment. To the extent that Vyvx,
or its designated third party vendors, provides technical
resources to implement routine maintenance or system repairs,
Customer will provide Vyvx all necessary training and
documentation relating to Customer's Equipment in order for
Vyvx personnel to carry out such maintenance activities. All
maintenance requests must be directed by the Customer and
furnished in writing to Vyvx.
(b) Customer's Equipment shall remain the property of Customer.
Maintenance, repair, or replacement of Customer's Equipment
shall be the sole responsibility of Customer. Customer may use
contractors for the purpose of such maintenance, repair or
replacement of Customer Equipment provided, however, that
Customer obtains Vyvx's prior written approval of any such
contractors (which approval shall not be unreasonably
withheld) and they are included on Customer's list of
authorized persons having access to the Media Center, as set
forth below. Upon expiration or termination of this Agreement,
Customer agrees to promptly remove Customer's Equipment.
Customer's failure to do so, or failure to provide Vyvx with
instructions regarding the disposition of Customer's Equipment
within forty-five (45) days of the expiration or termination
of the Agreement shall be deemed to be an abandonment of
Customer's Equipment, and Vyvx shall dispose of Customer's
Equipment in its sole discretion.
(c) The Media Center is staffed on a 24 x 7 basis. For security of
the Media Center and in the best interests of Vyvx and its
customers, access to the Media Center is restricted. Customer
shall have access to Customer's Equipment for normal
maintenance purposes from 08:00 to 17:00 local time, weekends
and holidays excluded, and Customer shall attempt to give the
Media Center a minimum of 24 hours advance notice. Customer
shall have access to Customer's Equipment for emergency
servicing purposes at any time, and Customer shall give a
minimum of one hour advance notice. Customer shall provide the
Media Center with a written list of all of Customer's
employees (or approved contractors) who are authorized to have
access to Customer's Equipment, and Customer shall update this
list as needed. The Media Center may deny access to any person
whose name is not on Customer's list of authorized persons.
Schedule E Page 3
(d) Any additional rack space required or requested by Customer
shall be subject to availability and to additional charge.
5. OPERATIONAL NOTICES. If Customer has any technical problems with
Customer's Equipment or the Services, Customer may call the Media Center
at 0 (000) XXX-XXXX on a 24 x 7 basis. Vyvx will communicate with Customer
as promptly as possible regarding any technical problems with Customer's
Equipment or the Services. For purposes of these communications from Vyvx,
Customer agrees that Vyvx should contact the operational contacts of
Customer, in the following order:
Customer Contact Xx. 0 Xxxxxxxx Xxxxxxx Xx. 0
Name: Name:
Title: Title:
Telephone: Telephone:
Mobile: Mobile:
Pager: Pager:
Fax: Fax:
Customer Contact No. 3
Name:
Title:
Telephone:
Mobile:
Pager:
Fax:
Customer shall update its list of Operational Contacts with Vyvx as
needed. Vyvx shall not be responsible for any interruptions of Services or
other technical problems with Customer's Equipment, Customer's signal(s)
or the Services in the event that Vyvx has attempted to communicate with
Customer's Operational Contacts according to the information provided by
Customer to Vyvx and Vyvx is unable to establish communications with them.
6. Premium Services. Other Premium Services are available from Vyvx but are
not included in this Schedule E. Such Premium Services may be ordered at a
later date subject to the execution of an amended Schedule E.
IN WITNESS WHEREOF the parties have executed this Agreement by the hand of their
respective duly authorised officers.
Schedule E Page 4
Vyvx Broadband Media, a Business Unit (Customer)
of Xxxxxxxx Communications, LLC
By: ________________________________ By: __________________________________
Name: _______________________________ Name: _______________________________
Title: ______________________________ Title: ______________________________
Date: _______________________________ Date: _______________________________
Schedule E Page 5
Appendix-1
Server Equipment List
Schedule E Page 6
Appendix 2
Customer Equipment List
--------------------------------------------------------------------------------
Rack
Space Voltage Wattage
Equipment Qty Manufacturer Model # Asset ID # Req's Req's Req's
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Schedule E Page 7
Appendix 3
Facility Service Level Agreement
Section 1. Outage Credits
Facility Service Availability. Facility Service Availability is a measurement of
the percent of total time that Facility Service is operative when measured over
a thirty (30) consecutive day (720 hour) period. Facility Service is considered
inoperative when there has been a loss of AC power to the customer's rack(s).
For Facility Services on Xxxxxxxx' Network, availability shall be 99.999%,
measured over a thirty (30) day period. Availability for Third Party Services
(if applicable) is established by the third party providing such service.
Outage Credits. Customer acknowledges the possibility of an unscheduled,
continuous and/or interrupted period of time during which Facility Service fails
to conform to the technical specifications set forth in Section 2 below (an
"Outage"). An Outage shall begin upon the earlier of Xxxxxxxx' actual knowledge
of the Outage, or Xxxxxxxx' receipt of notice from the Customer of the Outage.
In the event of an Outage, Customer shall be entitled to a credit ("Outage
Credit") upon Xxxxxxxx' receipt of Customer's written request for such Outage
Credit. The amount of the Outage Credit for Facility Service shall be an amount
equal to ten (10%) percent of the monthly recurring charge for rack charges and
additional power, as set forth Section 7.1 of Exhibit A, of the rack(s) affected
by such Outage.
Remedy. The Outage Credit as set forth in this Section 1 shall be the sole and
exclusive remedy of Customer in the event of an Outage and under no
circumstances shall an Outage be deemed a default under the Agreement.
Limitations. Customer shall not receive an Outage Credit if the Outage is: (i)
caused by Customer's failure to utilize both power feeds provided to each rack
by Xxxxxxxx; (ii) caused by Customer or others authorized by Customer to use the
Services under the MSA, or those parties' failure to follow Xxxxxxxx' procedures
as communicated to customer; (iii) due to the failure of facilities, equipment,
systems or connections that are not provided by Xxxxxxxx; (iv) the result of
scheduled maintenance per Xxxxxxxx' standard PNMP process where Customer has
been notified of scheduled maintenance in advance; or (vi) due to a Force
Majeure event as defined in Section 14 of the Standard Terms and Conditions
document.
Credit Payment. Outage Credits shall be credited on Customer's next monthly
invoice for the affected Service or, if the Agreement has expired or terminated,
paid to Customer promptly following the expiration or termination of the
Agreement.
Section 2. Technical Specifications For Facility Service
Power. Xxxxxxxx shall provide backup electrical power and shared use of an
emergency generator that is maintained to support the Premises. Such backup
power shall be equal to the power specified in Customer's Facility Service Order
for the Facility Services. Xxxxxxxx shall provide as standard service, redundant
dedicated 20 amp, 110/208 volt AC circuits, connected to separate
uninterruptible power systems. Customer must properly employ both circuits as
redundant feeds (rather than multiple feeds) to meet facility service
availability requirements. Customer is responsible for managing power demand
within each rack.
Premises Environmental and Alarm Standards. Xxxxxxxx shall provide: (a)
monitored smoke and fire alarms; (b) lighting; (c) ground bus and cable
interconnect; (d) grounding conductors between the grounding grid and Customer's
Equipment; (e) interconnect signal and power cabling between Xxxxxxxx and
Customer; (f) raised flooring for air distribution and cable entry into customer
rack(s) and (g) general and administrative services directly relating to the
provision of the above listed Facility Services. Xxxxxxxx shall maintain ambient
temperature between 60(Degree)F and 75(Degree)F with an objective of 20-65%
(non-condensing) humidity and shall monitor deviations from such temperature
range.
Use of Power. Maximum AC power provided to Customer as A&B power shall be rated
for the rating of a redundant feed. Customer shall be responsible for load
management within Customer rack(s) to avoid power demand in excess of rated
capacity of a redundant feed of 20 amps at 110/208 volts AC.
Customer's Equipment Specifications. Customer shall only install or use
Equipment designed to operate satisfactorily between 60(Degree)F and 75(Degree)F
with 20-65% (non-condensing) humidity. Customer shall notify Xxxxxxxx of any
significant planned Equipment additions or deletions prior to any installation
or removal by Customer (this includes any addition or removal of a shelf or rack
or any equipment on a shelf or rack). Customer shall ensure that its Equipment
and surrounding area does not pose safety hazards to personnel.
Miscellaneous Restrictions. Customer shall not be allowed to:
o Store anything outside of the assigned rack space
o Place or store printed material, packaging, cleaning supplies, or any
other non-data processing equipment within the rack space.
Schedule E Page 8
