Exhibit 10.6
MICROSOFT CONSULTING SERVICES
MASTER SERVICE AGREEMENT
This Agreement is by and between Microsoft Corporation, a Washington corporation
("MS") acting through its Microsoft Consulting Services division ("MCS"), and
Digex, Incorporated a Maryland corporation ("Company") effective as of the later
of the two dates on the signature page.
1. Consulting Services and Fees.
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a. MCS shall perform the services for Company specified on one or more Work
Orders in the form attached hereto as Exhibit A that are agreed upon by the
parties in writing from time to time. Nothing in this Agreement shall obligate
either party to enter into any Work Order. MCS consultants will be required to
attend MS events and various training programs from time to time, and Company
services shall be scheduled accordingly.
b. Company agrees to pay MCS the hourly rates identified on each Work Order
for services rendered pursuant to the Work Order, and the reasonable
out-of-pocket travel and living expenses incurred by MCS consultants during
performance of a Work Order. MCS shall not change its hourly rates during the
term of a Work Order, but may adjust rates prior to entering any new Work Order
by giving Company advance notice. Rates do not include taxes, levies, duties,
governmental charges or expenses. If MS is required to pay any of the foregoing
based on services provided under this Agreement, such taxes, levies, duties,
governmental charges and expenses will be billed and paid by Company, excluding
taxes based on MS' income.
2. Rights in Programs and Data. The rights in programs and data shall be
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specified on each Work Order.
3. Confidentiality/Non-Solicitation.
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a. MS and Company agree that any and all information identified by the other
as "Confidential" and/or "Proprietary", or which, under all of the
circumstances, ought reasonably to be treated as Confidential and/or
Proprietary, will not be disclosed to any third person without the express
consent of the other party for a period of five (5) years following the
disclosure of the Confidential Information. The terms and conditions of this
Agreement are confidential. These confidentiality obligations shall not apply to
any information or development which: (i) is or subsequently becomes available
to the general public other than through a breach by the receiving party; (ii)
is already known to the receiving party before disclosure by the disclosing
party; (iii) is developed through the independent efforts of the receiving
party; or (iv) the receiving party rightfully receives from a third party
without restriction as to confidentiality or use.
b. The terms of confidentiality under this Agreement shall not be construed to
limit either party's right to independently develop or acquire products without
use of the other party's Confidential Information. Further, either party shall
be free to use for any purpose the residuals resulting from access to or work
with such Confidential Information, provided that such party shall maintain the
confidentiality of the Confidential Information as provided herein. The term
"residuals" means technical information related to computer software technology
in non-tangible form, which may be retained by persons who have had access to
the Confidential Information, including ideas, concepts, know-how or techniques
contained therein. Neither party shall have any obligation to limit or restrict
the assignment of such persons or to pay royalties for any work resulting from
the use of residuals. However, the foregoing shall not be deemed to grant to
either party a license under the other party's copyrights or patents.
c. During the term of this Agreement and for a period of one (1) year
following the Expiration Date of a Work Order, neither MS nor Company shall
directly solicit employment of any employee of the other who is directly
involved in the performance of such Work Order.
4. Warranty. MS warrants that during the term of any Work Order hereunder, the
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services performed under the Work Order will be performed using generally
accepted industry standards and practices.
5. Limitation of Warranty. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF
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ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO
THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, THE PERFORMANCE OF
MATERIALS OR PROCESSES DEVELOPED OR PROVIDED UNDER THIS AGREEMENT, OR AS TO THE
RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL IMPLIED WARRANTIES OF
MERCHANT-
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ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MS SHALL NOT BE LIABLE FOR ANY
SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS
IDENTIFIED OR REFERRED TO COMPANY BY MS DURING ANY ASPECT OF A PROJECT UNDER ANY
WORK ORDER, OR OTHERWISE, EXCEPT IF SUCH THIRD PARTY SERVICES ARE PROVIDED UNDER
WRITTEN AGREEMENT WITH MS.
6. Limitation of Liability.
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a. MS' liability to Company under this Agreement and with respect to any
services contemplated by this Agreement shall be limited to the amount actually
paid by Company to MS.
b. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING BUT NOT
LIMITED TO LOST PROFITS) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH
OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL
PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term and Termination.
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a. This Agreement shall remain in effect until terminated as provided
hereunder. Company may terminate this Agreement or any Work Order without cause
at any time upon thirty (30) days prior written notice to MS.
b. Either party may terminate this Agreement or any Work Order if the other
party is in material breach or default of any obligation hereunder, which breach
or default is not cured within thirty (30) days of written notice from the other
party.
c. The terms of Sections 2, 3, 6, 7(c), 7(d), 9 and 10 shall survive the
termination or expiration of this Agreement.
d. Upon termination of this Agreement or any Work Order, each party shall
return or destroy all Confidential Information obtained from the other party and
copies thereof; and Company shall pay all of MS' fees, expenses and other costs
payable by Company pursuant to Section 1(b) which have accrued through the date
of termination.
8. Insurance.
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a. At all times when MS will be performing services at the premises of Company
pursuant to the terms of this Agreement, MS agrees to procure and maintain the
following insurance coverage:
(i) Commercial General Liability covering bodily injury and property
damage liability with a limit of not less than $1,000,000 each occurrence;
(ii) Workers' Compensation insurance (or maintenance of a legally permitted
and governmentally approved program of self-insurance) covering MS employees
pursuant to applicable state workers' compensation laws for work related
injuries suffered by employees of MS; and
(iii) Employer's Liability insurance with limits of not less than $1,000,000
each accident.
b. Upon request, MS will provide Company with certificates of insurance
evidencing that the above coverage is in full force and effect.
9. Notices. All notices, authorizations, and requests in connection with this
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Agreement shall be deemed given on the day they are (i) deposited in the mails,
postage prepaid, certified or registered, return receipt requested; or (ii) sent
by air express courier (e.g., DHL, Federal Express or Airborne), charges
prepaid, return receipt requested; and addressed as set forth below:
For MS:
Xxxx Xxxxx, Managing Consultant
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0000 Xxxxxxxxx Xxxxxx, XX
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Xxxxxxxxxx, XX 00000
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Phone: (000) 000-0000
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Fax: (000) 000-0000
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CC: Law & Corporate Affairs
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
For Company:
Xxxx Xxxxxxxx, Vice President - General Manager
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0000 Xxxxxxxx Xxxxx Xxxx
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Xxxxxxxxxx, XX 00000
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Phone: (000) 000-0000
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Fax: (000) 000-0000
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10. Miscellaneous
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a. Assignment. Neither party may assign this Agreement, in whole or in part,
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without the express written consent of the other party.
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b. Applicable Law/Attorney Fees. This Agreement shall be governed by the laws
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of the State of Washington, U.S.A. If either party employs attorneys to enforce
any rights arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover its reasonable attorneys' fees, costs and other
expenses.
c. Entire Agreement. This Agreement and any Work Orders constitute the entire
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agreement between MS and Company, and merge all prior and contemporaneous
communications with respect to the subject matter hereof. The terms on any
purchase order or other form submitted by Company shall not apply to this
Agreement. This Agreement shall not be modified except by later written
agreement signed by both parties. In the event of a conflict between the terms
of this Agreement and any Work Order hereunder, the terms of this Agreement
shall control.
d. Compliance with Laws. Each party shall comply with all applicable laws and
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regulations. Company acknowledges that the Developments, services and materials
acquired hereunder are subject to the export control laws and regulations of the
United States, and any amendments thereof. Company confirms that with respect to
such Developments, services and materials, it will not export or re-export them,
directly or indirectly, either to (i) any countries that are subject to U.S.
export restrictions (including, but not limited to, Cuba, the Federal Republic
of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North Korea, and
Syria; or (ii) any end-user whom Company knows or has reason to know will
utilize them in the design, development or production of nuclear, chemical or
biological weapons.
e. Severability/Waiver. If any provision of this Agreement shall be held by a
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court of competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect. No waiver of any
breach of any provision of this Agreement shall constitute a waiver of any
other breach of the same or any other provision hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
f. Independent Contractor. MS shall act at all times as an independent
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contractor, and shall be responsible for any and all social security,
unemployment, Workers' Compensation and other withholding taxes for any and all
of its employees. MS may use subcontractors to perform services under this
Agreement.
8. Cost or Pricing Data. MS will not, under any circumstances, accept work that
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would require the submission of cost or pricing data or be obligated to provide
such data, including without limitation, any modifications to any Work Order or
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
originals.
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000, X.X.X.
/s/ Xxxx Xxxxx
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Signature
Xxxx Xxxxx
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(Print Name)
Managing Consultant
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Title
8/13/96
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Date
DIGEX, INC.
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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(Print Name)
VP GM Internet Server Products
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Title
8/4/96
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Date
3
EXHIBIT A
MICROSOFT CONSULTING SERVICES
MASTER SERVICE AGREEMENT
WORK ORDER 001 (MCSDC 12913)
This Work Order is made pursuant to the Microsoft Consulting Services Master
Service Agreement (the "Agreement") effective on August 13, 1996 by and between
Digex, Incorporated ("Company") and Microsoft Corporation ("MS") and is
incorporated therein by reference.
1. Services. MCS shall perform the services identified below for Company. Dates
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provided herein are estimates only.
MCS will provide to assist Company architect,
design, and implement Microsoft technologies. In that, the EPM will be the
primary contact to Company for all Microsoft related needs. In conjunction with
this, the EPM will:
. Assist Company with strategic and tactical planning for implementing
Microsoft technologies in development of a "Web Farm"
. Assist Company to establish a Microsoft Windows NT Server architecture to
support the needs of Company in architecting a Microsoft Internet
Information Server hosting solution.
. Assist Company to identify various staffing needs to support the "Web
Farm".
. Assist Company with the installation and configuration of Microsoft
Internet Information Server.
. Provide technology transfer to company employees.
. Assist Company to identify various courses in which Company employees
should enroll.
.
. Provide a mechanism to contact Microsoft corporate resources which should
be involved in the project(s).
Most of this work will be done on-site at Company's facilities while some of the
work will require some off-site activities. During this time, all consultants
(both MCS and SP) will have access to Company facilities.
MCS will provide, *
EPM and Company in the above activities. Specifically, the SP resources will be
tasked with providing hands-on support for designing, installing, configuring,
and, initially, operating the Microsoft Windows NT Server "Web Farm"
established. As the "Web Farm" construction and configuration proceeds, these SP
resources will be assigned appropriate activities to support that environment.
* . If Company has that need and requests that MCS provide that
service, Company and MCS will work to provide a "profile" of that service and
enter into a separate work order for that service.
The resource to be assigned to this engagement from MCS is Xx. Xxxxxx Xxxxxx,
Senior Consultant, MCPSE, MCPSD.
*
.
It should be noted that this is a beginning effort. There may be instances where
more resources are needed, depending on demand for the services provided by
Company. As those needs arise, MCS and Company will discuss the providing of
resources to meet those needs and MCS will develop good faith estimates for
providing additional resources.
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*Confidential treatment
Material omitted and filed separately with the Commission.
PAGE>
2. Rates. The hourly rates shown below shall be applicable to this Work Order.
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Any total fee stated herein is an estimate only.
*
plus all travel
and expenses. As is traditional in consulting services, all project-related
travel (including mileage and tolls), and miscellaneous expenses are to be
reimbursed by the client company. This cost represents a ten percent (10%)
discount from MCS standard rates for MCS personnel. This cost estimate is based
on the following staffing matrix:
*
MS shall invoice company monthly for services performed and expenses incurred
during the previous period. All invoices shall be net thirty (30) days. MS
invoices for payment should be directed to Company's representative for payment
at the address shown below:
Xx. Xxxx Xxxxxxxx
Vice President - General Manager
Digex, Incorporated
0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
FAX: 000-000-0000
3. *
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*Confidential treatment
Material omitted and filed separately with the Commission.
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4. Ownership and License.
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a. Any commercial off-the-shelf product of MS or a third party ("Commercial
Product") which is provided pursuant to this Work Order shall be licensed to
Company according to the terms of the end user license agreement packaged with
such product. All rights in any computer code or materials developed by or for
MS or Company independently of this Agreement that are provided pursuant to this
Work Order ("Pre-Existing Work") shall remain the sole property of the party
providing the Pre-Existing Work. All rights in any computer code or materials
(other than a Commercial Product or Pre-Existing Work) developed by MS and
provided to Company in the course of performance of this Work Order
("Developments") shall be jointly owned by Company and MS.
b. MS hereby grants Company a non-exclusive, perpetual, fully paid-up license
to use, reproduce and modify MS Pre-Existing Work for its internal business
operations. Company hereby grants MS a non-exclusive, perpetual fully paid-up
license to use, reproduce and modify any Pre-Existing Work of Company in the
performance of this Work Order. Each party shall be free to use, reproduce and
modify the Developments for any purpose whatsoever, without any obligation of
accounting or payment of royalties, provided that Company agrees to limit its
use, reproduction and modification of Developments for its internal business
operations. Company may sublicense the rights granted hereunder to its
affiliates (i.e., any entity controlling, controlled by, or under common
control with, Company). All rights not expressly granted, are reserved.
4. Miscellaneous.
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a. Company agrees to provide private work space for all consultants (such as
office space, conference rooms, cubicles, etc.) which may be required - such
work space to include normal facilities.
b. Company agrees to provide telephone service for all consultants. This would
include: i) Normal telephone service for in-coming and out-going calls for all
consultants and ii) Analog telephone service (for modem use) for selected
consultants.
c. Company agrees to provide proper access to Company facilities (such as
access cards/key) to the appropriate areas of Company to which consultants will
need entry.
d. Company agrees to provide computer equipment (such as standard desktop Intel
based workstations) connected to Company's network - to access file/print
capabilities and perform normal job related computer activities.
THEREFORE, the parties have executed this Work Order in duplicate originals.
MICROSOFT CORPORATION DIGEX INCORPORATED
One Microsoft Way 0000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxx Xxxxxxxx
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Signature Signature
Xxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
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Name (Print) Name (Print)
General Manager VP GM Internet Server Products
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Title Title
8/26/96 8/22/96
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Date Date
