EXHIBIT 10.5
UUDIRECT T3 TIERED AGREEMENT
Service1 Monthly Fee Start-up Charge2
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/ / 3 Mbps port [$ * ]
/ / 6 Mbps port [$ * ]
/ / 9 Mbps port [$ * ]
/ / 12 Mbps port [$ * ]
/ / 15 Mbps port [$ * ]
/ / 18 Mbps port [$ * ]
/ / 21 Mbps port [$ * ]
/ / 24 Mbps port [$ * ]
/ / 27 Mbps port [$ * ]
/ / 30 Mbps port [$ * ]
/ / 33 Mbps port [$ * ]
/ / 36 Mbps port [$ * ]
/ / 39 Mbps port [$ * ]
/X/ 45 Mbps port [$ * ]
PRICES ABOVE DO NOT INCLUDE ANY TELCO LINE CHARGES, EQUIPMENT COSTS,3 OR NETWORK
APPLICATIONS FEES.4
TERM COMMITMENT5
/X/ 1-year Term
PAYMENT
If a Purchase Order is required, return the PO with this form and
provide PO#: _______________
BILLING PREFERENCE / / Bill my existing UUNET account number: ______________
/ / Xxxx to a new account number
PLEASE SIGN THIS AGREEMENT ON THE REVERSE.
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1 Customer must provide 60 days' prior written notice to UUNET before
downgrading service to a lower tier. While Customer can resell Internet
connectivity, Customer cannot resell the service in its entirety to another
person or entity without the express prior written consent of UUNET. If
Customer resells Internet connectivity to end users, Customer is responsible
for: (i) providing the first point of contact for end user support inquiries;
(ii) providing software fulfillment to end users; (iii) running its own
primary and secondary domain name service ("DNS") for end users; (iv)
registering end users' domain names; (v) using BGP routing to the UUNET
Network, if requested by UUNET; (vi) collecting route additions and changes,
and providing them to UUNET; and (vii) registering with the appropriate
agency all IP addresses provided by UUNET to Customer that are allocated to
end users.
2 To ensure proper installation, UUNET will order all telco lines. A $500
surcharge applies to Customer-ordered lines. Installation may be scheduled
between the hours of 8AM and & 7PM ET Monday through Friday (excluding
holidays). If Customer requires installation outside of these hours UUNET
will charge an additional $500 fee.
3 UUNET is acting only as a reseller with respect to the hardware and
software offered under this Agreement ("Equipment"), which was manufactured
by a third party ("Manufacturer"). UUNET will provide first-level support for
Equipment, but will not repair or replace Equipment. Customer's use of the
Equipment is subject to the terms and conditions of the Manufacturer's end
user agreement. Should Customer purchase Equipment from UUNET, UUNET will
ship the current UUNET-tested version of the Equipment to the Customer.
4 Descriptions of the domain name, mail, new services, and other network
applications available in connection with this service, and the pricing and
additional terms applicable to these services, are set forth in the Network
Applications Fee Schedule available at xxx.xx.xxx/xxxxx. UUNET reserves the
right to change the Network Applications Fee Schedule from time to time,
effective upon posting of the changes to the URL or other notice to Customer.
5 Discount applicable only to Monthly Fee. At the conclusion of the Term
Commitment, this Agreement shall continue in effect on a month-to-month basis
at UUNET's then-current list price for the service.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
GENERAL TERMS AND CONDITIONS
1. UUNET Technologies, Inc. ("UUNET") exercises no control over, and accepts
no responsibility for, the content of the information passing through
UUNET's host computers, network hubs and points of presence (the "UUNET
Network"). EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 BELOW, UUNET (a)
MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
SERVICES AND EQUIPMENT IT IS PROVIDING, AND (b) DISCLAIMS ANY WARRANTY OF
TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. Use of any information obtained via the UUNET Network is at
Customer's own risk. UUNET specifically denies any responsibility for the
accuracy or quality of information obtained through its services. UUNET
shall not be liable for any delay or failure in performance due to Force
Majeure, which shall include without limitation acts of God, earthquake,
labor disputes, changes in law, regulation or government policy, riots,
war, fire, epidemics, acts or omissions of vendors or suppliers, equipment
failures, transportation difficulties, or other occurrences which are
beyond UUNET's reasonable control.
2. All use of the UUNET Network and the service must comply with the
then-current version of the UUNET Acceptable Use Policy ("Policy") which is
made a part of this Agreement and is available at the following URL:
xxx.xx.xxx/xxxxx. UUNET reserves the right to amend the Policy from time to
time, effective upon posting of the revised Policy at the URL or other
notice to Customer. UUNET reserves the right to suspend the service or
terminate this Agreement effective upon notice for a violation of the
Policy. Customer agrees to indemnify and hold harmless UUNET from any
losses, damages, costs or expenses resulting from any third party claim or
allegation ("Claim") arising out of or relating to use of the service,
including any Claim which, if true, would constitute a violation of the
Policy.
3. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT FROM CUSTOMER'S OR CUSTOMER'S
USERS' USE OF THE UUNET NETWORK AND THE SERVICE INCLUDING, WITHOUT
LIMITATION, ANY SUCH DAMAGES FOR LOSS OF DATA RESULTING FROM DELAYS,
NON-DELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. Notwithstanding
anything to the contrary stated in this Agreement, Xxxxxxxx's sole remedies
for any claims relating to this service or the UUNET Network are set forth
in Section 7 below.
4. Networks assigned from a UUNET net-block are non-portable. Network space
allocated by UUNET must be returned to UUNET in the event Customer
discontinues service.
5. Payment is due 30 days after date of invoice. Accounts are in default if
payment is not received within 30 days after date of invoice. If payment is
returned to UUNET unpaid Customer is immediately in default and subject to
a returned check charge of $25 from UUNET. Accounts unpaid 60 days after
date of invoice may have service interrupted or terminated. Such
interruption does not relieve Customer of the obligation to pay the Monthly
Fee. Only a written request to terminate Customer's service relieves
Customer of the obligation to pay the Monthly Fee. Accounts in default are
subject to an interest charge on the outstanding balance of the lesser of
1.5% per month or the maximum rate permitted by law. Customer agrees to pay
UUNET its reasonable expenses, including attorney and collection agency
fees, incurred in enforcing its rights under this Agreement. Prices are
exclusive of any taxes which may be levied or assessed upon the Equipment
or services provided hereunder. Any such taxes shall be paid by Customer.
If Customer is exempt from otherwise applicable taxes, Customer must submit
its tax identification number and exemption certificate at the same time it
submits this Agreement.
6. Billing for UUNET service will commence when a UUNET hub and a functioning
telephone circuit are prepared to route IP packets to Customer's site. The
Start-up Charge is invoiced upon acceptance of this Agreement by UUNET.
Charges for Equipment shall be invoiced upon shipment. Service is invoiced
monthly in advance, and may be canceled only by 60 days' advance written
notice. In the
event of early cancellation of a Term Commitment, Customer will be required
to pay 75% of UUNET's standard Monthly Fee for each month remaining in the
Term Commitment. UUNET reserves the right to change the rates by notifying
Customer 60 days in advance of the effective date of the change.
7. The Service Level Agreement ("SLA") for this service, which is made a part
of this Agreement, is set forth at xxx.xx.xxx/xxxxx and applies only to
customers agreeing to a Term Commitment of at least one year. UUNET
reserves the right to amend the SLA from time to time effective upon
posting of the revised SLA to the URL or other notice to Customer;
provided, that in the event of any amendment resulting in a material
reduction of the SLA's service levels or credits, Customer may terminate
this Agreement without penalty by providing UUNET written notice of
termination during the 30 days following notice of such amendment. The SLA
sets forth Customer's sole remedies for any claim relating to this service
or the UUNET Network, including any failure to meet any guarantee set forth
in the SLA. UUNET's records and data shall be the basis for all SLA
calculations and determinations. Notwithstanding anything to the contrary,
the maximum amount of credit in any calendar month under the SLA shall not
exceed the Monthly Fee and/or Start-up Charge which, absent the credit,
would have been charged for UUNET service that month (collectively the
"UUNET Fees"); provided, that the maximum amount of credit for failure to
meet the Availability Guarantee shall not exceed the sum of (a) the UUNET
Fees, plus (b) the telephone company line charge which, absent the credit,
would have been charged for such month.
8. Neither party may use the other party's name, trademarks, tradenames or
other proprietary identifying symbols without the prior written approval of
the other party. Neither party may assign or transfer any of its rights or
obligations under this Agreement without the express, prior written consent
of the other party; provided, that either party may assign or transfer this
Agreement to any affiliate of such party upon advance written notice to the
other party. No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right or remedy granted hereby or by law.
9. MCI WORLDCOM, Inc. or its affiliates or subcontractors may perform some or
all of UUNET's duties and/or obligations hereunder.
10. This Agreement supersedes all previous representations, understandings or
agreements and shall prevail notwithstanding any variance with terms and
conditions of any order submitted. Acceptance of this Agreement by UUNET
may be subject, in UUNET's absolute discretion, to satisfactory completion
of a credit check. Activation of service shall indicate UUNET's acceptance
of this Agreement. Use of the UUNET Network constitutes acceptance of this
Agreement.
AGREED AND ACCEPTED BY CUSTOMER:
Signature: /s/ Xxxx Xxxxxxxxxx Company Name: FASTNET
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Printed Name: Xxxx Xxxxxxxxxx Address: 0000 Xxxxxxxx Xx. Xxxxx 000
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Title: EVP, Operations Bethlehem, PA 18017
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Date: 8/11/99 Telephone 000-000-0000 Fax 000-000-0000
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