Exhibit 10.13
VERIO
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
303 - 645 - 1900 (phone)
303 - 708 - 2490 (fax)
Verio Transit Service Agreement
This Transit Services Agreement ("Agreement") is made as of 1 August, 1999
between Verio Inc. ("VERIO") and the Customer identified below. Subject to the
terms and conditions of this Agreement, Customer agrees to purchase and VERIO
agrees to provide the services set forth in Paragraph (6) below (collectively,
the "Services").
1) Customer name and address:
Company Name: VIA Net Works, Inc.
Address: 00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: (000) 000 0000
Fax: (000) 000 0000
2) Company Contact and notice address:
Name: Xxx Xxxxxx
Address: As in 1) above.
Phone: (000) 000 0000
Fax: (000 000 0000
e-mail: xxxx@xxxx.xxx
A copy of any notice to Customer to be sent to (if different from above):
Name: Xxxx X. Xxxxxx
Address: As in 1) above
Phone: 000 000 0000
Fax: 000 000 0000
e-mail: xxxxx@xxxx.xxx
3) Billing Contact: Name: Xxxxxxx Xxxxxxxx
Address: As in 1) above.
Phone: (000) 000 0000
Fax: (000) 000 0000
e-mail: xxxxxxx@xxxx.xxx
4) Technical Contact:Name: Schon Xxxxxx
Address: As in 1) above.
Phone: (000) 000 0000
Fax: (000) 000 0000
e-mail: xxxxxxx@xxx.xxx
5) VERIO Contact: Name: Xxxx Xxxxxxx
Address: Verio Inc.
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Phone: (000) 000 0000
Fax: (000) 000 0000
e-mail: xxxxxxxx@xxxxx.xxx
A copy of any notice to Verio to be sent to:
Verio Inc.
Attn: Legal Department
0000 X. Xxxxxxx Xx., Xxx 000
Xxxxxxxxx, XX 00000
6) Services to be delivered:
Dedicated DS3 IP service at Verio's POP at 60 Xxxxxx, New York. Uncapped
DS3 interface with capability to burst to the full interface capacity.
Proactive monitoring of the connection 24 hours per day, 365 days per year.
Customer support available 24 hours per day, 365 days per year. Colocation
space for one rack at Verio's POP location at 60 Xxxxxx, New York
(additional terms to be defined).
Installation of the connection between Customer's and Verio's routers.
7) Customer supplied equipment/facilities and provision of local loops:
VIA will colocate one rack of equipment with Verio at 60 Xxxxxx.
(additional terms to be defined.)
No local loops required. This is a local interconnect at 60 Xxxxxx between
Customer's router and Verio's backbone router.
Customer will provide, at its cost, a DS3 interface on its router at 60
Xxxxxx for the Verio IP connection.
8) Service Date: Will enter date as soon as one is available from Qwest.
9) Fees and Charges:
a) One time fees:
Installation and startup fee for DS3 interface: $2,000
Colocation installation and startup: $1,000
b) Monthly recurring fees:
IP charges are based on measured usage of the interface.
Verio will sample the traffic level on the interface no less frequently
than once every 5 minutes. Traffic level is determined by the maximum
of the input or output level on the interface. Measured usage is the
traffic level under which 95% of samples fall over each calendar month.
If Customer orders a second Verio connection at a different Verio
backbone location, this price will apply to the sum of the measured
usage for the two locations, with each location being separately
measured as above.
Price per megabit:
Measured usage Price/Mbps
Less than 10 Mbps $1,100
10 Mbps to 19.99 Mbps $975
20 Mbps to 45 Mbps $900
45 Mbps - 75 Mbps $850
75 Mbps - 99.99 Mbps $800
100 Mbps and more $750
Minimum monthly fee for IP services is $3,300 per month. Services will
be billed monthly in arrears and will be based on the prior month's
actual usage.
Colocation monthly fee: $625.
10) Term Commitment: 36 months from the Commencement Date (defined below).
11) Duration of offer: Prices in this Agreement are good provided Customer
signs this Agreement by July 30, 1999.
12) Other Terms and Conditions
a) Customer Obligations: Customer shall be responsible for providing and
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maintaining, at Customer's cost, all equipment and space, conduit,
electrical power and environmental conditions required to enable VERIO
to offer the Services. Customer shall also be responsible for
provisioning local loops, unless VERIO has specifically agreed to
provide local loops as noted in paragraph (7) above. VERIO has no
responsibility for Customer provided equipment and/or facilities. In
the event that Customer's equipment and/or facilities impair Customer's
use of the Services, Customer shall nevertheless be liable for payment
for the Services. In addition, should Customer's use of or failure to
maintain its equipment and/or facilities cause or be likely to cause in
VERIO'S reasonable judgment hazard, interference or obstruction of
VERIO's or its suppliers' networks or services, VERIO shall be entitled
to terminate or suspend the Services.
b) Fees and Payment: Customer shall pay the fees and other charges
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("Service charges") set forth in Paragraph (9) for each Service as
provided in this Agreement. Billing for transport services shall
commence on the later of the Service Date, or the date that VERIO can
provide end to end connectivity ("Commencement Date"). In the event
that VERIO has failed to deliver the Services within forty-five (45)
days of the Service Date (other than as the result of a failure by
Customer to meet its obligations under Paragraph 12(a) or Customer's
failure to accept installation of the Services), Customer may, as its
sole and exclusive remedy for VERIO's failure to provide the Services,
terminate this Agreement. Service charges shall be invoiced monthly in
advance, unless otherwise agreed, and payment shall be due on the date
specified in the invoice ("Due Date"). Set-Up charges shall be invoiced
upon installation of Services by VERIO. Customer shall pay a late
payment charge equal to 1.5% (or the highest amount permitted by law,
whichever Is lower) per month or portion thereof on the outstanding
balance of any invoice remaining unpaid thirty (30) days after the Due
Date. Customer's failure to pay the invoiced amount in full by the end
of the thirty (30) day period shall entitle VERIO to suspend or
terminate the Services. Such suspension or termination shall not
relieve Customer of its obligation to pay the Service charges. Customer
agrees to pay VERIO its reasonable expenses, including attorney's fees
and collection agency fees, incurred in enforcing VERIO's rights under
this Agreement. Customer shall pay all federal, state, and local sales,
use, value added, excise, duty and any other taxes assessed with
respect to the Services, except taxes based on VERIO's net income. In
addition,
Customer may also be required to pay telco installation and
recurring fees, domain name registration fees, and other equipment
costs. All payments shall be in U.S. dollars.
c) Customer Representations and Warranties: Customer represents and
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warrants that: i) Customer has received all necessary permits, licenses
approvals and grants necessary to carry out the businesses in which
Customer is engaged; ii) Customer has complied and will comply for the
term of this Agreement with all laws, regulations, orders and statues
which may be applicable to Customer. A breach by Customer of this
paragraph 12(c) shall entitle VERIO to immediately terminate this
Agreement.
d) Use of Services: Customer shall use and permit the use of the Services
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solely for provision by Customer of data services, and not for the
provision of telephony services. Customer shall ensure that the
Services are not used for any unlawful purposes, or in violation of any
applicable law, regulation, order or statute. Customer's use of the
Services shall i) not interfere with or impair service over VERIO's or
its suppliers' networks or facilities; ii) impair privacy of any
communications over such networks or facilities; iii) cause damage of
any nature to VERIO's or its suppliers' assets. Customer shall at all
times adhere and shall ensure that its customers and authorized users
shall adhere to the VERIO Acceptable Use Policy located at
xxxx://xxx.xxxxx.xxx/xxxxx/xxxxxx.xxxx as amended from time to time by
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VERIO, with amendments becoming effective upon posting of the revised
policy at the URL. A breach by Customer of this paragraph 12(d) shall
entitle VERIO to take immediate corrective action, including
disconnection or discontinuance of any and all service, and/or
termination of this Agreement.
e) Term and Termination: This Agreement shall commence on the date hereof
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and continue through the end of the Term Commitment. This Agreement
shall be automatically renewed on a month to month basis at the end of
the Term Commitment until terminated by either party on sixty (60) days
prior written notice to the other party. This Agreement may be
terminated by either party if (i) the other party is in breach or
default of any term of this Agreement and fails to cure such breach or
default within thirty (30) days from the date of written notice
specifying such breach or default or (ii) the other party becomes
insolvent, fails to pay its debts as they become due, or becomes the
subject of any proceeding in bankruptcy, liquidation, dissolution,
receivership, attachment, or composition or general assignment for the
benefit of creditors. In the event that this agreement is terminated by
VERIO as provided in Paragraphs 12(a), (c), (d), or (e) by Customer
(other than for a breach of this Agreement by VERIO) prior to the end
of the Term Commitment, Customer will be required to pay for each month
remaining in the Term Commitment either i) for fixed rate contracts,
75% of VERIO's standard monthly charge, or ii) for burst transit
contracts, 40% of the full utilization rate for the circuit. Customer
will also be required to pay to VERIO any charges or costs incurred by
VERIO in terminating local loop facilities (if any) provided by VERIO
hereunder. VERIO reserves the right to change the rates it charges for
Services at the end of the Term Commitment. VERIO will provide sixty
(60) days notice of any such change. Any IP address space delegated by
VERIO to the Customer must be returned to VERIO within three months of
termination of this Agreement.
f) Provision of Services: VERIO exercises no control over, and accepts no
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responsibility for, the content of the information passing through
VERIO's host computers, network hubs and points of presence.
THE SERVICES AND HARDWARE AND SOFTWARE ARE PROVIDED BY VERIO "AS IS".
VERIO MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT IN ELATION TO THE
PROVISION OF THE SERVICES OR ANY SOFTWARE OR EQUIPMENT VERIO
PROVIDES,OR PERTAINING TO THE SECURITY OR DELIVERY OF CUSTOMER'S
TRAFFIC, OR THAT ANY ROUTING INFORMATION OR OTHER INFORMATION PROVIDED
IS ACCURATE AND COMPLETE. CUSTOMER ASSUMES
TOTAL RESPONSIBILITY AND RISK FOR CUSTOMER'S AND ITS CUSTOMERS' AND
AUTHORIZED USERS USE OF THE SERVICES. NONE OF VERIO, ITS EMPLOYEES,
AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE
INTERRUPTED OR WILL BE ERROR FREE. VERIO IS NOT LIABLE FOR THE CONTENT
OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY
CUSTOMER OR ANY OF ITS CUSTOMERS VIA THE SERVICE(S) PROVIDED BY VERIO.
g) VERIO is acting only as a reseller of any hardware and software
offered under this Agreement, which was manufactured or licensed by a
third party ("Manufacturer"). VERIO shall not be responsible for any
changes in Service(s) that cause hardware or software to become
obsolete, require modification or alteration, or otherwise affect the
performance of the Services. Any malfunction or manufacturer's defects
of equipment either sold or provided by VERIO to Customer or purchased
directly by Customer in connection with the Service(s) will not be
deemed a breach of VERIO's obligations under this Agreement. Customer
shall use its best efforts to protect and keep confidential all
intellectual property provided by VERIO to Customer and shall make no
attempt to copy, alter, reverse-engineer, or tamper with such
intellectual property or to use it other than in connection with the
Services and in accordance with Manufacturer's provided terms and
conditions.
h) Contingency and Authorizations: VERIO's obligation to provide Services
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is contingent upon (i) VERIO's ability to obtain any and all licenses,
waivers, consents, registrations and approvals, (provided, however,
that Verio shall use commercially reasonable best efforts to obtain and
maintain all such licenses, waivers, consents, registrations and
approvals necessary to enable delivery of the Services hereunder) (ii)
VERIO's ability to obtain any necessary telecommunications services or
facilities. VERIO reserves the right to modify, suspend or terminate
the provision of Services if VERIO is reasonably required to do so in
order to comply with governmental requirements
i) Indemnification. Customer agrees to indemnify, save harmless, and
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defend VERIO and all employees, officers, directors and agents of VERIO
(collectively "indemnified parties") from and against any and all
claims, damages, losses, liabilities, suits, actions, demands,
proceedings (whether legal or administrative) and expenses (including
but not limited to reasonable attorneys' fees) threatened, asserted, or
filed by a third party against any of the indemnified parties arising
out of or relating to the use of the Services by Customer or its users,
including any violation of the VERIO Acceptable Use Policy by any of
them and any claims arising from the placement or transmission or
content of any message on the Internet by Customer or its users.
j) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
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ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF
PROFITS, REVENUE, OR DATA (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBLITY OF SUCH DAMAGES) TO THE OTHER PARTY OR ANY THIRD PARTY, IN
CONNECTION WITH THE SERVICES OR OTHER MATTERS COVERED BY THIS
AGREEMENT, WHETHER SUCH CLAIM IS BASED ON AN ACTION IN CONTRACT OR TORT
OR STRICT LIABILITY OR OTHER LEGAL THEORY. With the exception of any
indemnity obligation or a breach of paragraph (l) below, in no event
shall either party's liability for any damages, losses and causes of
actions whether in contract or tort (including negligence or otherwise)
exceed the actual dollar amount paid or payable by Customer for the
Services which gave rise to such damages, losses and causes of actions
during the 12-month period prior to the date the damage or loss
occurred or the cause of action arose. Neither party shall be liable
for failure or delay in performing its obligations hereunder if such
failure or delay is due to circumstances beyond its reasonable control,
including, without limitation, acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, interruption
or delay in telecommunications
services or inability to obtain raw materials, supplies, or power used
in or equipment needed for provision of the Services. In the event that
the Services are subject to chronic Interruptions (meaning that there
occurs Interruptions of more than four hours in the aggregate in any
thirty (30) day period or three (3) or more Interruptions in any thirty
(30) day period) during the term of this Agreement, Customer may on
notice to VERIO terminate this Agreement without any further liability
to VERIO, apart from the obligation to pay for Services rendered to the
date of the termination. For the purposes of this paragraph (j),
"Interruption" means a service outage that is not due to scheduled
maintenance or to any action or inaction on the part of Customer.
k) Miscellaneous: The validity, interpretation, enforceability, and
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performance of this Agreement shall be governed by and construed in
accordance with the law of the State of Colorado. This Agreement may
not be amended except with the written consent of the parties. No
failure to exercise and no delay in exercising any right, remedy, or
power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, or power hereunder preclude
any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity. The
waiver by any party of the time for performance of any act or condition
hereunder shall not constitute a waiver of the act or condition itself.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, and permitted assigns.
Customer may not assign this Agreement without the prior written
consent of VERIO. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void,
the remainder of this Agreement shall remain in full force and effect.
All notices required or permitted under this Agreement must be in
writing and must be delivered by a method providing for proof of
delivery (including express courier, and facsimile or email if receipt
is acknowledged by the recipient) to the addresses set forth in
Paragraphs (1) and (2) above, or such other addresses as may be
notified by the parties. Any notice or request shall be deemed given on
the date of delivery.
l) Confidentiality: Each party agrees to keep confidential and to use only
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for the purposes of performing obligations under this Agreement, (i)
any proprietary or confidential information of the other party
disclosed pursuant to this Agreement which is appropriately marked as
confidential or which would reasonably be considered to be of a
confidential nature ("Confidential Information") and (ii) the terms of
this Agreement and all negotiations relating thereto. The obligation of
confidentiality shall not apply to information which is publicly
available through authorized disclosure, is known by the receiving
party at the time of disclosure as evidenced by a writing in the
possession of the receiving party at the time of disclosure, is
rightfully obtained from a third party who has the right to disclose
it, or which is required by law to be disclosed. Upon any termination
of this Agreement, the receiving party shall return all Confidential
Information of the disclosing party, and all copies thereof, in the
possession or control of the receiving party.
m) Entire Agreement: This agreement supersedes all previous
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representations, understandings or agreements and shall prevail
notwithstanding any variance with the terms and conditions of any order
submitted by Customer.
Accepted by:
Customer: VERIO:
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xxxxx X. Xxxxxxxx
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Name & Title: Xxxx X. Xxxxxx, V.P. Name & Title: Xxxxx X. Xxxxxxxx
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Date: 5 August 1999 Date: Vice President &
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General Counsel
Tax ID Number:
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