EXHIBIT 10.16
AGREEMENT FOR SERVICES
This Agreement is made and entered into as of June 27, 1997 ("Effective Date")
by and between E-Stamp ("Customer") and Pilot Network Services, Inc. ("Pilot").
1. Term of Agreement. Unless earlier terminated as provided in this
Agreement, the term of this Agreement will commence on the Effective Date and
will continue for a period of 12 months, and shall be automatically renewed for
successive one-year terms thereafter.
2. Services to be provided by Pilot.
(a) Pilot agrees to provide the services set forth on the attached
Schedule(s).
(b) The services set forth in this Section 2 will be provided to
Customer at rates and charges as indicated on the attached Schedule(s); provided
Pilot shall have the right to change the rates and charges to be charged for
such services by notifying Customer 90 days in advance of the effective date of
the change.
(c) Customer represents and warrants that Pilot's services will only
be used for lawful purposes. Customer understands that transmission of any
material in violation of any U.S., state, local or foreign laws or regulations
is prohibited. This includes, but is not limited to; copyrighted material,
threatening or obscene material, or material protected by trade secret. Customer
agrees to indemnify Pilot from any costs, damages, fees and expenses incurred by
Pilot which are attributable to the use of Pilot's services by Customer.
Customer will indemnify Pilot for costs and expenses related to third party
claims, provided that Pilot: (1) notifies Customer promptly in writing of the
claim and (2) permits Customer to defend, compromise or settle the claim in a
manner not adverse to Pilot and provides on a reasonable basis information,
assistance and authority to enable Customer to do so. Customer agrees to
reimburse Pilot's reasonable expenses and attorney's fees on an as-incurred
basis for such activity. Pilot shall have no authority to settle any claim on
behalf of Customer. THIS SECTION AND SECTION 4 STATE THE ENTIRE LIABILITY OF
CUSTOMER AND PILOT WITH RESPECT TO THE SERVICES PROVIDED BY PILOT TO CUSTOMER
UNDER THIS AGREEMENT, AND NEITHER CUSTOMER NOR PILOT SHALL HAVE ANY ADDITIONAL
LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT OR UNLAWFUL
ACTIVITY.
3. Term of Payment. The Implementation Charge set forth on the attached
Schedule(s) shall be payable in two equal monthly installments commencing on the
Effective Date. The Monthly Service Charges will be payable by the Customer
commencing sixty days after the Effective Date. Pilot will submit to Customer an
invoice for services provided at the beginning of each monthly period payable
upon receipt of invoice. A monthly service charge of 1.5% of the unpaid balance
will be payable on past due balances.
4. Limitation of Liability. The parties agree that: (i) Pilot exercises
no control and has no responsibility whatsoever over the content of information
transmitted by use of Pilot's services, (ii) Pilot is not responsible for the
accuracy or quality of such information, (iii) use of such information is at
Customer's own risk, and (iv) this is not a contract for the sale of goods and,
therefore, is not subject to the Uniform Commercial Code. Pilot warrants that it
has the right and power to enter into this Agreement and that it will provide
the services specified in this Agreement in a workmanlike and professional
manner. IN ALL OTHER RESPECTS, NO REPRESENTATIONS AND WARRANTIES (WRITTEN OR
ORAL) HAVE BEEN MADE BY THE PARTIES. THE SERVICES ARE PROVIDED "AS IS" AND PILOT
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
SERVICES IT IS PROVIDING, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Pilot makes no guarantees
with respect to the services rendered under this Agreement and Pilot shall have
no liability as a result of Pilot's performance of this Agreement, including,
without limitation, interrupted service, unauthorized access by a third party,
errors or delays in transmission, loss of data or failure to meet Customer's
requirements. Without limiting the foregoing, Pilot's entire liability under,
for breach of, arising under, or related to this Agreement or the services to be
provided hereunder (whether in tort, contract or any other theory), shall not
exceed the aggregate charges for services rendered for
the prior twelve months under this Agreement that gave rise to such liability.
In no event shall either party be liable for indirect, exemplary, special,
incidental or consequential damages, or costs, including but not limited to, any
lost profits or revenues, loss of use or goodwill, or any third party claims,
even if such party has been advised of the possibility of such damages.
5. Termination. Either party may terminate this Agreement without penalty
upon ninety (90) days advance written notice to the other party prior to the end
of the initial, or any successive, twelve (12) month periods. In addition,
Customer agrees that Pilot, at its option, may either terminate this Agreement
upon thirty (30) days written notice to Customer, or suspend all services to
Customer, if any amount due for services rendered under this Agreement is
outstanding according to terms specified in Section 3 unless Customer remedies
the problem within such thirty (30) day period. Either party may terminate this
Agreement if the other party is in material breach of this Agreement and has not
cured the breach within thirty (30) days of written notice specifying the
breach. Termination of this Agreement shall result in any and all balances past
due becoming immediately due and payable.
6. General Provisions.
(a) The term "Agreement" as used herein will include any future
written amendments, modifications, or supplements made hereto,
provided, however, that no amendments, modifications or
supplements to this Agreement shall be deemed valid unless signed
by authorized representatives of both parties and expressly
referencing this Agreement. No representation or statement not
expressly contained in this Agreement or, except as set forth in
Section 2(b) hereof, in any written, signed amendment hereto
shall be binding upon Pilot or Customer.
(b) This Agreement may not be assigned by Customer without the prior
written consent of Pilot.
(c) If any of the provisions are invalid under any applicable statute
or rule of law, such provisions are to that extent to be deemed
omitted and the remaining provisions of this Agreement will
remain in full force and effect.
(d) In the event suit is commenced to collect any amounts owing
hereunder, the prevailing party shall be entitled to recover
reasonable attorney's fees and costs of suit.
(e) The Agreement constitutes the complete Agreement between the
parties and supersedes all previous representations,
understandings or agreements and shall prevail notwithstanding
any variance with terms and conditions of any proposal submitted.
(f) This Agreement shall be governed by and construed in accordance
with the laws of the State of California, regardless of its
choice of law provisions.
(g) Any legal action or proceeding relating to this Agreement shall
be instituted in any state or federal court in San Francisco or
Alameda County, California. Pilot and Customer agree to submit to
the jurisdiction of, and agree that venue is proper in, the
aforesaid courts in any such legal action or proceeding.
(h) All notices, including notices of address change, required to be
sent hereunder shall be in writing and deemed given when
delivered by personal delivery, telegram, facsimile, telecopier,
courier service or registered mail to the addresses listed on the
signature page, or such other address that a party may specify.
(i) Pilot shall not be in default or otherwise liable for any delay
in or failure of its performance under this Agreement where such
delay or failure arises by reason of any Act of God, or any
government
-2-
or any governmental body, acts of war, the elements, strikes or
labor disputes, or other cause beyond the control of Pilot.
(j) Customer agrees to comply with all applicable United States
export control laws and regulations, including without
limitation, the laws and regulations administered by the United
States Department of Commerce and the United States Department of
State.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS.
CUSTOMER: E-Stamp PILOT NETWORK SERVICES, INC.
-----------------
By: /s/ X. Xxxxxxxx By: /s/ Xxxxxxxx Xxxxxxx
----------------------- ------------------------------
Name: X. Xxxxxxxx Name: Xxxxxxxx Xxxxxxx
--------------------- ----------------------------
Title: VP Operations Title: CEO
-------------------- ---------------------------
Address: 0000 Xxxxxxx Xxx. Address: 0000 Xxxxxx Xxxxxxx Xxxxxxx
------------------ Xxxxxxx, Xxxxxxxxxx 00000
Xxxx Xxxx, XX 00000
---------------------------
Agreement only valid in
conjunction with attached
Amendment.
-3-
Amendment To Agreement For Services Between
Pilot Network Services and
E-Stamp Corporation
1. Section 3. Term of Payment, change the 3rd sentence to read:
Pilot will submit to Customer an invoice for services provided at the beginning
of each monthly period payable within thirty (30) days of receipt of invoice.
2. Add the following to Section 5, Termination:
In the future, should Pilot elect not to provide Secure Web Hosting Services on
NT platform, Customer has the right to terminate this Agreement upon thirty
(30) days written notice to Pilot, providing that NT hosting at a Pilot
Service Center is a Customer requirement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS ADDENDUM, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS.
E-Stamp Corporation Pilot Network Services, Inc.
By: /s/ X. Xxxxxxxx By: /s/ Xxxxxxxx Xxxxxxx
------------------------- --------------------------
Name & Title: Xxxxxxxx XX-Ops. Name & Title: CEO
---------------- -----------------
Date: June 27, 1997 Date:
------------------------ -------------------------
1. Charges
1.1. [***] Secure Internet Service via [***]
One-Time Setup Charge: $ 6,000
Monthly Charge: $ 4,000
Included Services:
. Procure, provision and install:
- T-1 line connecting Customer to Pilot
- Routers and CSU/DSUs
. Manage all Domain Name registrations with InterNIC:
- Host and Name Server registration or re-registration (InterNIC
registration fees passed through to the Customer)
. Establish Internet connectivity and access to all generic
Internet services
. Configure and deploy [***]
- Customize [***] to implement Customer security policies
- Sanitize all [***] for security and auditing purposes
- Establish a secure, fortified email gateway
- Set up external fortified [***] service at Pilot Service
Center
- Install and integrate security monitoring tools into the
firewall
- Install and integrate logging mechanisms into the firewall
- Install and integrate Pilot Traffic Profile(TM) Reporting
System into firewall
- Setup and test tape backup systems
- Provide hot spares for immediate swap-out in event of server
failure
. Administration and management of [***]
- Apply security patches, fix bugs and/or provide workarounds
- Maintain all equipment and software, including upgrades
- Maintain fortified email gateway and external [***] service
- Execute daily incremental and full weekly backups with offsite
tape storage
- Provide online access to Pilot Traffic Profile(TM) Reports
for authorized viewing
- Log, document and submit intrusion attempt reports
. Provide Internet access to Customer-maintained or Pilot-Hosted
server(s)
. Provide NNTP Newsfeed to Customer-maintained (or Pilot-Hosted)
News:
Charges are based on initial twelve-month commitment. Customer will be
invoiced for setup charges in two equal monthly installments
commencing on the effective date. Monthly service charges will become
due and payable sixty days after the effective date. This quotation
is valid for thirty (30) days beginning May 23, 1997.
Charges for this service shall not commence until such time that the customer
notifies to begin the installation process. Customer agrees to provide
notification 45 day before E-Stamp beta test starts.
Approved: /s/ X.X. Xxxxxxxx
---------------------------
(signature)
Name: X.X. Xxxxxxxx
---------------------------
(please print)
Title: VP- Operations
--------------------------
(please print)
Date: 27-June-97
---------------------------
(please print)
Standard prices for Secure Internet Services are $12,000 One-Time Setup Charge
and $5,000 Monthly Charge. Special prices quoted apply only if ordered in
conjunction with E-fill application and database hosting R&D -- and marketing
site web hosting services. Standard service charges will apply if ordered
separately.
NOTIFICATION TO BEGIN THE INSTALLATION PROCESS WILL BE FORTHCOMING NOT LATER
THAN 9/30/97, UNLESS THE U.S. POSTAL SERVICE DENIES THE APPROVAL FOR THIS
PROJECT WITH E-STAMP OR CAUSES OTHER UNFORESEEN DELAYS.
/s/ [T.J.R.] 30-June-97 /s/ [ILLEGIBLE] /s/ [ILLEGIBLE] 6/30/97
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
1.2. Marketing World-Wide Web (WWW) Server Hosting*
Additional One-Time Setup Charge: $6,000
Additional Monthly Charge: $ 500
Included Services:
. Create Marketing Web server:
- Procure dedicated Web server and tape backup system
- Configure server with the OS and Web Server & Sequel
software
- Sanitize the [***] for security and auditing purposes
- Register under Customer domain (e.g., xxx.xxxxxx.xxx)
- Integrate Web server into [***]
- Install and integrate security monitoring tools into the
server
- Install and integrate logging mechanisms into the server
- Install and integrate Pilot Traffic Profile Reporting
System(TM) into server
- Setup and test tape backup system
- Configure and deploy Pilot's proprietary system for
securely and automatically updating Web content
- Supply [***] of storage for Customer content (upgradable)
- Provide hot spares for immediate swap-out in event of
server failure
. Administration and management of Web server:
- Apply security patches, fix bugs and/or provide
workarounds
- Support of authenticated mechanism for content updates
- Execute daily incremental and full weekly backups with
offsite tape storage
- Maintain all equipment and software, including upgrades
- Provide online access to Pilot Traffic Profile
Reports(TM)
Charges are based on initial twelve-month commitment. Customer
will be invoiced for setup charges in two equal monthly
installments commencing on the effective date. Monthly service
charges will become due and payable sixty days after the
effective date. This quotation is valid for thirty (30) days
beginning May 23, 1997.
Approved: X.X. Xxxxxxxx
---------------------
(signature)
Name: X.X. Xxxxxxxx
---------------------
(please print)
Title: VP - Operation
---------------------
(please print)
Date: 27-June-97
---------------------
(please print)
Customer will provide all the software necessary to host the Web server. If
additional third-party software is to be installed and supported, the software
must be mutually agreed upon in advance between Pilot and the Customer such an
addition could affect pricing for services.
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
Secure Commerce Web Server Hosting and NT R&D Project*
One-Time Setup Charge: $6,000
Monthly Charge: $3,500
Included Services:
. Install and deploy Customer-provided dedicated E-fill application
and database servers and tape backup systems
- Install customer-provided servers (primary and backup) and
RAID 5 with the OS, application and database server software
- Sanitize the [***]for security and auditing purposes
- Integrate servers into [***]
- Install and integrate security monitoring tools into the
servers
- Install and integrate logging mechanisms into the servers
- Position E-fill servers on dedicated [***] Ethernet network
segment within Pilot Service Center
- Setup and test tape backup system
. Administration and management of E-fill and database servers:
- Apply security patches, fix bugs and/or provide workarounds
- Support authenticated process for content updates &
synchronization
- Perform regular backups of servers, including offsite storage
of tapes
- Provide access to authorized agents for equipment maintenance
- Maintain software, including performing upgrades
- Provide uptime monitoring of the servers
- Perform database index maintenance
. Research security requirements of services hosted on the NT
platform:
- Protection techniques to guard against denial-of-service
attacks
- Protection techniques to guard against unauthorized server
access
- Deployability of O/S configuration to multiple machines
- Integration into the [***]
- Porting, monitoring and other utilities
- Provide written report of conclusions at 3 and 6 month
milestones
. Log, document, and submit intrusion-attempt reports to Customer
The monthly charge is based on an initial six-month commitment to the
service and is due at the beginning of each month. One-time setup fees
are due and payable in advance. This quotation is valid for thirty
(30) days beginning May 23, 1997 and anticipates that services will be
installed within 90 days of order.
Charges for this service shall not commence until such time that the customer
notifies Pilot to begin installation process. Customer agrees to provide
notification 45 days before E-Stamp beta tests starts.
Approved: /s/ X.X. Xxxxxxxx
-----------------------
(signature)
Name: X.X. Xxxxxxxx
-----------------------
(please print)
Title: VP-Operations
-----------------------
(please print)
Date: 27-June-97
-----------------------
(please print)
If additional third-party software is required to be installed and supported,
the software must be mutually agreed upon in advance between Pilot and the
Customer and pricing for services and support could potentially be affected.
NOTIFICATION TO BEGIN THE INSTALLATION PROCESS WILL BE FORTHCOMING NOT LATER
THAN 9/30/97, UNLESS THE U.S. POSTAL SERVICE DENIES THE APPROVAL FOR THIS
PROJECT WITH E-STAMP OR CAUSES UNFORESEEN DELAYS.
/s/ [T.J.R.] 30-June-97 /s/ [ILLEGIBLE] /s/ [ILLEGIBLE] 6/30/97
*** Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with
the Securities and Exchange Commission.
