1
EXHIBIT 10.24
This MASTER SERVICE AGREEMENT between the below named CUSTOMER and FRONTIER
GLOBAL CENTER (collectively referred to as the "PARTIES") establishes the terms
and conditions under which FRONTIER GLOBALCENTER will provide communications
services to CUSTOMER.
Customer: DIGITAL COMMERCE
Project: (2) T1's
Principle Place of Business: 00000 Xxxxxxx Xxxxxx Xx.
Address: Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Issue Date: 1/29/99
Frontier GlobalCenter Address of Notices:
0000 X. Xxxxxxxxxx 0000 X. Xxxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn.: Contract Administration
1. The Parties anticipate that CUSTOMER may, at CUSTOMER'S sole discretion,
issue one or more Data Service Orders ("Service Orders") describing certain
services which CUSTOMER desires to purchase from FRONTIER GLOBALCENTER, and
which set forth the prices, minimum term of service and other service specific
details. All Service Orders shall be subject to the terms and conditions of this
Master Agreement for the duration of the Service Order. If Service Order is
accepted in writing by an authorized representative of FRONTIER GLOBALCENTER it
shall supersede any and all prior agreements or understandings with respect to
the service described therein, and shall comprise the full and final Agreement
of the PARTIES. No term or condition hereof shall be modified except by written
agreement of both PARTIES and any preprinted terms and conditions which may
appear on CUSTOMER'S order form are expressly rejected and are void. As used in
this document the word "Term" shall mean the total duration of a Service Order
and the phrase "Initial Term" shall mean the minimum term of service as
specified in a Service Order. The word "Agreement" shall apply to all promises,
terms and conditions of the PARTIES contained in the Master Service Agreement of
a Service Order.
2. The Initial Term of this Agreement shall be as set forth in the Service Order
placed hereunder and shall extend thereafter until terminated by either PARTY
upon no less than ninety (90) days' prior written notice. However FRONTIER
GLOBALCENTER may terminate this Agreement or suspend service hereunder at any
time upon: (a) any failure of CUSTOMER to pay any undisputed amounts as provided
in this Agreement; (b) any breach by CUSTOMER of any material provision of this
Agreement continuing for thirty (30) days after receipt of notice thereof,
except for activities which involve disruption or interference of Frontier
GlobalCenter services including without limitation sending unsolicited mass
e-mailings, propagation of computer worms and viruses, and using the network to
make unauthorized entry to any other machine accessible via the network, which
may result in immediate suspension or termination of service upon notice to
CUSTOMER, (c) any insolvency; bankruptcy, assignment for the benefit of
creditors, appointment of a trustee or receiver or similar event with respect to
CUSTOMER, or (d) any government prohibition or required
-1-
2
alteration of services to be provided hereunder or any violation of an
applicable law, rule or regulation. Any termination shall not relieve CUSTOMER
of its obligation to pay any charges incurred hereunder prior to such
termination. The PARTIES' rights and obligations, which by their nature would
extend beyond the termination, cancellation or expiration of this Agreement
shall survive such termination, cancellation or expiration.
3. CUSTOMER is responsible for all recurring and non-recurring charges from and
after the date of acceptance. For purposes of this agreement, the date of
acceptance is two (2) business days after FRONTIER GLOBALCENTER establishes a
connection in which the FRONTIER GLOBALCENTER provided services are functioning
properly. Recurring charges will be prorated for the first and last month of the
agreement if service is not provided for a complete month. Proration of monthly
charges will be based on number of days connection was available divided by
total days in the month FRONTIER GLOBALCENTER's targeted service installation
intervals are thirty (30) days after order acceptance for on net services and
forty-five (45) days for all offnet services. In the event CUSTOMER requests
FRONTIER GLOBALCENTER to attempt to accelerate the order process to install
services more quickly, CUSTOMER shall pay an order expedite charge of $500.
Order expedite charges will apply to each site ordered for which expedited
installation is requested.
4. During the term CUSTOMER shall pay FRONTIER GLOBALCENTER for services at the
rates set forth in the service order. FRONTIER GLOBALCENTER shall not increase
pricing during the initial term, but thereafter may increase pricing upon ninety
(90) days written notice. Normal service charges shall be invoiced monthly in
advance. All amounts owed CUSTOMER thereunder shall be paid within thirty days
after the date of the invoice and FRONTIER GLOBALCENTER reserves the right to
charge interest on al delinquent payments at annualized rate of 2 percentage
points above the prime rate as announced in the Wall Street Journal from time to
time.
5. FRONTIER GLOBALCENTER'S xxxx shall separately identify any excise, sales,
use, or other taxes applicable to FRONTIER GLOBALCENTER's provision of service
or equipment to CUSTOMER, and all such taxes, however designated (excepting
those based on FRONTIER GLOBALCENTER'S net income), shall be paid by Customer in
addition to any other amount owing. FRONTIER GLOBALCENTER will not collect any
otherwise applicable tax if CUSTOMER first provides FRONTIER GLOBALCENTER with a
valid tax exemption certificate.
6. At customer's request, FRONTIER GLOBALCENTER will respond to CUSTOMER'S
report of services interruption and attempt to resolve all problems of
connectivity. If it is determined that all facilities, systems and equipment
furnished by FRONTIER GLOBALCENTER are functioning properly, and that the
connectivity problem arose from some other cause. FRONTIER GLOBALCENTER will
recover labor and materials costs for services actually performed at the
following rates, which shall be the usual and customary rates for similar
services provided by FRONTIER GLOBALCENTER to all customers in the same
locality.
-2-
3
Labor (4-hour minimum charge):
7 A.M. to 7 P.M. (Mountain Standard Time) weekdays/$150.00 per hour
per technician
All other times: $225.00 per hour per technician Materials: Costs to
FRONTIER GLOBALCENTER X 1.15
FRONTIER GLOBALCENTER reserves the right to modify the above rates upon ninety
(90) days advance written notice to CUSTOMER.
7. FRONTIER GLOBALCENTER may substitute, change or rearrange any equipment,
facility or system providing services at any time and from time to time, but
shall not thereby alter the technical parameters of the services provided
thereunder.
8. CUSTOMER shall not cause or allow any facility or equipment of FRONTIER
GLOBALCENTER to be rearranged, moved, removed, disconnected, altered, or
repaired without FRONTIER GLOBALCENTER'S prior written consent which consent
shall not be unreasonably withheld or delayed. CUSTOMER shall not create or
allow any liens or other encumbrances to be placed on any FRONTIER GLOBALCENTER
equipment facility or system arising from any act, transaction or
circumstance-relating CUSTOMER. If CUSTOMER elects to relocate or otherwise
change the place of services after commencement of the installation or
facilities. CUSTOMER shall pay any disconnection, early cancellation or
termination charges reasonably incurred by FRONTIER GLOBALCENTER for the
original location and installation charges for the new location.
9. FRONTIER GLOBALCENTER will grant a credit allowance for service interruption
calculated and credited in fifteen (15) minute increments. A service
interruption will be deemed to have occurred only if service becomes unusable to
CUSTOMER as a result of failure of FRONTIER GLOBALCENTER'S facility, equipment
or personnel used to provide the service in question, and only where the
interruption is not the result of: (i) the negligence or acts of CUSTOMER or its
agents; (ii) the failure or malfunction of non-FRONTIER GLOBALCENTER equipment
or systems not provided by FRONTIER GLOBALCENTER; (iii) circumstances or causes
beyond the control of FRONTIER GLOBALCENTER; or (iv) a service interruption
caused by scheduled service maintenance, alteration, or implementation. Such
credits will be granted only if (a) CUSTOMER affords FRONTIER GLOBALCENTER full
and free access the applicable equipment located at the CUSTOMER'S premises to
make appropriate repairs, maintenance, testing, etc.; and (b) CUSTOMER does not
unreasonably continue to use the service on an impaired basis.
For purposes of canceling or terminating a service provided under this Agreement
for a FRONTIER GLOBALCENTER service interruption, such service interruption must
equal either twenty-four (24) hours of cumulative service outages during any
continuous twelve (12) month period or a single outage of eight (8) hours or
more. CUSTOMER must notify FRONTIER GLOBALCENTER in the form of written
documentation, the cancellation of this circuit for cause.
The foregoing states customers sole remedy for service interruption under the
Agreement, and in no event shall FRONTIER GLOBALCENTER be liable for harm to
business, lost revenues, lost savings, or lost profits suffered by CUSTOMER,
regardless of the form of action, whether in contract,
-3-
4
warranty, strict liability, or tort, including without limitation negligence of
any kind, whether active or passive.
10. FRONTIER GLOBALCENTER'S entire liability for any claims, loss, damage or
expense from any cause whatsoever shall in no event exceed sums actually paid to
FRONTIER GLOBALCENTER by CUSTOMER for the specific service giving rise to the
claim. Not withstanding the foregoing, FRONTIER GLOBALCENTER shall not be liable
for any indirect, incidental, consequential, punitive or special damages. No
action or proceeding against FRONTIER GLOBALCENTER shall be commenced more than
one (1) year after service is rendered.
11. There are no warranties, representations or agreements, expressed or implied
either in fact or by operation of law, statutory or otherwise, including
warranties of merchantability or fitness for a particular purpose, except those
expressly set forth herein.
12. In the event that CUSTOMER cancels or terminates service at any time during
the initial Term of this Agreement or any renewal thereof for any reason
whatsoever other than a service interruption (as defined in Paragraph 9 above).
CUSTOMER agrees to pay FRONTIER GLOBALCENTER liquidated damages (which shall not
be deemed a penalty) the following sums which shall become due and owing as of
the effective date of cancellation or termination and be payable in accordance
with Paragraph 3 above. 1) The remainder of the monthly recurring TELCO charges
over the term of the agreement, and 2) 15% of the remaining recurring Internet
Access charges over the term of the agreement.
13. CUSTOMER shall allow FRONTIER GLOBALCENTER continuous access and
right-of-way to the applicable equipment located at the CUSTOMER'S premises to
the extent reasonably determined by FRONTIER GLOBALCENTER to be appropriate to
the provision and maintenance of services, equipment, facilities, and systems
hereunder. Upon reasonable notice, the CUSTOMER shall furnish FRONTIER
GLOBALCENTER, at no charge, such equipment space and electrical power as is
reasonably determined by FRONTIER GLOBALCENTER to be required and suitable to
render services hereunder.
14. CUSTOMER shall be liable for any damages to FRONTIER GLOBALCENTER equipment,
facility, and system which is caused by: (a) negligent or willful acts or
omissions of CUSTOMER, or (b) malfunction or failure of any equipment or
facility provided by CUSTOMER or its agents, employees, or suppliers. CUSTOMER
is responsible for identifying, monitoring, removing and disposing of any
existing hazardous materials (e.g., friable asbestos) prior to any construction
or installation work being performed by FRONTIER GLOBALCENTER and CUSTOMER shall
indemnify, defend and hold FRONTIER GLOBALCENTER harmless from any claim, suit
loss, cost or expense, including lines, abatement charges, legal fees and court
costs incurred in connection with hazardous materials on CUSTOMER'S premises.
-4-
5
15. Neither PARTY may assign this Agreement without the written consent of the
other PARTY (which consent shall not be unreasonably withheld or unduly
delayed).
16. If any provision of this Agreement is held by a court to be invalid, void or
unenforceable, the remainder of this Agreement shall nevertheless remain
unimpaired and in effect.
17. No license, joint venture or partnership, express or implied, is granted by
FRONTIER GLOBALCENTER or the CUSTOMER pursuant to this agreement.
18. Each PARTY agrees to maintain in strict confidence all plans, designs,
drawings, trade secrets, and other proprietary information of the other party
which is disclosed pursuant to this Agreement. No obligation of confidentiality
shall apply to disclosed information which the recipient 1) already possessed
without obligation of confidentiality; 2) develops independently; or 3)
rightfully receives without obligation of confidentiality from a third PARTY.
19. Neither PARTY shall be liable for any delay or failure in performance of any
part of this Agreement to the extent such delay or failure is caused by an event
of Force Majeure, including, but not limited to, fire, flood, explosion,
accident, war, strike, embargo, governmental requirement, civil or military
authority, Act of God, inability to secure materials, labor, or transportation,
acts or omissions of common xxxxxx or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the Agreement
until the Force Majeure condition ceases and the Term shall be extended by the
length of the suspension.
20. If this Agreement is entered into by more than one CUSTOMER, each is jointly
and severally liable for all agreements. covenants and obligations herein.
21. This Agreement shall be governed by the laws of the State of Arizona without
regard to its choice of law provisions in any action between the parties to
enforce any material provision of this Agreement, the prevailing PARTY shall be
entitled to recover its legal fees and court costs from the non-prevailing PARTY
in addition to whatever other relief a court may award.
22. Each person executing this Agreement on behalf of FRONTIER GLOBALCENTER or
CUSTOMER represents and warrants that he or she has been fully empowered to do
so, and that all necessary corporate actions (if any) required for the execution
of agreements have been taken.
23. Telco charges, if provided, are estimates. Telco charges are subject to
change at anytime during the agreement. Increases will be passed through to the
CUSTOMER.
24. CUSTOMER agrees to be bound by and enforce on the users of its service all
applicable provisions of FRONTIER GLOBALCENTER'S acceptable use policy and user
agreement; in particular those provisions involving "netiquette."
-5-
6
FRONTIER GLOBALCENTER, INC. DIGITAL COMMERCE
0000 Xxxx Xxxxxxxxxx (0) X0'x
Xxxxxxx, XX 00000 00000 Xxxxxxx Xxxxxx Xx.
(602) 416-7112 Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx Xxxxxx Xxxx
Account Manager
By: By:
-------------------------------- ------------------------------
Printed Name: Printed Name:
---------------------- ---------------------
Title: Title:
----------------------------- ---------------------------
Date: Date:
------------------------------ -----------------------------
-6-
