EXHIBIT 10.21
Application Service Provider Agreement
This Application Service Provider Agreement (the "Agreement") is entered
into as of September 17th, 1999 (the "Effective Date") by and between
OrganicNet, Inc., a Delaware corporation with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("OrganicNet") and Conxion
Corporation, a California corporation with offices at 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000 ("Conxion") (collectively, the "Parties").
OrganicNet is expanding its software distribution strategy to include an
Internet Application Service Provider ("ASP") model whereby OrganicNet customers
can access OrganicNet's software through the Internet on equipment hosted for
OrganicNet by third parties.
The Parties have previously entered into three Dedicated Server Agreements,
dated as of April 8, May 3, and June 1, 1999, and two T1 Service Agreements,
dated as of May 23 and September 1, 1999 (collectively, the "Service
Agreements"), a copy of each of which is attached hereto as Exhibit A, pursuant
to which Conxion will continue to provide the services described therein
("Services") for OrganicNet.
In consideration for entering into this Agreement, Conxion has purchased
$550,000 of OrganicNet Series C preferred stock.
The Parties wish to modify the terms of the Service Agreements to accommodate
the ASP software distribution model. In consideration of the terms and
conditions and mutual obligations contained in this Agreement, the parties agree
as follows:
Agreement
1. Governance. In the event that the terms of this Agreement are inconsistent
with the terms of any Service Agreement entered into by the Parties now or in
the future, the terms of this Agreement shall govern, notwithstanding any terms
to the contrary in any such Service Agreement.
2. ASP Model. Conxion acknowledges and agrees that OrganicNet may use the
services provided pursuant to the Service Agreements in fulfillment of the ASP
software distribution model and, in particular, that end users of OrganicNet
software shall be entitled to access such services.
3. Service Standards. Conxion agrees to supply the Services in a manner
described in the Service Agreements (including attached proposals).
4. Maintenance And Upgrade Windows. Conxion agrees not perform maintenance or
upgrades that would materially and adversely affect the Services except (i) when
maintenance or upgrades are performed during the hours of 10:00 p.m. to 3:00
a.m., Pacific Time (the "Routine Window"), (ii) when the deferral of such
maintenance or upgrades to a Routine Window would materially and adversely
affect the security or performance of a Conxion data center. Conxion shall
perform maintenance or upgrades in such a manner as to utilize the redundancy of
any Services, to minimize the adverse impact on the Services and notify
OrganicNet as far in advance as practicable of any maintenance or upgrades.
5. Enhanced Service Level Guarantee. In addition to the "Service and
Performance Guarantees" set forth in the Service Agreements, Conxion shall
provide the following enhanced service and performance guarantees to OrganicNet:
5.1 In the event of an Outage (as defined below) under an existing Service
Agreement during any business day, Conxion shall provide OrganicNet with a free
day of service under such Service Agreement;
5.2 In the event of five (5) Outages under an existing Service Agreement
during any thirty (30) day period, Conxion shall provide OrganicNet with a free
month of service under such Service Agreement;
1.
5.3 In the event of two (2) consecutive months of free services under an
existing Service Agreement, Conxion shall allow OrganicNet to cancel the
applicable Service Contract without penalty.
As used herein, an "Outage" related to any Service Agreement shall mean a
service degradation on Conxion's network adversely affecting the Services under
such Service Agreement that is greater than an average of 50% over any 12 minute
period (excluding Routine Upgrade Windows) or circuit bandwidth utilization of
greater than an average of 70% (Seventy Percent) for the circuit relating to
such Services.
6. Service Rate Changes. Conxion reserves the right to change the service
rates upon sixty (60) days prior written notice to OrganicNet; provided,
however, that the new service rates charged to OrganicNet will be at least as
favorable to OrganicNet as Conxion offers at such time to any customer. In the
event any service rate change is greater than 10% (Ten Percent), Conxion may
allow OrganicNet to cancel the applicable Service Contract with 60 days written
notice without penalty.
7. Term and Termination.
7.1 Term and Additional Service Agreements. Notwithstanding anything
contained in the Service Agreements, (i) Conxion may not terminate or suspend
Services under any Service Agreements in the event of a bona fide dispute
between the parties so long as undisputed payments are not withheld, and (ii)
Conxion shall enter into extensions of existing Service Agreements upon the end
of the applicable contract term, as required by OrganicNet, or into supplemental
Service Agreements, as required by OrganicNet, on terms no less favorable to
OrganicNet than Conxion offers at such time to any customer. Any subsequent
Service Agreement shall be deemed to be a Service Agreement hereunder and shall
be attached as an exhibit hereto and added to Exhibit A.
7.2 Termination; Cure. In addition to the limitations on termination
contained in Section 7.1, Conxion may not terminate any of this Agreement or the
Services Agreements except in the event of a material breach of such agreement
by OrganicNet; provided, however, that in the event of such a breach, Conxion
may not terminate the applicable agreement until it shall have provided written
notice of such breach to OrganicNet and OrganicNet shall have not have cured
such breach within thirty (30) days of such notice.
7.3 Survival. This Agreement shall survive termination of any Service
Agreement.
8. General.
8.1 Notices. All notices, consents and approvals under this Agreement must
be delivered in writing by courier, or by certified or registered mail, (postage
prepaid and return receipt requested) to the other party at the address set
forth beneath such party's signature, and will be effective upon receipt. Either
party may change its address by giving notice of the new address to the other
party.
If to OrganicNet: If to Conxion:
000 Xxxxxxxx Xxxxxx, Xxxxx 000 0000 Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, III Attn: Xxxxxxx Xxxxxxx
8.2 Governing Law. This Agreement will be governed by the laws of the
State of California as such laws apply to contracts between California residents
performed entirely within California.
8.3 Waivers. All waivers must be in writing. Any waiver or failure to
enforce any provision of this Agreement on one occasion will not be deemed a
waiver of any other provision or of such provision on any other occasion.
8.4 Counterparts. This Agreement may be executed in counterparts, each of
which will be considered an original, but all of which together will constitute
the same instrument.
2.
8.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties regarding the subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and communication, whether written
or oral. This Agreement may be amended only by a written document signed the
Parties.
In Witness Whereof, the Parties have executed this Application Service
Provider Agreement as of the Effective Date.
OrganicNet, Inc. Conxion Corporation
By: /s/ Xxxxxxx X. Xxxx, III By: /s/ Xxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx, III Name: Xxxxx X. Xxxx
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Title: President Title: CFO
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Date: 9/17/99 Date: 9/17/99
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3.
Exhibit A
Service Agreements
TYPE OF CONTRACT DATE
Dedicated Server Agreements April 8, 1999
Dedicated Server Agreements May 3, 1999
T1 Service Agreement May 23, 1999
Dedicated Server Agreements June 1, 1999
T1 Service Agreement September 1, 1999
