EXHIBIT 10.16
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
E-MAIL SERVICES AGREEMENT
THIS E-MAIL SERVICES AGREEMENT ("Agreement") is entered into as of the
27th day of May, 1998 ("Effective Date"), by and between CRITICAL PATH, INC., a
California corporation having a principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxxxxxxx, XX 00000 ("CP"), and NETWORK SOLUTIONS, INC., a Delaware
corporation, having a principal place of business at 000 Xxxxxxx Xxxx Xxxxx,
Xxxxxxx, XX 00000 ("NSI"). CP and NSI may also be referred to as a "Party" or
collectively as the "Parties" throughout this Agreement.
RECITALS:
WHEREAS, CP provides Internet e-mail services, such as Web-based e-mail
reader, spam blocking, virus scanning and protection, integrated fax and
voice-messaging technologies, permanent archiving and secure certified e-mail
delivery to its customers;
WHEREAS, NSI is an Internet domain name registration services provider
and also provides network consulting and implementation services to businesses
that desire to establish or enhance their Internet presence ("NSI Services");
and
WHEREAS, subject to the terms and conditions of this Agreement, the
Parties desire that CP host e-mail services for NSI which NSI may offer to its
customers as part of the NSI Services.
NOW, THEREFORE, in consideration of the mutual promises, benefits, and
covenants contained herein and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, CP and NSI
hereby agree as follows:
ARTICLE 1. DEFINITIONS
1.1 "Advertising Revenues" shall mean the revenue received by either Party
from third party advertisements included on the Web Mail Page, less any
commissions, credits, or refunds paid to such third party advertisers with
respect to such revenues.
1.2 "CP System" means CP's E-mail messaging system through which CP provides
E-mail Hosting Services.
1.3 "E-mail Hosting Revenues" shall mean all gross revenue of NSI from sales
of the E-mail Hosting Services to NSI Customers.
1.4 "E-mail Hosting Services" shall mean the e-mail hosting services provided
by CP to NSI for sale to NSI Customers, as more fully described in Article 2 and
Exhibit B below.
1.5 "Proprietary Rights" shall mean any and all patents, inventions,
copyrights, trademarks, mask works, trade secrets, proprietary information or
any other intellectual property rights in any country of the world or contract
rights having the equivalent effect.
1.6 "Proprietary Information" shall include, but not be limited to, either
Party's date, database, product plans, designs, protocols, products, costs,
names, finances, marketing plans, business opportunities, personnel, and
research and development originated by the disclosing
Party, not previously published or otherwise disclosed to the general public,
not previously available without restriction to the receiving Party, nor
normally furnished to others without restriction, and which the disclosing Party
desires to protect against unrestricted disclosure or competitive use. All
information regarding the terms of this Agreement shall be deemed "Proprietary
Information." "Proprietary Information" shall not include information that (i)
is or enters the public domain through no fault of the receiving Party; (ii) is
known and has been reduced to tangible form by the receiving Party prior to the
time of disclosure and is not subject to restriction; (iii) is independently
developed by the receiving Party without access to or use of the Proprietary
Information; (iv) is lawfully obtained by a third Party who has the fight to
make such disclosure; (v) is compelled by a court or otherwise required to be
disclosed by law or regulation; or (vi) is made generally available by the
disclosing Party without restriction on disclosure.
1.7 "Registrar" shall mean the entity acting as an interface between domain
name registrants and the Internet top level domain registry providing
registration and value added services in the domain name system.
1.8 Registry" shall mean the entity who is responsible for maintaining a top
level domain's zone files which contain the domain name of each second-level
domain name in that top level domain and each second-level domain name's
Internet Protocol number.
1.9 "NSI Customer" shall mean each of NSI's customers who choose to receive the
E-mail Hosting Services through NSI's web site.
1.10 "Web Mail Page" means NSI's web mail page available through the CP System
as part of the E-mail Hosting Services
ARTICLE 2. CP OBLIGATIONS
2.1 Services to be Provided. Under the terms and conditions of this Agreement,
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CP shall provide and NSI hereby accepts the right to offer the E-mail Hosting
Services through the CP System to NSI Customers. Except for entities already
under contract with CP on the Effective Date, NSI shall be CP's exclusive
Internet Registrar distributor of the E-mail Hosting Services through the CP
System for the .com, org and net top-level domains ("TLDs") for a period from
the Effective Date through March 31, 1999. CP shall not provide the same or
similar E-Mail Hosting Services to any other Internet Registrar for the .com,
.org or .net TLDs during such time period. For the Term of this Agreement, if CP
offers domain name registration services as part of its e-mail hosting services
to its customers, then NSI shall be CP's exclusive Internet Registrar for the
.com, .org and .net TLDs for such new service.
2.2 Privacy. CP shall respect the privacy of the NSI Customers and their e-mail
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messages that are transmitted through the CP System or by means of the E-mail
Hosting Services. CP shall only access and disclose information as necessary
to comply with applicable laws and government orders or requests, to provide
the E-mail Hosting Services, to operate or maintain its systems or to protect
itself or NSI's Customers. CP shall not commingle NSI Customer data and e-mail
messages with the data or e-mail messages of CP or CP's other customers. In
addition, CP shall provide an account provisioning system through which NSI
may access and view NSI Customer data at its convenience. In the event NSI
wishes to view any NSI Customer data that is not available through the account
provisioning system, then CP shall provide or make such data
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available to NSI within 48 hours of NSI's written request for such data. Except
for the foregoing stated limited purposes, CP shall not use, sell, license or
disclose any NSI Customer information without the prior written consent of NSI.
2.3 Suspension or Termination. If CP becomes aware of or suspects any
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violation of NSI's Terms of Use by an NSI Customer, CP shall immediately notify
NSI and provide reasonable detail of such violation. The Parties shall use their
best efforts to promptly resolve the violation or suspected violation. However,
CP reserves the right to immediately suspend or terminate the provision of E-
mail Hosting Services to the violating NSI Customer as reasonably necessary to
protect CP's interests.
2.4 Modification of the E-mail Hosting Services
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2.4.1 CP Changes or Modifications to the Services or the CP System. CP shall
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provide 90 days prior written notice to NSI of any proposed change or
modification ("Change") by CP to the E-mail Hosting Services or the CP
System that will materially affect the CP System functionality, the
Application Program Interface ("API"), or the NSI Customers' use of or
ability to use the E-mail Hosting Services. In the event NSI objects to
such Change in writing to CP within 30 days after receipt of CP's
notice, then CP shall ensure that such Change is compatible with the
previous version of the E-mail Hosting Services, CP System or API for a
period of 6 months from the date of implementation of such Change to
permit NSI a period of time to adjust to such Change.
2.4.2 NSI Requested Changes or Modifications. During the term of the
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Agreement, NSI may request reasonable functional enhancements or changes
to the E-mail Hosting Services or the API. The Parties shall work
together to process, develop, and integrate such enhancements or
changes, and to develop a mutually agreeable time frame for
implementation of such enhancements or changes. Except for enhancements
or changes solely developed by NSI or jointly developed by the Parties,
NSI acknowledges and agrees that all Proprietary Rights in and to such
enhancements and changes shall be owned exclusively by CP, and NSI
agrees to execute and deliver to CP all further instruments and
documents and take such reasonable action that may be necessary or
desirable as reasonably requested by CP to effectuate CP's exclusive
ownership. For enhancements or changes solely developed by NSI, CP
acknowledges and agrees that all Proprietary Rights in and to such
enhancements and changes shall be owned exclusively by NSI, and CP
agrees to execute and deliver to NSI all further instruments and
documents and take such reasonable action that may be necessary or
desirable as reasonably requested by NSI to effectuate NSI's exclusive
ownership. NSI hereby grants to CP a non-exclusive, non-transferable,
royalty-free, worldwide right to use such NSI-owned enhancements and
changes to provide the E-mail Hosting Services and to otherwise perform
under this Agreement. Such license shall terminate upon any termination
or expiration of this Agreement, subject to survival as provided under
Section 10.4. For proposed enhancements or changes that will be jointly
developed by the Parties, the responsibility for developing such
enhancements or changes and the ownership of such enhancements or
changes will be subject of a separate addendum to this Agreement.
2.5 Cash Escrow. Within sixty (60) days of the Effective Date of this
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Agreement, or such other time period as mutually agreed by the parties, CP and
NSI shall enter into an escrow deposit agreement ("Escrow Agreement") with a
mutually agreeable escrow agent for the establishment of an escrow account. CP
shall deposit the amount of Two Hundred Fifty Thousand Dollars (US
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$250,000) (the "Deposit") in such escrow account and shall list NSI as the
beneficiary thereof upon occurrence of a Release Condition as defined below. NSI
agrees to pay all applicable fees for the establishment and maintenance of the
escrow account.
The parties agree that NSI shall be entitled to release of the Deposit only if
any of the following conditions (the "Release Conditions") shall occur during
the term of this Agreement: (i) CP materially breaches or defaults in any of the
material terms or conditions of this Agreement and CP ceases to provide to NSI
the E-mail Hosting Services, (ii) CP makes any assignment for the benefit of
creditors, is insolvent or unable to pay its debts as they mature in the
ordinary course of business and CP ceases to provide to NSI the E-mail Hosting
Services, (iii) proceedings are instituted by or against CP in bankruptcy or
under any insolvency laws or for receivership or dissolution and CP ceases to
provide to NSI the E-mail Hosting Services or support thereof in accordance with
this Agreement, or (iv) CP is subject to an Adverse Change of Control. As used
in this Section 2.5, "Adverse Change of Control" means a change in ownership of
CP so a majority of the voting stock in CP is held by an entity that offers
Internet Registrar or Registry services that compete with NSI's services.
2.6 IP Address Space. CP shall maintain an inventory of Internet Protocol
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("IP") address space sufficient to satisfy NSI's quarterly projections of NSI
Customers of the E-mail Hosting Services. Within 5 business days of the
Effective Date and no later than 15 days before the first day of each calendar
quarter commencing July 1, 1998, NSI will provide CP its quarterly projections
of the anticipated number of mailboxes to be hosted by CP for NSI Customers for
such quarter. Within 5 days after the beginning of each calendar quarter, CP
shall have available for use by NSI sufficient IP address space inventory to
meet NSI's quarterly projections. CP's failure to maintain the necessary
inventory of IP address space to meet NSI's quarterly projections shall
constitute a material breach of the Agreement pursuant to Article 10.3 below.
2.7 Branding of Web Mail Page. Within 10 days from the receipt of all necessary
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logos, texts and images ("Branding Materials") from NSI pursuant to Article
3.3.1 below, CP shall develop a branded Web Mail Page and shall provide, or
otherwise make available to NSI, such developed Web Mail Page for NSI's review
and approval. Once approved, CP shall only be obligated to make one change to
the look and feel of the branded Web Mail Page at no additional charge.
ARTICLE 3. NSI OBLIGATIONS
3.1 Requirements. NSI hereby agrees that it will offer, access, and make the E-
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mail Hosting Services available to NSI Customers pursuant to a Terms of Use
Agreement similar in content and no less protective of CP's rights than the
one set forth in Exhibit D to this Agreement, as may be modified by NSI from
time to time upon notice to CP ("Terms of Use"). NSI agrees to obtain consent
from each NSI Customer of the Terms of Use prior to such Customer's initial
use of the E-mail Hosting Services.
3.2 New Account Transition of Existing Account. NSI will provide to CP
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information, such as the domain name, e-mail addresses and passwords ("Customer
Information") necessary for CP to open a new account or transition the NSI
Customers' current e-mail systems to CP's System. Upon receipt of Customer
Information from NSI for each NSI Customer, CP shall perform the set-up and
other initial services before such NSI Customer will have access to the CP
System. The Parties agree to work together to achieve a transition to the CP
System that is transparent to NSI Customers.
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3.3 Branding of Web Mail Page
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3.3.1 Provision. Development and Approval - NSI shall provide CP with all
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Branding Materials necessary for CP to brand NSI's Web Mail Page. NSI
warrants and represents to CP that NSI has full power and authority to
provide to CP, and to authorize CP's use of, the Branding Materials
provided by NSI for branding the Web Mail Page, and agrees to defend
and indemnify CP with respect to any claims arising from CP's use of
such Branding Materials.
3.3.2 Proprietary Rights - NSI grants to CP a non-exclusive, non-transferable,
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worldwide, royalty-free, license to reproduce, display, perform,
modify, and otherwise use the Branding Materials for the purpose of
branding the Web Mail Page and making such Web Mail Page available
through the E-mail Hosting Services to NSI Customers and no other
purpose. NSI shall retain all Proprietary Rights it may have in and to
the Branding Materials. CP shall retain all Proprietary Rights in and
to the CP Services (not including the Branding Materials as
incorporated into NSI's Web Mail Page) and all development tools,
routines, subroutines, applications, software and other materials (not
including the Branding Materials) that CP may use in connection with
branding the Web Mail Page.
ARTICLE 4. PROGRAM MANAGERS/MEETINGS
4.1 CP Program Manager. CP hereby appoints Xxxxxxxxx Dumlea as Program Manager
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to manage the relationship established by this Agreement (the "CP Program
Manager") who will:
(a) have overall managerial responsibility for the E-mail Hosting Services; (b)
participate in required NSI scheduled meetings and planning sessions relating to
the E-mail Hosting Services as reasonably requested by NSI; (c) serve as CP's
primary liaison to NSI for the E-mail Hosting Services; and (d) coordinate,
oversee, and monitor CP's performance of the E-mail Hosting Services with the
applicable CP managers responsible for such performance. CP may change the
Program Manager by providing 14 days prior written notice to NSI. In addition to
the CP Program Manager, upon mutual agreement of the Parties, CP shall provide,
at no cost to NSI, a customer support FTE who will be located in an office
provided by NSI in its Herndon, VA operations center to resolve escalations.
4.2 NSI Program Managers. NSI hereby appoints Xxxx Xxxxxxxx as its Engineering
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Program Manager and Xxxx Xxxxxxx as its Marketing and Strategic Program
Manager to manage the relationship established by this Agreement (the "NSI
Program Managers") who will: (a) have overall managerial responsibility for
NSI's responsibilities under this Agreement; (b) serve as the primary liaisons
to the CP Program Manager; (c) have direct access to NSI's key decision
makers; and (d) be able to call upon the experience, expertise and resources
of NSI as needed to properly perform its duties hereunder. At any time, NSI
may change the NSI Program Managers by providing notice to CP.
4.3 Status Meetings. The Parties hereby agree to have meetings involving the
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senior management of each Party no less than once per calendar year quarter to
review the status of performance of the E-mail Hosting Services and resolve any
outstanding issues relating to the Agreement or the E-mail Hosting Services. In
addition, the Parties agree to have regular (no less than bi-monthly) marketing
and strategic review meetings at which mutual business opportunities will be
identified and marketing programs defined.
ARTICLE 5. PRICING/PAYMENT AND OTHER CONSIDERATION
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5.1 Pricing and Payment. Exhibit B specifies CP's prices for the E-mail Hosting
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Services and other payment provisions. Such prices are valid for the Term of
this Agreement and any extensions thereto. CP hereby certifies that the prices
contained in Exhibit B for the E-mail Hosting Services are no higher than those
charged to Comparable Customers. For purposes of this Article 5.1, "Comparable
Customers" means other CP customers that purchase similar services in similar
quantities with similar mailbox requirements and features, but does not include
any web hosting companies with similar e-mail volumes or any free e-mail
providers. In the event CP enters into an e-mail services agreement ("Comparable
Agreement") with any Comparable Customer which charges prices to the Comparable
Customer that are lower than the corresponding prices set forth in Exhibit B, CP
shall also reduce the prices of its E-Mail Hosting Services to NSI. Any price
reduction to NSI shall be effective as of the commencement of services under the
Comparable Agreement. All amounts payable hereunder are exclusive of any sales,
use, excise, property or any other taxes associated with the NSI Customers'
access to or use of the CP System. NSI is responsible for payment of any and all
such taxes (excluding taxes based on CP's net income).
5.2 Other Consideration.
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(i) Subject to the provisions of paragraph 5.2 (iii) below, CP agrees to
provide NSI with a warrant to purchase **** shares of capital stock of CP (as
adjusted for any stock splits, stock dividends or similar recapitalization
following the Effective Date).
(ii) The exercise price and the type of stock subject to the warrant will be
as follows: (1) In the event CP raises at least $5 million in equity in a
private placement occurring prior to December 31, 1999 (a "Financing"), the
warrant shall be exercisable, concurrent with the closing of the Financing,
for the stock ("Financing Stock") issued in the Financing. The exercise price
of the warrant shall be **** of the price at which the Financing Stock is sold
in the Financing for the initial 500,000 shares and **** of such price for the
second 500,000 shares; or (2) In the event a Financing does not occur prior to
December 31, 1999, the warrant shall be exercisable, concurrent with the
closing of the Initial Public Offering ("IPO"), for the common stock, and the
exercise price of the warrant shall be **** of the low end price of CP's
preliminary IPO Form S-1.
(iii) CP's obligations under paragraph (i) above are subject to all of the
following conditions:
a. NSI must be current on all payments under this Agreement;
b. NSI must not have any uncured material breach of the Agreement at the time
the warrant is exercised; and
c. The issuance of such warrants shall be subject to compliance with all
applicable laws, rules and regulations, including without limitation
federal and state securities laws and regulations.
As further consideration, during the Term of the Agreement, CP agrees to provide
NSI with one seat on its Technical Advisory Committee to the CP Board of
Directors.
5.3 Reports and Audit. Each Party shall submit with each of its payments to the
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other Party a detailed report of the calculation of each such payment at the
request of the other Party. Each Party will retain records relevant to its
calculations of the payments made to the other Party during the term of this
Agreement and for a two-year period thereafter. Each Party shall have the right,
at its expense, acting through a certified public accountant, to examine and
audit such records at all reasonable times, on at least ten (10) days prior
notice to the other Party, but no more than once every six (6) months.
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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ARTICLE 6. WARRANTIES
6.1 NSI Warranties. NSI represents and warrants that: (a) it is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware; (b) it has all requisite power and authority to execute this
Agreement and to perform its obligations hereunder; (c) the execution, delivery
and performance of this Agreement has been duly authorized and this Agreement is
a valid and binding contract enforceable in accordance with its terms, and; (d)
CP's use of any data, information, or materials, including without limitation
the Branding Materials, provided by NSI does not and will not infringe, or
constitute an infringement or misappropriation of any Proprietary Right of any
third party. NSI hereby grants to CP a non-exclusive, non-transferable, fully
paid license to use the NSI Proprietary Rights only in accordance with the terms
and conditions of this Agreement. Such license shall expire upon the termination
of this Agreement.
6.2 CP Warranties. CP represents and warrants that: (a) it is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of California; (b) it has all requisite power and authority to execute
this Agreement and to perform its obligations hereunder; (c) the execution,
delivery and performance of this Agreement has been duly authorized and this
Agreement is a valid and binding contract enforceable in accordance with its
terms; (d) CP shall perform the E-mail Hosting Services in accordance with the
terms set forth in this Agreement; (e) CP's E-mail Hosting Services do not
infringe, or constitute an infringement or misappropriation of, any Proprietary
Right of any third party; and (f) the E-mail Hosting Services, the CP System and
all software and hardware relating to the services and the system support the
year 2000 and are capable of correctly processing, providing and receiving date
data, as well as properly exchanging accurate date data with all products and
services (e.g., hardware, software and firmware) with which the services and the
system are designed to be used.
ARTICLE 7. LIMITATION OF LIABILITY
7.1 IN NO EVENT SHALL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE
OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY,
INDIRECT, SPECIAL OR INCDENTAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, EVEN if THE PARTY OTHERWISE LIABLE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 CP shall not be responsible for any delays, errors, failures to perform,
interruptions or disruptions in the E-mail Hosting Services or the CP Systems
caused by or resulting from any act, omission or condition beyond CP's
reasonable control, whether or not foreseeable or identified, including without
limitation acts of God, strikes, lockouts, riots, acts of war, governmental
regulations, fire, power failure, earthquakes, severe weather, floods or other
natural disaster or NSI's, NSI Customer's or any third party's hardware,
software or communications equipment or facilities.
ARTICLE 8. PROPRIETARY INFORMATION
8.1 Non-disclosure. Each Party agrees to keep confidential and to use only for
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purposes of performing under this Agreement, any Proprietary Information of the
other Party disclosed pursuant to this Agreement which is appropriately marked
as proprietary or confidential or which
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would reasonably be considered of a proprietary or confidential nature. Each
Party shall protect the other Party's Proprietary Information from unauthorized
dissemination and use with the same degree of care that such Party uses to
protect its own like information, but in no event less than reasonable care, for
a period of three years from receipt of the disclosing Party's Proprietary
Information. Neither Party will disclose to third parties the other Party's
Proprietary Information without the prior written consent of the other Party.
Except as expressly provided in this Agreement, no ownership or license rights
are granted in any Proprietary Information. Both parties acknowledge that the
restrictions contained in this Paragraph 8.1 are reasonable and necessary to
protect their legitimate interests and that violation of these restrictions will
cause irreparable damage to the other Party and each Party agrees that the other
Party shall be entitled to injunctive relief against each violation. Upon any
termination of this Agreement, each Party shall return to the other Party all
Proprietary information of the other Party, and all copies thereof, in the
possession, custody or control of the Party.
8.2 Development Rights. The Parties' obligations of confidentiality under this
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Agreement shall not be construed to limit either Party's right to independently
develop or acquire products without the use of the other Party's Proprietary
Information.
ARTICLE 9. INDEMNIFICATION
Each Party (the "Indemnitor") shall defend, indemnify, and hold the other
Party (the "Indemnitee") harmless from and against any third party claims,
losses, actions, demands or damages, including reasonable attorney's fees,
resulting from any act, omission, negligence, or performance under this
Agreement by the Indemnitor, its customers, agents or representatives. This
indemnity shall not apply to the extent the portion of such claim, liability,
loss, cost, damage or expense is the result of the negligence or willful
misconduct of the Indemnitee, its customers, agents or representatives, or to
the extent liability is disclaimed or limited by either Party under this
Agreement. The indemnity obligations set forth in this Section are contingent
upon: (a) the Indemnitee giving prompt written notice to the Indemnitor of any
such claim(s); (b) the Indemnitor having sole control of the defense or
settlement of the claim; and (c) at the Indemnitor's request and expense, the
Indemnitee cooperating in the investigation and defense of such claim(s).
ARTICLE 10. TERM AND TERMINATION
10.1 Term. This Agreement shall commence as of the Effective Date and shall
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continue in effect for a one year period (the "Term") or until terminated as
provided in this Article. Unless either Party gives the other Party at least 60
days written notice prior to the end of the Term of its intent not to renew the
Agreement, the Agreement shall renew automatically thereafter for one year
periods until one Party provides the other ninety days written notice of its
intent to terminate.
10.2 Termination for Convenience. Notwithstanding the foregoing, NSI may
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terminate this Agreement at any time, without cause, upon ninety days prior
written notice to CP.
10.3 Termination for Breach. Notwithstanding the foregoing, either Party may
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terminate this Agreement by giving to the other Party written notice of such
termination and an opportunity to cure within thirty (30) days after receipt of
such notice, upon the occurrence of any of the following events: (i) the other
Party materially breaches or defaults in any of the material terms or conditions
of this Agreement, (ii) the other Party makes any assignment for the benefit of
Critical Path\Critical Path K Proprietary Page 8
creditors, is insolvent or unable to pay its debts as they mature in the
ordinary course of business, or (iii) any proceedings are instituted by or
against the other Party in bankruptcy or under any insolvency laws or for
reorganization, receivership or dissolution.
10.4 Effect of Termination. Upon NSI's breach of this Agreement and any
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termination of this Agreement as a result of NSI's breach, CP shall immediately
cease providing all E-mail Hosting Services, and NSI and Customers shall no
longer have access to the CP System. Upon CP's breach of this Agreement and any
termination of this Agreement as a result of CP's breach or any other
termination of this Agreement except for NSI's breach, CP shall work with NSI in
the migration of the E-mail Hosting Services and e-mail messages to another
vendor of NSI's choice or to NSI's e-mail system. Thereafter, CP shall delete
all stored e-mail messages of NSI's Customers on the CP System. Except in the
event of termination for CP's breach, within fifteen (15) days of a termination
of this Agreement, NSI shall pay to CP all unpaid fees accrued prior to
termination.
10.5 Survival. Sections 5.1, 5.3,6,7, 8,9, 10.4, 10.5, 13, 14, 17 and Exhibit B
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(as to amounts accrued but unpaid) shall survive any expiration or termination
of this Agreement.
ARTICLE 11. ADVERTISING/PUBLICITY
11.1 Advertisements and Commercial Use. If NSI, in its sole discretion, decides
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to include advertisements in its web interface, either Party may solicit third
parties for advertisements to be included on the Web Mail Page of the web site
through which the E-mail Hosting Services are provided. The Parties shall
share in the Advertising Revenue resulting therefrom as provided in Exhibit B.
Each Party shall be solely responsible for all obligations, liabilities and
duties under any and all agreements with third parties with regard to such
advertisements, unless otherwise expressly agreed in writing by the other
Party. NSI agrees that it will not sell, make commercial use of, or otherwise
generate income from, the E-mail Hosting Services or the CP System, other than
making the E-mail Hosting Services and the CP System available to NSI
Customers, including any NSI distribution partners, as part of the NSI
Services or obtaining advertising to be included on its Web Mail Page as
permitted under the terms and conditions of this Agreement.
11.2 Publicity. During the term of this Agreement, either Party may use the
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other Party's name in news releases, articles, brochures, marketing materials,
advertisements and other publicity or promotions, subject to the other Party's
prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
ARTICLE 12. NOTIFICATION
All notices and requests in connection with this Agreement shall be deemed given
as of the day they are received either by messenger, delivery service, or in
mail, postage prepaid, certified or registered, return receipt requested, and
addressed as follows:
To Network Solutions: To CP:
000 Xxxxxxx Xxxx Xxxxx 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq. Attention: Xxxxxx Xxxxx
Phone: (000)-000-0000 Phone: (000)000-0000
Fax: (000)-000-0000 Fax: (000)000-0000
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Copy to: General Counsel Copy to: Xxxxx Xxxxx, Esq.
Fax: (000) 000-0000 Pillsbury Madison & Sutro LLP
Fax: (000)000-0000
ARTICLE 13. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed as creating an employer-employee
relationship, a partnership, or a joint venture between the parties.
ARTICLE 14. GOVERNING LAW
This Agreement shall be governed by the laws of the Commonwealth of Virginia,
excluding its conflicts of law rules. Both Parties consent to personal
jurisdiction and venue in the federal courts sitting either in the eastern
district of the Commonwealth of Virginia or the northern district of California.
ARTICLE 15. COMPLIANCE WITH LAWS
Each Party agrees to comply with all applicable laws, rules and regulations,
including any Internet regulations or policies and applicable export laws, in
its performance under this Agreement.
ARTICLE 16. ASSIGNMENT
Neither Party may assign this Agreement or any of its rights or delegate any of
its duties under this Agreement without the prior written consent of the other;
provided that either Party shall have the right to assign its rights and
obligations hereunder to its parent, successor, or to any subsidiary or
affiliate upon notice to the other Party. Any purported assignment or delegation
without such required consent shall be null and void.
ARTICLE 17. CONSTRUCTION
If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect the
intent of the parties, and the remainder of this Agreement will continue in full
force and effect. Failure by either Party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any other
provision. This Agreement has been negotiated by the parties and their
respective counsel and will be interpreted fairly in accordance with its terms
and without any strict construction in favor of or against either Party.
ARTICLE 18. ENTIRETY
This Agreement shall not be effective until signed by both parties. This
Agreement constitutes the entire agreement between the parties with respect to
the services and all other subject matter hereof and supersedes all prior and
contemporaneous communications. This Agreement shall not be modified except by
written agreement dated subsequent to the date of this Agreement and signed on
behalf of NSI and CP by their respective duly authorized representatives.
Critical Path\Critical Path K Proprietary Page 10
IN WITNESS WHEREOF, the Parties to this Agreement have executed and delivered
this Agreement as of the date first above written.
CRITICAL PATH, INC. NETWORK SOLUTIONS, INC.
By______________________________ By_____________________________
Name____________________________ Name___________________________
Its_____________________________ Its____________________________
Date____________________________ Date___________________________
Critical Path\Critical Path K Proprietary Page 11
EXHIBIT A
---------
DESCRIPTION OF E-MAIL HOSTING SERVICES
--------------------------------------
A: Project Scope
CP shall be responsible for all aspects of delivering the E-Mail Hosting
Services to NSI and NSI's Customers at the required performance levels as set
forth in this Exhibit A.
B: CP System Requirements
CP shall furnish all necessary facilities, mail collection system
equipment, software and telecommunications services to provide the E-Mail
Hosting Services to NSI and the NSI Customers. CP shall provide a backup site
for its message center The backup site must provide fully redundant
capabilities. In the event of a failure within a message center the backup
center shall take over within 1 hour. Such backup facility shall be operational
by July31, 1998. In addition, within 60 days after the Effective Date, CP shall
provide NSI with a disaster recovery plan that will facilitate recovery of the
CP System within 12 hours of a disaster. All components needed to carry out the
plan must be available as scheduled in the plan. In the event of any disaster,
CP will use commercially reasonable efforts to recover the CP System and restore
provision of the E-mail Hosting Services in accordance with the disaster
recovery plan; provided, however, that any such disaster recovery plan shall not
expand CP's limitation of liability as provided under the Agreement, nor shall
any failure by CP to effect recovery within 12 hours of a disaster necessarily
be deemed a material breach of this Agreement unless otherwise provided under
the Agreement.
CP shall also provide a second data center, that is geographically
dispersed from its primary west coast data center, by July 31, 1998 to provide
for the continued operation of the CP System during the primary data center
downtime that is transparent to NSI Customers.
The CP System uptime measured from the CP externally connected router
shall be **** as measured in each calendar month. CF shall perform scheduled
maintenance and upgrades on the CP System from 3am - 6am EST Saturday or
Sunday. The CP System and facility shall be year 2000 compliant.
CP's processes, which interact with NSI, shall be monitorable by NSI. In
addition, CP shall provide NSI with access to the network monitoring components
necessary for NSI to monitor key components used in the provisioning process. On
or before December31, 1998, CP shall provide NSI access to its SNMP agent
process. Such SNMP agent shall be protected from public access and will contain
mutually agreed-upon read-only variables.
The CP System capacity shall meet or exceed the quarterly projections of
required mailboxes for NSI Customers. CP shall provide NSI with projected growth
and expansion plans of the CP System in response to NSI's Customer quarterly
projections for growth. This information shall be reported in CP's monthly
status report.
The CP System shall conform to the following requirements for the display
to user:
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Critical Path\Critical Path K Proprietary Page 12
All features on web pages must display in 3.0 or above Internet Explorer
or Netscape Navigator. Until such time as browsers are able to accept Java
applets, without prior mutual agreement of the Parties, Java applets shall not
be used. All screens must be viewable with in a 640 X 480 display.
The CP System APP used for provisioning shall have the following
capabilities:
Phase I:
Add/Delete domain
Add/Update/Delete mailbox
Add/Update/Delete forward
Phase II:
Suspend mailbox
Domain status
Mailbox status
Forward status
CP shall provide NSI access to its provisioning interface. This interface
shall be available to NSI for remote provisioning of domain accounts, mailboxes,
and poplinks. NSI Customer status information shall also be available to NSI
through the APP.
C: Project Management Requirements - See Exhibit E, Service Level Agreement.
D: Testing
CP shall provide and make available a test system that is a stable
replication of the live system for the testing of new features for a 30 day
period prior to the planned release of such new features to the live system. The
primary (stable) test system shall meet the same uptime requirements as the live
system and provide the same processing monitoring capability. Once new features
are released to the live system the primary test system will be updated to
reflect the new features added to the live system within 24 hours after such
release to the live system.
In addition, upon launch of the E-mail Hosting Services, CP shall makes
its provisioning protocol available for use by NSI. Upon the development of
new versions or releases of the CP provisioning protocol, and upon NSI's
request, CP may use NSI as a beta test site for such new releases or versions
of its provisioning protocol. Any such testing shall be in accordance with a
separate beta test site agreement. Upon the availability of new versions or
releases of the provisioning protocol to CP's customers generally, CP shall
provide NSI with a non-transferable, non-exclusive limited license to use such
provisioning protocol and its web interface.
E. Support Requirements - The E-mail Hosting Services shall include support, as
set forth below to NSI. CP shall use its reasonable efforts to respond to
requests for support within twelve (12) hours of receipt of such request. In
addition, CP shall provide telephone support directly to NSI. NSI shall be
responsible for first-level telephone support to NSI Customers and for all other
support not otherwise specified herein to NSI Customers.
1. Support via Email:
Critical Path\Critical Path K Proprietary Page 13
CP shall provide support via email for NSI Customer inquiries that can not
be resolved by NSI 1st or 2nd Level. E-mail inquires may be sent to CP from
either NSI 1st or 2nd Level support operations. Prior to launch of the E-Mail
Hosting Services to NSI's Customers, CP and NSI will develop criteria for
escalation of NSI Customer e-mail inquiries. The performance requirements for e-
mail inquiries are:
. E-mail inquiry will be resolved within 12 hours of receipt by CP.
. If the inquiry can not be resolved within 12 hours, an e-mail (where
appropriate) will be sent to NSI 1st or 2nd Level support informing them that
the issue is still pending.
. If the inquiry can not be resolved within 24 hours, a status e-mail will be
sent to NSI 1st or 2nd Level every 24 hours, or at an agreed upon interval
mutually agreed upon by the Parties depending upon the severity of the
problem, until resolution informing them that the issue is still pending.
2. Help Desk Support via telephone:
CP will provide Help Desk Support for escalation of issues that can not be
resolved by NSI 1st or 2nd Level. NSI will not transfer NSI Customer calls,
unless directed by CP. The performance requirements for NSI Customer calls are:
Telephone escalations shall be resolved within 12 hours of receipt by CP.
. If the escalation can not be resolved within 12 hours, an e-mail (where
appropriate) will be sent to the NSI 1st or 2nd Level support informing
them that the issue is still pending. If an email is not appropriate, a
phone call shall be made to NSI 1st or 2nd Level to inform NSI of the
status.
. If the escalation can not be resolved within 24 hours, a status e-mail, when
appropriate, will be sent to the NSI 1st or 2nd Level support every 24
hours or at an agreed upon interval depending upon the severity of the
issue, until resolution informing them that the issue is still pending.
. Escalations to CP will be via a toll free number.
. CP will provide sufficient coverage for the performance metrics to be
mutually agreed upon by the Parties. Prior to the launch of the E-Mail
Hosting Services to NSI Customers, CP and NSI will develop a Management and
Off-Hours Escalation Process for emergency situations.
. Telephone Support will be available 5 days a week, 15 hours a day (8am to
11pm EDT/EST Monday through Friday), at the launch date and effective
October 1, 1998 such support will be increased to 7 x 24 x 365.
. Prior to the time when the telephone support is increased to 7 x 24 x 365,
during off hours, in emergency situations, CP shall provide pager based ,
on-call support to NSI 1st and 2nd Level.
CP shall use the NSI Tracking System, when available, to track all
inquiries from NSI (1st and 2nd level) and to respond to NSI.
3. Training:
CP, at no cost to NSI, shall assist in the development and implementation
of training programs for 1st and 2nd Level NSI support. CP, ****, shall
provide updates to training materials for any product modifications,
improvements or changes. CP, at no cost to NSI, shall assist in the
development and implementation of training for any product modifications,
improvements or changes.
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Critical Path\Critical Path K Proprietary Page 14
4. Other materials (for support documentation and web page support): CP,
at no cost to NSI, shall provide NSI original and updated as
required:
. Troubleshooting guides for common problems
. Common questions and answers
. Knowledge Base with search functionality (when available)
CP, at no cost to NSI, shall assist in the development and provide NSI with
the following material and updates as required:
. Standard scripting for use on telephone support lines.
. Standard responses for use on email responses to Customer inquiries via
email.
F. Mailbox Requirements - The CP System shall be able to meet the requirements
of NSI's service offering. NSI's service offering to its customers will be 3
free web and Post Office Protocol ("POP") mailboxes, for the remaining months of
1998, with the purchase of a second- level domain name. To qualify for this
offer the NSI Customer must reserve its domain name with NSI. If the NSI
Customer wants to add additional mailboxes at the time of purchase they will
have the option of doing so at a price to be determined by NSI at its sole
discretion.
1. Storage Capacity - Each mailbox provided hereunder shall have a maximum
storage capacity of 10MB. NSI may purchase additional storage space from CP upon
payment of CP's then-current fees. CP shall notify NSI in the event any NSI
Customer's mailbox is approaching or exceeds the maximum limit. Thereafter, if
such Customer exceeds the maximum storage capacity, CP may delete e-mail
messages from the affected mailboxes, at CP's discretion upon prior notice to
NSI.
2. Features - The Version 1 release of NSI service offering will include
the following features:
1. Web and POP mail integrated
2. Auto-forward
3. **** uptime
4. send/receive
5. spam blocking
6. nicknames
7. LDAP (to be available August 1998)
8. Attachments to 4MB
9. Localization
10. Postmarking
11. POP retrieval
12. Header options
13. Account provisioning
14. Snarfing
15. POP links
16. Preferences/customizations - web mail only
17. Folders - web mail only
3. Additional Features - CP will provide NSI with a revised feature release
schedule on a monthly basis. In the event NSI decides to build, at its sole
cost, a "Roll-Your-Own" mail system, NSI may terminate this Agreement pursuant
to Article 10.2, and CP hereby agrees to reasonably
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Critical Path\Critical Path K Proprietary Page 15
cooperate with NSI, upon written notice from NSI, to transition NSI Customers
over to NSI's "Roll-Your-Own" system in accordance with Article 10.4 of the
Agreement.
Critical Path\Critical Path K Proprietary Page 16
EXHIBIT B
---------
PRICES AND PAYMENT SCHEDULE
---------------------------
This Prices and Payment Schedule is attached to and made a part of the E-
mail Services Agreement between NSI and CP and is subject to the terms and
conditions of the Agreement.
A. Prices - NSI agrees to pay CP the following amounts for the
following Services. NSI will pay CP for mailboxes only upon activation by
the NSI Customer.
1. Basic hosting fee: NSI will pay to CP a basic monthly Post Office
------------------
Protocol ("POP")/Web integrated or web only email hosting fee per
mailbox of $**** for POP hosting, which includes access to and use of
CP's mail administration center, and until such time as spam blocking
becomes an optional feature, no charge per mailbox for spam blocking
which is included in the basic package but no other premium features.
Upon CP's making spam blocking an optional feature the fee payable for
such feature will be no more than $**** per mailbox.
2. POP link forwarding feature for a "catchall account" (to span multiple
----------------------------------------------------------------------
domains per account): NSI will pay to CP a fee of $**** per mailbox
--------------------
per month for POP link forwarding. "Catchall accounts" are those
default postmaster accounts registered to each domain name that are
not utilized, but forwarded on.
3. Value added features: NSI will pay to CP ****% of NSI's retail price
--------------------
received from NSI Customer for each subscribed service.
Suggested Retail Price for Value-Added Features of the Services:
Virus Protection TBD
----------------------------------------------------------
Certified Delivery TBD
----------------------------------------------------------
Archiving (storage > 10Mb) TBD
----------------------------------------------------------
B. Branding of Web Mail Page
1. Fees - NSI will pay to CP a one-time fee of $**** for CP's branding
----
of the Web Mail Page. NSI will pay CP a one-time fee of $**** for development of
an automatic sign- up page. Once approved, CP shall only be obligated to make
one change to the look and fee] of the branded Web Mail Page at no additional
charge. Any further requested changes will be chargeable at the rate of $****
each.
C. Support - The E-mail Hosting Services shall include web-based
support (i.e., through e-mail), including an HTML version of CP's support
FAQs, to NSI and NSI Customers at no additional charge.
D. Payment by NSI to CP - All fees for the E-mail Hosting Services
shall be applicable for any month, or portion thereof, in which such services
are rendered. All fees are payable monthly by NSI within thirty days of the
end of each month monthly in accordance with this Exhibit B. In addition, if
during the previous month, CP performed any work on the
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Critical Path\Critical Path K Proprietary Page 17
branding of the Web Mail Page as provided herein, NSI shall include the
applicable fees for such work in the next month's payment. Payments received
by CP after the due date may be subject to a late fee of one and one-half
percent (1.5%) per month, or, if less, the maximum amount allowed by
applicable law.
E. Advertising Revenues
1. Sharing of Advertising Revenues - The Parties shall share revenues
-------------------------------
as follows: ****% CP and ****% NSI for all Advertising Revenues.
2. Payment - NSI shall pay to CP its share of Advertising Revenues
-------
received by NSI during the preceding month within thirty days of the end of each
month, subject to the terms and conditions of Section D above. CP shall pay NSI
its share of Advertising Revenues received by CP during the preceding month
within thirty days after the end of each month during the term of this
Agreement. If, in prior remittances, the paying Party included revenues in the
calculation of Advertising Revenues, as to which during the preceding month the
Party granted credits or refunds, then the Party may reduce the Advertising
Revenues paid to the other Party by the amount of any such credits or refunds.
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Critical Path\Critical Path K Proprietary Page 18
EXHIBIT C
---------
RESERVED
Critical Path\Critical Path K Proprietary Page 19
EXHIBIT D
SERVICE AGREEMENT
A. AGREEMENT. In this Service Agreement ("Agreement") "you" and "your" refer to
each customer and "we", us" and "our" refer to Network Solutions, Inc. ("NSI").
This Agreement explains our obligations to you, and explains your obligations to
us for various Network Solutions services. By selecting our Network Solutions
service(s) you have agreed to establish an account with us for such services.
When you use your account or permit someone else to use it to purchase
additional Network Solutions service(s) or to cancel your Network Solutions
service(s) (even if we were not notified of such authorization), this Agreement
covers such service or actions. By using the service(s) provided by NSI under
this Agreement, you acknowledge that you have read and agree to be bound by all
terms and conditions of this Agreement and any pertinent rules or policies that
are or may be published by NSI. The terms and conditions marked with an (*)
apply to customers of the Network Solutions E-mail Service only.
B. FEES, PAYMENT AND TERM. As consideration for the services you have selected,
which are indicated on the cover page of this Agreement, you agree to pay for
the Network Solutions service(s), which includes any InterNIC fees to register
or reserve your domain name. The term(s) of the Network Solutions service(s) you
have selected are also set forth on the cover page of this Agreement. As further
consideration for the Network Solutions service(s), you agree to: (1) provide
certain current, complete and accurate information about you as required by the
registration process and (2) maintain and update this information as needed to
keep it current, complete and accurate. All such information shall be referred
to as account information ("Account Information"). You hereby grant NSI the
right to disclose to third parties certain Account Information about you in a
publicly accessible directory. However, such disclosures will exclude your
contact information, e-mail address and account number, unless: (1) you
expressly permit NSI to disclose such information; or (2) NSI is required to
disclose such information by any applicable law or legal process served on NSI
(e.g., discovery, service of process, collection, etc.).
*C. DESCRIPTION OF E-MAIL SERVICE. NSI is providing you with a capability to
send and receive electronic mail ("Network Solutions E-mail Service") via the
World Wide Web ("Web") and on NSI's system. You must: (1) provide all equipment,
including a computer and modem, necessary to establish a connection to the Web;
and (2) provide for your own connection to the Web and pay any telephone service
fees associated with such connection. NSI has set no fixed upper limit on the
number of messages you may send or receive through the Network Solutions E-mail
Service; however, NSI retains the right, at NSI's sole discretion, to determine
whether or not your conduct is consistent with this Agreement and NSI's
operating rules or policies and may terminate the Network Solutions E-mail
Service if your conduct is found to be inconsistent with this Agreement, such
rules or policies. Your right to use the Network Solutions E-mail Service is
personal to you. You agree not to resell the E-mail Service, without the prior
express written consent of NSI.
*D. PRIVACY POLICY. E-mail is private correspondence between the sender and the
recipient. It is NSI's policy to respect the privacy of its customers.
Therefore, NSI will not monitor, edit or disclose the contents of your private
communications unless required to do so by law or in the good faith belief that
such action is necessary to; (1) conform to the law or comply with legal process
served on NSI; (2) protect and defend the rights or property of NSI; or (3) act
under exigent circumstances to protect the personal safety of its customers or
the public.
You acknowledge and agree that NSI neither endorses the contents of any of your
communications nor assumes responsibility for any threatening, libelous,
obscene, harassing or offensive material contained therein, any infringement of
third party intellectual property rights arising therefrom or any crime
facilitated thereby. You acknowledge and agree that certain technical processing
of e-mail messages and their content may be required to: (1) send and receive
messages; (2) conform to connecting networks' technical requirements; (3)
conform to the limitations of the Network Solutions E-mail Service; or (4)
conform to other similar requirements.
*E. CUSTOMER CONDUCT. You are solely responsible for the content of your
transmissions through the Network Solutions E-mail Service. Your use of the
Network Solutions E-mail Service is subject to all applicable local, state,
national and international laws and regulations. You agree: (1) to comply with
U.S. law regarding the transmission of technical data exported from the United
States through the Network Solutions E-mail Service; (2) not to use the Network
Solutions E-mail Service for illegal purposes: (3) not to interfere with or
disrupt networks connected to the Network Solutions E-mail Service: and (4) to
comply with all regulations, policies and procedures of networks connected to
the Network Solutions E-mail Service.
The Network Solutions E-mail Service makes use of the Internet to send and
receive certain messages. Your conduct is therefore subject to applicable
Internet regulations, policies and procedures. You agree not to use the Network
Solutions E-mail Service for chain letters, junk mail, spamming or any use of
distribution lists to any person who has not given specific permission to be
included in such a process.
You agree not to transmit through the Network Solutions E-mail Service any
unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or
otherwise objectionable material of any kind or nature. You further agree not to
transmit any material that encourages conduct that could constitute a criminal
offense, give rise to civil liability or otherwise violate any applicable local,
state, national or international law or regulation. Attempts to gain
unauthorized access to other computer systems are prohibited. You agree not to
interfere with another customer's use and enjoyment of the Network Solutions E-
mail Service or another entity's use and enjoyment of similar services. NSI's
contractor, Critical Path, Inc. shall be an intended third party beneficiary of
the Network Solutions E-mail Service customers' obligations under this Agreement
and thus shall be entitled to enforce those obligations against such customers
as if a party to this Agreement. NSI may, at its sole discretion, immediately
terminate Network Solutions E-mail Service if your conduct fails to conform with
these terms and conditions.
Critical Path\Critical Path K Proprietary Page 20
*F. PROPRIETARY RIGHTS TO CONTENT. You acknowledge that content, including but
not limited to text, software, music, sound, photographs, video, graphics or
other material contained in either advertisements or e-mail-distributed,
commercially produced information presented to you by the Network Solutions E-
mail Service ("Content') by NSI or NSI's advertisers, is protected by
copyrights, trademarks, service marks, patents or other proprietary rights and
laws. You therefore agree to use this content as expressly authorized by the
Network Solutions E-mail Service or the advertiser. You agree not to copy,
reproduce, distribute or create derivative works from this content without
express authorization to do so by NSI or the advertiser.
G. MODIFICATIONS TO AGREEMENT. You agree, during the period of this Agreement,
that we may: (1) revise the terms and conditions of this Agreement; and (2)
change the services provided under this Agreement at any time. Any such revision
or change will be binding and effective immediately on posting of the revised
Agreement or change to the service(s) on NSI's homepages, or on notification to
you by e-mail or United Sates mail. You agree to review NSI's homepages,
including the Agreement, periodically to be aware of any such revisions. If you
do not agree with any revision to the Agreement, you may terminate this
Agreement at any time by providing us with notice by e-mail or United States
mail at the addresses listed on the cover page of this Agreement. Notice of your
termination will be effective on receipt and processing by us. You agree that,
by continuing to use the Network Solutions services following notice of any
revision to this Agreement or change in service(s), you agree to abide by any
such revisions or changes.
H. MODIFICATIONS TO YOUR ACCOUNT. In order to change any of your account
information with us, you must use your Account Number and Password that you
selected when you opened your account with us. Please safeguard your Account
Number and Password from any unauthorized use. In no event will we be liable for
the unauthorized use or misuse of your Account Number or Password.
I. DOMAIN NAME DISPUTE POLICY. If you reserved or registered a domain name
through us you agree to be bound by our current Domain Name Dispute Policy
("Dispute Policy") which is incorporated herein and made a part of this
Agreement by reference. The current version of the Dispute Policy may be found
at our web site: xxxx://xxx.xxxxxxxxxxxxxxxx.xxx/xxxxxxx.xxxx. Please take the
--------------------------------------------
time to familiarize yourself with such policy.
J. DOMAIN NAME DISPUTE POLICY MODIFICATIONS. You agree that we, in our sole
discretion, may modify our Dispute Policy at any time. You agree that, by
maintaining the reservation or registration of your domain name after
modifications to the Dispute Policy become effective, you have agreed to
these modifications. You acknowledge that if you do not agree to any such
modifications, you may request that your domain name be deleted from the
domain name database.
K. DOMAIN NAME DISPUTES. You agree that, if the registration or reservation of
your domain name is challenged by a third party, you will be subject to the
provisions specified in the Dispute Policy in effect at the time of the dispute.
You agree that in the event a domain name dispute arises with any third party,
you will indemnify and hold us harmless pursuant to the terms and conditions
contained in the Dispute Policy.
L. AGENTS. You agree that, if an agent for you (i.e. an Internet Service
Provider, employee, etc.) purchased our Network Solutions service(s) on your
behalf, you are nonetheless bound as a principal by all terms and conditions
herein, including the Dispute Policy.
M. ANNOUNCEMENTS. We reserve the right to distribute information that is
pertinent to the quality or operation of our services. These announcements will
be predominately informative in nature and may include notices describing
changes, upgrades, new products or other information to enhance your identity on
the Internet.
N. LIMITATION OF LIABILITY. You agree that our entire liability, and your
exclusive remedy, with respect to any Network Solutions services(s) provided
under this Agreement and any breach of this Agreement is solely limited to the
amount you paid for such service(s). NSI and its contractors shall not be liable
for any direct, indirect, incidental, special or consequential damages resulting
from the use or inability to use any of the Network Solutions services or for
the cost of procurement of substitute services. Because some states do not allow
the exclusion or limitation of liability for consequential or incidental
damages, in such states, our liability is limited to the extent permitted by
law. We disclaim any and all loss or liability resulting from, but not limited
to: (1) loss or liability resulting from access delays or access interruptions;
(2) loss or liability resulting from data non-delivery or data mis-delivery; (3)
loss or liability resulting from acts of God; (4) loss or liability resulting
from the unauthorized use or misuse of your Account Number or Password; (5) loss
or liability resulting from errors, omissions, or misstatements in any and all
information or services(s) provided under this Agreement; and (6) loss or
liability relating to the deletion of or failure to store e-mail messages.
O. INDEMNITY. You agree to release, indemnify, and hold NSI, its contractors,
agents, employees, officers, directors and affiliates harmless from all
liabilities, claims and expenses, including attorney's fees, of third parties
relating to or arising under this Agreement, including infringement by you, or
someone else using the Network Solutions E-mail Service with your computer, of
any intellectual property or other proprietary right of any person or entity or
from the violation of any NSI operating rule or policy relating to the
service(s) provided. You also agree to release, indemnify and hold us harmless
pursuant to the terms and conditions contained in the Dispute Policy.
P. BREACH. You agree that failure to abide by any provision of this Agreement,
any NSI operating rule or policy or the Dispute Policy, may be considered by us
to be a material breach and that we may provide a written notice, describing the
breach, to you. If
Critical Path\Critical Path K Proprietary
within thirty (30) calendar days of the date of such notice, you fail to
provide evidence, which is reasonably satisfactory to us, that you have not
breached your obligations under the Agreement, then we may delete the
registration or reservation of your domain name
Critical Path\Critical Path K Proprietary Page 21
or terminate your e-mail account. Any such breach by you shall not be deemed to
be excused simply because we did not act earlier in response to that, or any
other breach by you.
Q. NO GUARANTY. You agree that, by registration or reservation of your chosen
domain name, such registration or reservation does not confer immunity from
objection to either the registration, reservation, or use of the domain name.
R. DISCLAIMER OF WARRANTIES. You agree and warrant that the information that
you provide to us to register or reserve your domain name or register for the
Network Solutions E-mail Service is, to the best of your knowledge and belief,
accurate and complete, and that any future changes to this information will be
provided to us in a timely manner according to the modification procedures in
place at that time. You agree that your use of our Network Solutions
service(s) is solely at your own risk. You agree that such service(s) is
provided on an "as is," "as available" basis. NSI EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT. NSI MAKES NO WARRANTY THAT THE NETWORK SOLUTIONS
SERVICE(S) WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES NSI MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO
THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE NETWORK
SOLUTIONS E-MAIL SERVICE OR THAT DEFECTS IN THE E-MAIL SERVICE SOFTWARE WILL
BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NETWORK SOLUTIONS E-
MAIL SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NSI MAKES NO WARRANTY
REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE E-MAIL
SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE E-MAIL SERVICE. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NSI OR THROUGH
THE E-MAIL SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE
ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
S. REVOCATION. You agree that we may delete your domain name or terminate your
right to use the Network Solutions E-mail Service if the information that you
provided to register or reserve your domain name or register for the E-mail
Service, or subsequently to modify it, contains false or misleading information,
or conceals or omits any information we would likely consider material to our
decision to register or reserve your domain name.
T. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to refuse to
register or reserve your chosen domain name or e-mail account, or to delete your
domain name within thirty (30) calendar days from receipt of your payment for
such services. In the event we do not register or reserve your domain name or e-
mail account, or we delete your domain name or e-mail within such thirty (30)
calendar day period, we agree to refund your fees. You agree that we shall not
be liable to you for loss or damages that may result from our refusal to
register or reserve, or delete your domain name or e-mail account.
U. SEVERABILITY. You agree that the terms of this Agreement are severable.
If any term or provision is declared invalid or unenforceable, that term or
provision will be construed consistent with applicable law as nearly as possible
to reflect the original intentions of the parties, and the remaining terms and
provisions will remain in full force and effect.
V. ENTIRETY. You agree that this Agreement, the rules and policies published by
NSI and the Dispute Policy are the complete and exclusive agreement between you
and us regarding our Network Solutions services. This Agreement and the Dispute
Policy supersede all prior agreements and understandings, whether established by
custom, practice, policy or precedent.
W. GOVERNING LAW. You agree that this Agreement shall be governed in all
respects by and construed in accordance with the laws of the Commonwealth of
Virginia, United States of America, excluding its conflict of laws rules. You
and we each submit to exclusive subject matter jurisdiction, personal
jurisdiction and venue of the United States District Court for the Eastern
District of Virginia, Alexandria Division. If there is no jurisdiction in the
United States District Court for the Eastern District of Virginia, Alexandria
Division, then jurisdiction shall be in the Circuit Court of Fairfax County,
Fairfax, Virginia.
X. This is NSI Service Agreement Version Number 2.0. This Service Agreement is
for all Network Solutions services offered by NSI.
Critical Path\Critical Path K Proprietary Page 22
EXHIBIT E
SERVICE LEVEL AGREEMENT
1. Performance
(a) Processing E-mails: Monthly average less than **** seconds response
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time for ****% of requests. Measures server response time only, not network
transmission time. This average does not include any period of unforeseen,
unsolicited bulk email messages that degrade service.
(b) Availability of E-mail Server: Monthly average ****% up time (not
-----------------------------
including scheduled downtimes for maintenance, which currently take place Monday
mornings between 12 a.m. and 3 a.m. PST.
(c) Procedures for System Outages: CP posts a message in the event of a
-----------------------------
system outage whenever possible.
(d) Definition: As used in this Exhibit, "system outage" means any
----------
unplanned interruption in the provision of CP Services during which NSI's
Customers are unable to access or use the CP Services and which is caused by a
problem in the CP System and confirmed by CP. "System outage" does not include
any interruptions in the CP Services caused by act, omission or condition beyond
CP's reasonable control, such as acts of nature or any third party.
2. Monitoring/Reporting:
(a) CP will prepare a monthly Stewardship report that will track the
performance metrics stated in Section 1 of this Exhibit. In addition, the
parties will meet on a regular basis to discuss the Stewardship report and its
associated performance metrics.
(b) CP will provide NSI with monthly reports which document all CP System
outages or enhancements made during such month. Each report shall have capacity
planning information outlined [above] and include, at a minimum, the following
additional information:
Summary:
. CP System uptime
. Number of new NSI Customer mailboxes
. Number of deleted NSI Customer mailboxes
. Total number of NSI Customer mailboxes
. Mean storage used for mailboxes
. Number of CP System outages
. CP System total downtime and average daily and monthly downtimes
* CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL PORTIONS HAVE
BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
Specific Outage Report:
. Time of outage
. Length of outage
. Affected areas
. Reason for outage
. Long term remedy
. Person notified
Enhancement:
. Reason for change
. Areas affected
This information will be emailed to NSI by the third working day of the
month following the reported month.
3. Escalation Procedures
(a) Notify NSI via the following email address in the event of a system
outage. CP will send an email notice whenever possible. In the event that
email is not working or CP is otherwise unable to send an email message, then CP
will notify NSI by telephone within 30 minutes of the time that CP first learns
of the outage.
. NSI: Advise email address here
(b) Status information, if known by CP, to include:
. reason for the outage; and
. estimated time for service restoration.
(c) If NSI experiences a system outage and has not been notified by CP,
NSI will contact the Technical Support staff at CP by pager at 415/764-6203
and will be given the information listed in 3.b).
(d) CP will periodically notify NSI with updated status for the
duration of the outage.
(e) CP will provide a post-incident summary that will include:
. cause of the problem;
. method used to correct the problem; and
. measures CP will take to prevent similar occurrences in the future.
(f) CP shall furnish necessary staff to provide the E-Mail Hosting
Services. CP shall use commercially reasonable efforts to provide NSI with
access to an engineering staff
member 24 hours a day 365 days a year. Upon notification of a problem with the
CP System or the E-mail Hosting Services, CP shall evaluate and verify the
problem and provide NSI with a mutually agreeable time estimate for resolution
of the problem. CP shall promptly commence remedial activities and use
commercially reasonable efforts to complete the system outage resolution within
the mutually agreed upon time estimate. In the event CP is unable to complete a
system outage resolution within the mutually agreed upon time estimate, NSI, in
its sole discretion, will deduct an amount of 1/30th of the basic monthly
hosting fee otherwise payable to CP under this Agreement for each day that a
problem with the CP System or the E-mail Hosting Services remains unresolved
after the mutually agreed upon time estimate. Within 30 days of the Effective
Date, CP shall provide NSI with an escalation plan for system outage
notification. CP shall notify NSI immediately of any change to such plan.
4. Business Resumption
(a) In the event of a system outage, CP will switch processing from the
primary server to a hot backup server in accordance with Exhibit A, Section B.
(b) NSI agrees to notify CP no less than 40 hours in advance of any
modifications and/or network configuration changes (including system
maintenance) to, as well as upgrades and removal of devices that impact the
production and network connectivity from, NSI's system through which the CP
Services are provided if they are outside of the scheduled Monday maintenance
windows. If any such change will or could, in either party's opinion, result
in incompatibility between the parties' respective systems or interruptions in
the CP Services, then the parties shall work together to resolve any such
issue before NSI makes the change.
