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Exhibit 10.9
MSA Addendum (The Princeton Review)
This Addendum to the Master Services Agreement shall be incorporated by
reference into said MSA, and shall control all conflicting terms in the Master
Services Agreement and in any Service Order(s) executed thereunder.
DELETE PARAGRAPH 1. OF THE MSA ENTITLED "NATURE OF AGREEMENT" IN ITS ENTIRETY
AND REPLACE WITH THE FOLLOWING:
"This is an Agreement for the provision by Frontier GlobalCenter of Internet
connectivity services (the "Bandwidth"), the availability of space (the "Space")
to store and operate Client-owned equipment (the "Client-Hardware") including
Frontier GlobalCenter's hardware (the "Hardware") necessary therefor, and the
licensing of software to provide such Services (the "Software"), together
comprising an Internet connectivity and collocation package to be provided by
Frontier GlobalCenter under this Agreement (together, the "Services").
DELETE PARAGRAPH 2.1 OF THE MSA ENTITLED "ORDERS" IN ITS ENTIRETY AND REPLACE
WITH THE FOLLOWING:
"ORDERS. Client may issue one or more service orders describing the Bandwidth,
Space, Client-Hardware, and Software that Client desires ("Service Order"). Each
Service Order will set forth the prices, initial term of Services and other
information in the form set forth in the Service Order Form. No Service Order
shall be effective until accepted by Frontier GlobalCenter, provided that
Frontier GlobalCenter must promptly accept any Service Order within the terms of
this Agreement provided Client is not then in material default hereunder. All
Service Orders will be subject to the terms and conditions of this Agreement,
and the terms of this Agreement shall supersede any terms and conditions which
may appear on Client's order form, or purchase order."
DELETE PARAGRAPH 2.2 OF THE MSA ENTITLED "CANCELLATION" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
"CANCELLATION. In the event that Client cancels or terminates a Service Order at
any time for any reason whatsoever other than expiration of a Service Order or a
Service Interruption (as defined below) Client agrees to pay GlobalCenter as a
cancellation fee all Monthly Recurring Charges specified in the Service Order
for the balance of the term therefor, or 30 days, whichever is less, which shall
become due and owing as of the effective date of cancellation or termination."
APPEND THE FOLLOWING EXTRACT TO PARAGRAPH 2.3 OF THE MSA ENTITLED "IP
ADDRESSES":
"For the purposes of IP Address renumbering, "reasonable notice" shall be at
least 5 business days."
INSERT THE FOLLOWING PARAGRAPH 2.4 IN THE MSA:
"STAFFING. Frontier Global Center guarantees that it shall, at all times,
maintain commercially acceptable staffing levels of Network Engineering,
Technical Account Manager, Operators and Security Personnel."
DELETE PARAGRAPH 3.1 OF THE MSA ENTITLED "LICENSE" IN ITS ENTIRETY AND REPLACE
WITH THE FOLLOWING:
"LICENSE. During the term of the applicable Service Order, Frontier GlobalCenter
grants Client a non-transferable, nonexclusive license to use the Software in
object code form only, solely on the Client-Hardware in conjunction with the
Services."
INSERT THE FOLLOWING PARAGRAPH 3.5 IN THE MSA:
"SOFTWARE LICENSE AND RIGHTS: Frontier Global Center shall ensure that adequate
licenses of the following software packages are made available to Client at no
additional charge from Frontier Global Center:
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Stormwatch (monitoring), Express Control (traffic & trouble tickets), Remedy,
Netcool, HP Openview, Cisco Works and Cascade View. Frontier GlobalCenter
indemnifies and holds harmless Client for all liabilities and costs including
reasonable attorneys' fees arising out of any direct or indirect license
violations that may result from software that Frontier GlobalCenter installs, or
requires Client to install, on Client systems."
REMOVE PARAGRAPH 4 OF THE MSA ENTITLED "HARDWARE TERMS AND CONDITIONS", IN ITS
ENTIRETY.
APPEND THE FOLLOWING EXTRACT TO PARAGRAPH 5.1 OF THE MSA ENTITLED "LICENSE TO
OCCUPY":
"Frontier GlobalCenter represents that such landlord has not in the past
objected to similar arrangements. In the event that the Client Space, MDC Floor,
or entire Frontier GlobalCenter MDC is rendered unfit (as mutually determined by
both Frontier GlobalCenter and Client) for use by Client, Frontier GlobalCenter
will use all commercially reasonable efforts to move customer to another Space,
Floor or data center at no charge to the customer."
DELETE PARAGRAPH 5.2 OF THE MSA ENTITLED "MATERIAL AND CHANGES" IN ITS ENTIRETY
AND REPLACE WITH THE FOLLOWING:
"MATERIAL AND CHANGES. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Hardware, without obtaining
Frontier GlobalCenter's prior written approval (not to be unreasonably denied or
delayed) for Client to have the work performed. Alternatively, Client may
request Frontier GlobalCenter to perform the work. Frontier GlobalCenter
reserves the right to perform and manage any construction or alterations within
the Space areas at rates to be negotiated between the Parties hereto. Client
agrees not to erect any signs or devices to the exterior portion of the Space
without submitting the request to Frontier GlobalCenter and obtaining Frontier
GlobalCenter's advance written approval."
DELETE PARAGRAPH 5.3 OF THE MSA ENTITLED "DAMAGE" IN ITS ENTIRETY AND REPLACE
WITH THE FOLLOWING: "Client agrees to reimburse Frontier GlobalCenter for all
reasonable repair or restoration costs associated with damage, destruction, or
theft caused by the gross negligence or willful misconduct Client's personnel,
Client's agents, Client's suppliers, Client's contractors, or Client's visitors
during the term or as a consequence of Client's removal of the Client-Hardware
or property installed in the Space.
Frontier GlobalCenter agrees to reimburse Client for all reasonable repair or
restoration costs associated with damage, destruction, or theft to Client's
material assets located in the Space, caused by the gross negligence or willful
misconduct of Frontier GlobalCenter's personnel, agents, suppliers, contractors,
or visitors."
APPEND THE FOLLOWING EXTRACT TO SECTION #5.4 OF THE MSA ENTITLED "INSURANCE":
"Frontier GlobalCenter agrees to maintain, at Frontier GlobalCenter's expense,
(i) Comprehensive General Liability Insurance in an amount not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury or property
damage, (ii) Employer's Liability in an amount not less than Five Hundred
Thousand Dollars ($500,000) per occurrence, and (iii) Worker's Compensation in
an amount not less than that prescribed by statutory limits. Prior to taking
occupancy of the Space, Frontier GlobalCenter shall furnish Client with
certificates of insurance which evidence the minimum levels of insurance set
forth herein."
REMOVE PARAGRAPH #5.5 OF THE MSA ENTITLED "REGULATIONS" IN ITS ENTIRETY
REMOVE PARAGRAPH #5.6 OF THE MSA ENTITLED "DISCLAIMER" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
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Other than the specific representations and warranties made herein in this MSA,
Frontier GlobalCenter does not make any representation or warranty whatsoever as
to the fitness of the Space for Client's use.
ADD THE FOLLOWING PARAGRAPH 5.7 TO THE MSA:
"RIGHT OF FIRST REFUSAL: For a period of 90 calendar days from time of execution
of Initial Service Order, Frontier GlobalCenter will reserve one (1) cage (The
Cage) adjacent to Client's cage(s) exclusively for the Client. This reservation
period may be extended by the Client for an extra 30 days for a one-time fee of
$5000. A Service Order for this extension period must be executed by the end of
the initial 90 calendar day period. After the expiration of the reservation or
extended reservation period (90th or 120th calendar day), Frontier Global Center
shall give the Client the Right to First Refusal on that Cage during the term of
this Agreement. If Frontier Global Center wishes to offer the Cage to another
client, Frontier GlobalCenter must notify the Client in writing of its
intentions. After receiving such notification, if the Client wishes to exercise
this Right to First Refusal and decides to rent the cage, Frontier GlobalCenter
shall give the Client 5 business days to execute a Service Order for the Cage.
If Client does not execute a Service Order within the five (5) business days
specified, Frontier GlobalCenter may offer the adjacent cage to another client.
INSERT THE FOLLOWING PARAGRAPH 5.8 TO THE MSA:
"DELIVERIES. Frontier GlobalCenter shall, at no additional charge, receive
deliveries of Client's equipment to be installed in the Space. Client shall be
responsible for building off-hours elevator fees, if applicable, incurred during
such deliveries. Frontier GlobalCenter shall also, at no additional charge,
provide suitable storage for delivered equipment for up to 10 business days.
INSERT THE FOLLOWING PARAGRAPH 5.9 TO THE MSA:
"STAGING AREA. Frontier GlobalCenter shall, at no additional charge, provide
Client with reasonable space to assemble and test equipment prior to installing
it in the Space."
REMOVE SECTION 6 ENTITLED "SERVICE INTERRUPTIONS" IN ITS ENTIRETY AND REPLACE
WITH THE FOLLOWING:
"SERVICE INTERRUPTIONS
6.1. 99% NETWORK UPTIME GUARANTEE. Frontier GlobalCenter agrees that the Network
will experience 99.0% Network Uptime (as defined below) measured on a per-hour
basis. In the event of Network Downtime (as defined below), the monthly fee
payable for the Bandwidth, defined in the Service Orders, shall be reduced as
follows:
6.1.1. if the total Network Downtime over a single 24 hour period in the
calendar month is equal to or more than three and six tenths (3.6) hours and
less than seven and two tenths (7.2) hours, or if the total Network Downtime in
the calendar month is equal to or more than seven and two tenths (7.2) hours and
less than fourteen and four tenths (14.4) hours, the monthly Bandwidth fee for
that month shall be reduced by one-third (33.3%); and
6.1.2. if the total Network Downtime over a single 24 hour period in the
calendar month is equal to or more than seven and two tenths (7.2) hours and
less than fourteen and four tenths (14.4) hours, or if the total Network
Downtime in the calendar month is equal to or more than fourteen and four tenths
(14.4) hours and less than twenty-one and six-tenths (21.6) hours, the monthly
Bandwidth fee for that month shall be reduced by two-thirds (66.6%); and
6.1.3. if the total Network Downtime over a single 24 hour period in the
calendar month is equal to or more than fourteen and four tenths (14.4) hours,
or if the total Network Downtime in the calendar month is
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equal to or more than twenty-one and six-tenths (21.6) hours, the monthly
Bandwidth fee for that month shall be reduced by three-quarters (75%).
6.2 NETWORK UPTIME AND NETWORK DOWNTIME DEFINED. For the purposes of Section
6.1, Network Uptime is defined as the availability of core network services to
the Client's hardware, as measured by Express Control statistics (as described
in the Service Specification section) supplied by the Frontier GlobalCenter
Network Operations Center (NOC) to the Client. The Client reserves the right to
substitute a mutually accepted tool for measuring the availability of core
network services at a later date.
Any interruption in the availability of the Client's port(s) on Frontier Global
Center's switch(es), the Frontier Global Center switch(es) that the Client's
port resides on or the Network that connects the Frontier GlobalCenter switch
fabric with the Internet or any other failure to supply the Bandwidth to enable
the Client-Hardware to connect to the Internet is considered Network Downtime.
Failure of the Network to operate within normal operating parameters, such as
instances of packet loss over 40%, or transmission latency in excess of one
hundred and twenty (120) milliseconds, across Frontier GlobalCenter's national
IP backbone is also considered Network Downtime.
For purposes of this Section, the Internet is deemed to consist of services that
commence where Frontier GlobalCenter transmits a Client's content to Frontier
GlobalCenter's carrier(s) at the Frontier GlobalCenter border router port(s).
Such carriers provide Frontier GlobalCenter with private and dedicated
bandwidth. Frontier GlobalCenter undertakes no obligation for the circuit or
link between Frontier GlobalCenter's facilities and such carrier's services but
Frontier GlobalCenter hereby assigns to Client its guarantee, if any, from any
such carrier on which Client's content is transmitted.
6.3 MAINTENANCE WINDOWS. Frontier GlobalCenter reserves three (3) regularly
scheduled maintenance windows per week, of four hour duration, in order to
maintain and upgrade the Frontier Global Center IP Backbone infrastructure.
Outages or performance degradation during scheduled maintenance windows as a
result of router, switch or server maintenance, are not considered Downtime for
purposes of this section. Frontier GlobalCenter shall make all commercially
reasonable efforts to provide the Client with prior notification of all
scheduled and emergency maintenance procedures. Prior to taking occupancy of the
Space, as well as twenty-four (24) hours prior to any change in maintenance
schedule, Frontier GlobalCenter shall furnish Client with a written schedule of
maintenance windows.
6.4. 100% FACILITY UPTIME GUARANTEE. In the event of Facility Downtime (as
defined below), the Monthly Fee payable for the Co-location Services as set
forth in the applicable Service Order shall be reduced as follows:
6.4.1. If the total Facility Downtime in the calendar month is more than zero
(0) minutes and less than, or equal to four minutes and thirty-two seconds
(4.32) the monthly Space fee for that month shall be reduced by one-third
(33.3%);
6.4.2. If the total Facility Downtime in the calendar month is more than four
minutes and thirty-two seconds (4.32) the monthly Space fee for that month shall
be reduced by two-thirds (66.6%).
6.4.3. FACILITY DOWNTIME DEFINED. For the purposes of Section 6.4, Facility
Downtime shall mean any service interruption, only if such interruption is
either due to a facility power failure or environmental control failure.
6.5 INVESTIGATION OF SERVICE INTERRUPTIONS. At Client's request, Frontier
GlobalCenter will investigate any report of Downtime, and attempt to remedy any
Downtime expeditiously. If Frontier GlobalCenter
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reasonably determines that all facilities, systems and equipment furnished by
Frontier GlobalCenter are functioning properly and that Downtime arose from some
other cause, and so notifies Client, Frontier GlobalCenter shall continue to
investigate the Downtime cause at the client's request and expense for labor and
materials cost for services actually performed at the usual and customary rates
for similar services provided by Frontier GlobalCenter to clients in the same
locality.
6.6 TERMINATION. Client may terminate a Service Order in the event of Downtime
of either twenty-four (24) hours of cumulative time during any continuous twelve
(12) month period, or any continuous Downtime of eight (8) hours or more.
6.7 SOLE REMEDY. The terms and conditions of this Section 6 shall be Client's
sole remedy and Frontier GlobalCenter's sole obligation for any Downtime."
REMOVE PARAGRAPH 7. OF THE MSA ENTITLED "USER CONTENT" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
"USER CONTENT. Client is solely responsible for the content of any postings,
data, or transmissions using the Services ("Content"), or any other use of the
Services by Client or by any person or entity Client permits to access the
Services (a "User"). Client represents and warrants that it and any User will
not use the services for unlawful purposes (including without limitation
infringement of copyright or trademark, misappropriation of trade secrets, wire
fraud, invasion of privacy, pornography, obscenity and libel), or to interfere
with or disrupt other network users, network services or network equipment.
Disruptions include without limitation distribution of unsolicited advertising
or chain letters, repeated harassment of other network users, wrongly
impersonating another such user, falsifying one's network identity for improper
or illegal purposes, 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. If Frontier GlobalCenter has
reasonable grounds to believe that Client or a User is utilizing the Services
for any such illegal or disruptive purpose, Frontier GlobalCenter may suspend
Services immediately upon notice to Client until Client shows that no illegal or
disruptive purpose is being effected. Client shall defend, indemnify, hold
harmless Frontier GlobalCenter from and against all liabilities and costs
(including reasonable attorney's fees) arising from any and all claims by any
person arising out of Client's use of the Services, including without limitation
any content, except to the extent based on Frontier GlobalCenter's negligence,
willful misconduct, or breach of this agreement. Frontier GlobalCenter shall not
install any content on the Client-Hardware."
REMOVE PARAGRAPH 8.1 OF THE MSA ENTITLED "PAYMENT TERMS" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
"PAYMENT TERMS. Client shall pay the fees set forth in the Services Order Form
according to the terms set forth therein. Client agrees to pay an annual late
charge of two percent (2%) above the prime rate, per year, as reported by the
Wall Street Journal at the time of assessment or the maximum lawful rate,
whichever is less, for all undisputed amounts not paid within thirty (30) days
of receipt of invoice."
REMOVE PARAGRAPH 8.2 OF THE MSA ENTITLED "LATE PAYMENTS" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
"LATE PAYMENTS. In the event of non-payment by Client of sums over-due hereunder
for more than sixty (60) days, Frontier GlobalCenter may upon written notice to
client, request Client to remove equipment from Frontier GlobalCenter's premises
within ten (10) business days. If Client fails to either (i) pay any undisputed
charge and to pay into escrow any disputed charge or (ii) so remove, Frontier
GlobalCenter may, at Frontier Global Center's discretion, deliver the equipment
to Client at the latter's address for notices at Client's expense for shipment
and insurance, and Client shall be obligated to accept such delivery."
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REMOVE PARAGRAPH 8.3 OF THE MSA ENTITLED "PRICE INCREASES" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING:
"PRICE INCREASES. Frontier GlobalCenter shall not increase the prices for
services during the initial term of any Service Order, as defined therein. After
the initial term of the Service Order, Client shall be given the opportunity to
either sign another Service Order for ongoing Services for a fixed price to be
negotiated or may continue its existing Service Order on a month to month basis.
If, after the initial Service Order term, the Client chooses to continue its
existing Service Order on a month to month basis, Frontier GlobalCenter reserves
the right to increase its price for Services if: (i) it provides Client with
sixty (60) days written notice of such increase; and (ii) such increase is due
to and deemed commercially reasonable in light of unforeseeable increases in
Frontier GlobalCenter's cost of providing the Services to Client including, but
not limited to, changes to Federal, State, or Local Government tariffs, a
significant increase in inflation, or changes in the Internet regulatory and
infrastructure environment, provided, however, that Frontier GlobalCenter shall
limit cumulative annual price increases to 5%."
DELETE PARAGRAPH 9.2 OF THE MSA ENTITLED "CLIENT DUTIES" AND REPLACE IT WITH THE
FOLLOWING:
"CLIENT DUTIES. Client shall make every reasonable effort to document and
promptly report all errors or malfunctions of the Hardware or Software to
Frontier GlobalCenter. Client shall take all steps necessary to carry out
procedures for the rectification of errors or malfunctions within a reasonable
time after such procedures have been received from Frontier GlobalCenter."
REMOVE PARAGRAPH 10.2 OF THE MSA ENTITLED "TERMINATION UPON DEFAULT" IN ITS
ENTIRETY AND REPLACE WITH THE FOLLOWING:
"TERMINATION UPON DEFAULT. Either party may terminate this Agreement in the
event that the other party materially defaults in performing any obligation
under this Agreement and such default continues unremedied for a period of
thirty (30) days following written notice of default specifying the default in
reasonable detail. In the event this Agreement is terminated due to Frontier
GlobalCenter's breach, Frontier GlobalCenter shall refund to Client any Services
fees on a straight line prorated basis. If any such default other than payment
of money cannot be remedied in thirty (30) days, then the defaulting party shall
have a reasonable time to remedy if it commences and diligently pursues a
remedy."
REMOVE PARAGRAPH 10.4 OF THE MSA ENTITLED "EFFECT OF TERMINATION" IN ITS
ENTIRETY AND REPLACE WITH THE FOLLOWING:
"EFFECT OF TERMINATION. The provisions of Sections 1, 2.3, 3.2, 3.3, 7, 10.4,
11, 12, 13, and 14 shall survive termination of this Agreement. Client's
material assets located in the Space shall remain the property of the Client.
Client shall under no circumstances be denied reasonable access to the Facility
for the purposes of removing Client's material assets. All other rights and
obligations of the parties shall cease upon termination of this Agreement. The
term of any license granted hereunder shall expire upon expiration or
termination of this Agreement."
REMOVE PARAGRAPH 12. OF THE MSA ENTITLED "LIMITATION OF LIABILITY" IN ITS
ENTIRETY AND REPLACE WITH THE FOLLOWING:
"LIMITATION OF LIABILITY. FRONTIER GLOBALCENTER'S LIABILITY FOR ALL CLAIMS
ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY
CLIENT TO FRONTIER GLOBALCENTER UNDER THIS AGREEMENT AND THE REPLACEMENT OR
REPAIR COST FOR ANY OR ALL OF CLIENT'S MATERIAL ASSETS LOCATED IN THE SPACE, IN
THE EVENT OF LOSS, DAMAGE, OR THEFT TO CLIENTS' MATERIAL ASSETS CAUSED BY
FRONTIER GLOBAL CENTER'S PERSONNEL, AGENTS, SUPPLIERS, CONTRACTORS OR VISITORS.
IN NO EVENT SHALL FRONTIER GLOBALCENTER BE LIABLE FOR ANY LOSS OF DATA, LOSS OF
PROFITS, COSTS OF COVER OR OTHER SPECIAL, INCIDENTAL,
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CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT
OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF
LIABILITY. THIS LIMITATION WILL APPLY EVEN IF FRONTIER GLOBALCENTER HAS BEEN
ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES."
APPEND THE FOLLOWING EXTRACT TO PARAGRAPH 13. OF THE MSA ENTITLED "DISCLAIMER OF
WARRANTIES":
"EXCEPT AS EXPRESSLY SET FORTH HEREIN."
REMOVE PARAGRAPH 14.2 OF THE MSA ENTITLED "NOTICES" IN ITS ENTIRETY AND REPLACE
WITH THE FOLLOWING: "NOTICES. Any notice required or permitted hereunder shall
be in writing and shall be given by registered or certified mail addressed to
the addresses first written above. Such notice shall be deemed to be given upon
the earlier of actual receipt or non-acceptance of the notice, properly
addressed and with postage prepaid. Either party may change its address for
notice by means of notice to the other party given in accordance with this
Section."
REMOVE PARAGRAPH 14.4 OF THE MSA ENTITLED "GOVERNING LAW" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING: "GOVERNING LAW. Before either party may commence
litigation, all disputes relating to this agreement shall be submitted for
non-binding arbitration in New York City before the American Arbitration
Association in accordance with the rules of the AAA. In the event of litigation
between Frontier GlobalCenter and Client, this Agreement shall be interpreted
according to the laws of the State of California without regard to or
application of choice-of-law rules or principles. In the event of litigation the
parties hereby agree to the exclusive jurisdiction of the state and federal
courts located in New York, NY.
REMOVE PARAGRAPH 14.7 OF THE MSA ENTITLED "NON-SOLICITATION" IN ITS ENTIRETY AND
REPLACE WITH THE FOLLOWING: "NON-SOLICITATION. During the term of this agreement
and for a period of one (1) year thereafter, Client shall not solicit, nor
attempt to solicit, the services of any employee or subcontractor of Frontier
GlobalCenter without the prior written consent of Frontier GlobalCenter.
Frontier GlobalCenter also agrees that during the term of this agreement and for
a period of one (1) year thereafter, Frontier GlobalCenter shall not solicit,
nor attempt to solicit, the services of any employee or subcontractor of Client
without prior written consent."
FRONTIER GLOBALCENTER CLIENT
BY: /s/ XXXX XXXXXXXXX BY: /s/ XXXX XXXXXXX
TITLE: VP SALES TITLE: PRESIDENT
DATE: 6/18/99 DATE: 6/16/99
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