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[Xxx.xxx Letterhead]
Exhibit 10.7
October 18, 1999
XXX Xxxxxxxxxxx
Hopkinton, MA 01748
Attention: Xx. Xxxxxxx Xxxxx, Director Internet Solutions Group
Dear Xx. Xxxxx:
This letter sets forth the terms and conditions that XXX.XXX
Corporation ("XXX.XXX") has recently discussed with XXX Xxxxxxxxxxx ("EMC") and
will serve as the basis for a more detailed definitive internet services
agreement (the "Definitive Agreement") to be negotiated in good faith by both
parties. This letter is intended to be a preliminary and non-binding letter of
intent and (except solely with respect EMC's commitment to offer XXX.XXX the
pricing set forth in paragraph 3 and the parties' reimbursement and purchase and
obligations under paragraph6 below) neither party shall have any obligation to
the other until a Definitive Agreement is executed by both parties.
1. Introduction. EMC offers Internet services relating to, among other
things, development, maintenance and hosting of Internet sites, including those
on the World Wide Web portion of the Internet. XXX.XXX proposes to (a) operate a
business consisting of a network of banners owned by XXX.XXX and operated on
third party Web Sites , (b) operate various Web sites and (c) from time to time
to develop, own and operate other Web sites or Internet properties
(collectively, "XXX.XXX Internet Properties"). XXX.XXX desires to engage EMC to
provide services with respect to the XXX.XXX Internet Properties in accordance
with the proposal dated October 8, 1999 submitted by EMC to XXX.XXX and entitled
"EMC Internet Solutions Proposal No. EM991007-3194-2 Application Hosting For
XXX.XXX" (the "Services").
2. Description of Equipment and Services. The Definitive Agreement
shall provide, among other things, a thorough and detailed description of the
Services, that EMC shall provide the Services in a professional and xxxxxxx like
manner and that EMC shall indemnify XXX.XXX for the cost of identifying,
evaluating and migrating to another host, in the event EMC is unable to provide
the Services for any reason. The parties shall consider including language in
the Definitive Agreement which will give flexibility to both parties regarding
the reallocation, where possible, of hardware and software covered by the
Definitive Agreement to other projects between the parties which may arise in
the future.
3. Term The initial term of the Definitive Agreement shall be 12
months. The parties shall consider including language in the Definitive
Agreement which provides an option of extending the term of the Agreement in its
entirety or in part past 12 months.
4. Pricing. Provided that a Definitive Agreement is executed on or
before November 8, 1999, the Definitive Agreement shall provide the following
pricing for the Services:
Description Price
----------- -----
Service $[x] monthly
Plus Bandwidth $[x] per million users per month
CPU's $[x] per dual 400MHz cpu with 2GB RAM per month
[X]=Certain information on these pages has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portion.
000 Xxxxxxxx Xxxxxx - Xxxxx 000 - Xxxxxxxxx, Xxx Xxxx 00000 - 716/000-0000 - FAX
716/242/8677 - xxx.xxx.xxx
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[xxx.xxx Letterhead]
Ad serving (if implemented,
systems ready no sooner than
April 2000):
Minimal monthly price for
12 months (3 million or less
ads per day) $[X]/mos.
Charge per thousand ads (over
3 million/day) served of: $xxxx/thousand ads
[X]=Certain information on these pages has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect
to the omitted portion.
Under the Definitive Agreement, the first payment shall be due the last
day of the calendar month in which the Definitive Agreement is executed with
each subsequent monthly payment shall be due on the 30th day of each month
thereafter.
5. Other Terms, Etc.
In addition to the terms and conditions set forth herein, the
Definitive Agreement shall contain such other terms and conditions as are usual
and customary for the provision of services such as those contemplated
thereunder. Subject to the terms and conditions set forth herein, the Definitive
Agreement will be in form and content mutually satisfactory to the parties
6. Pre-Definitive Agreement Binding Terms & Conditions:
(a) Xxx.xxx is hereby authorizing EMC to procure the necessary
hardware, software and other resources required to provide the Services to
Xxx.xxx If, for any reason, a Definitive Agreement is not executed by the
parties, Xxx.xxx agrees to reimburse EMC for all expenses reasonably incurred
and documented by EMC (including, but not limited to, the procurement of
hardware, software, personnel or other such expenses necessary for the support
of Xxx.xxx as described above )up to a an aggregate maximum amount of $xxxxx
(the "Maximum Amount"). Until the Definitive Agreement is executed by XXX.Xxx
and EMC, XXX.XXX shall have no liability whatsoever in excess of the Maximum
Amount. XXX.XXX's reimbursement and purchase obligation under this Section 6(a)
shall automatically terminate with no action or notice on the part of either
party upon the execution and delivery of the Definitive Agreement by both
parties.
In consideration for the payments made by XXX.XXX toEMC pursuant to
this paragraph 6(a) , EMC shall assign all right, title and interest in and to
all hardware, and other equipment or property acquired by EMC and for
XXX.XXX(collectively, the "Transferred Assets"). EMC shall convey good and valid
title to all such Transferred Assets, free and clear of any claims, liens or
encumbrances of any kind (including any restrictions on use) In addition,
XXX.XXX shall pay a cancellation fee equal to the first monthly payment due
October 31, 1999 to EMC in the event that a Definitive Agreement is not entered
into by the parties.
(b) In consideration of XXX.XXX's undertaking in paragraph 6(a), EMC
agrees to use its diligent and reasonable best efforts to procure the software,
equipment and resources necessary to fully implement the Services as soon as is
reasonably practicable.
7. Schedule Milestones.
Order letter signed October 18, 1999
Agreement Signing November 18, 1999
Begin launch of xxx.xxx properties November 18, 1999
000 Xxxxxxxx Xxxxxx - Xxxxx 000 - Xxxxxxxxx, Xxx Xxxx 00000 - 716/000-0000 - FAX
716/242/8677 - xxx.xxx.xxx
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[Xxx.xxx Letterhead]
Equipment Available and on-line TBD
as evidenced by the on-line
functionality of all the equipment
defined in the Agreement
8. Public Announcements.
EMC shall not make any public announcement of the transactions
contemplated hereby unless approved in writing as to content and timing in
advance by XXX.XXX
9. Miscellaneous.
This Letter of Intent and the Definitive Agreement shall both be
governed by New York law without reference to conflicts principles. This Letter
of Intent and the Proposal represent the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior and/or
contemporaneous agreements and understandings. This Letter of Intent may only be
modified or amended by a written agreement of the authorized representatives of
the parties hereto.
If the foregoing terms are acceptable to EMC, please confirm your
acceptance by having an authorized representative sign in the space that has
been provided below and returning the enclosed copy of this letter.
Very truly yours,
XXX.XXX CORPORATION
By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxxx
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Title: Director, Marketing & Sales
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ACKNOWLEDGED AND AGREED TO
AS OF THE DATE OF THIS LETTER:
XXX Xxxxxxxxxxx
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Director, Internet Solutions Group
000 Xxxxxxxx Xxxxxx - Xxxxx 000 - Xxxxxxxxx, Xxx Xxxx 00000 - 716/000-0000 - FAX
716/242/8677 - xxx.xxx.xxx
