EXHIBIT 10.12
Confidential treatment requested The portions for which
under the Freedom of Information confidentiality have been sought
Act and other indicated statutes are identified by an asterisk(*).
by ICon CMT Corp.
Confidential
MFS Datanet/ICon Net
Master Service Agreement
Addendum #1
This Addendum #1 is made between MFS Datanet, Inc., a Delaware corporation with
a principle place of business at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxxxxxxxxx 00000 ("MFSDN") and ICon International, Inc., Delaware corporation
with a principle place of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Customer"), hereinafter collectively referred to as the "Parties."
Recitals
WHEREAS, the Parties have entered into an agreement relative to the provision of
data communication services by MFSDN to Customer known as the Master Service
Agreement (the "Agreement"); and,
WHEREAS, MFSDN has agreed to provide Customer with certain services subject to
the special terms and conditions set forth in this Addendum #1 (which, together
with the terms of the Master Service Agreement, shall be hereinafter referred to
as "this Agreement"),
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
Parties hereby agrees as follows:
1. Agreement Term
This Agreement shall commence upon execution by both Parties and continue in
effect for a period of three (3) years. Notwithstanding the foregoing, the terms
of this Agreement shall remain in effect as long as services are provided
hereunder. The initial term of service for any service ordered hereunder will be
as set forth in a Service Order placed pursuant to this Agreement.
2. Service Description
MFSDN agrees to provide Customer with ATM services at speeds of up to 45 Mbps
(megabits per second) in domestic US cities in which MFSDN has an established
network node and operates a fiber optic network ("MFS Cities").
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3. Pricing and Billing
Service pricing is on a per connection basis and has two components; a fixed
connection charge of * per month (the "Minimum Monthly Charge") plus a usage
charge based on actual traffic volumes, capped at a fixed monthly fee (the
"Monthly Usage Charge").
Each month, a Monthly Usage Charge will be calculated for each city using both
variable rates based on * and * The Monthly Usage Charge invoiced to Customer
for any month will be capped at a fixed monthly charge (the "Usage Cap") * .
Refer to * Table 1 below for variable usage rates. The Usage Cap for each * is
shown in Table 2, Fixed Monthly Usage Caps.
Variable Charges - To calculate the variable usage charge * and then multiplied
by the appropriate * charge. Charges for the * are then * to determine the total
variable usage charge applicable to that month. A megabyte consists of * and
billing is on a transmit basis.
Usage Cap - To calculate an aggregate sustained usage for any * , the total *
will be divided by * . (If a billing month consists of thirty days, each with
twenty-four hours; the * would be 2,592,000 seconds: 30 days in the month x
86,400 seconds/day.) The result of this * is the * . The range containing this
number will be found in * of Table 2 and a resulting Usage Cap value determined.
The Monthly Usage Charge actually billed to Customer will be the lesser of the
variable usage charge or the applicable Usage Cap.
Table 1
* Chart - * Between *
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Lower Bound Upper Bound Rate
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*
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Table 2
Fixed Monthly Usage Caps
*
Service provides for burst capability on the access circuit of * cells. VCI will
be set to a * Mbps Sustained. *
The Parties agree that each will devote the technical resources necessary, and
will work together in good faith, to develop a resolution to any technical
challenge encountered in making the Customer's application work on the MFSDN
network. It is, however, understood that Agreement rates are conditioned on
certain cost assumptions and if the proposed solution to such technical
challenge would require additional investment in equipment or network
infrastructure resource beyond that currently contemplated, the Parties must
mutually agree as to the course of action. Any such technical challenge which
cannot be resolved to Customer's satisfaction shall be considered grounds for
termination by Customer in accordance with paragraph 4 below.
Usage data will be collected for each Customer connection on a continuous basis
and in approximately fifteen minute intervals. MFSDN will provide Customer with
monthly reports which support usage billing under this Agreement.
The on-net installation charge for ATM service is * per port per city. Off-net
installation is subject to quote at the time the order is placed. Unless
otherwise agreed to
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by the parties and specified in a Service Order, the installation charge shall
be the only Non-Recurring charge applicable to this service.
4. Termination
Customer may, with written notice to MFSDN, terminate this Agreement if (a)
Customer is unable, with reasonable effort and upon reasonable terms, to enter
into peering agreements with all other Internet access provides; or, (b)
Customer is unable, with reasonable effort and upon reasonable terms, to route
traffic to any Internet user; or (c) MFSDN fails to meet the performance
standards set forth in Paragraph 9 of the Agreement. In the event of termination
for one of the foregoing reasons or the reason set forth in section 3 above, it
is agreed that MFSDN service charges (excluding third party charges) will cease
effective five days after the date of Customer's notification or the date
Customer discontinues use of the service, whichever is later. In addition,
either Party may, in its sole business judgment and with thirty (30) days prior
written notice, terminate this Agreement at the expiration of the first year of
the Term of this Agreement.
In the event Customer requests termination of this Agreement under this
provision or the terms of Paragraph 2 or Paragraph 9 of this Agreement,
Customer's sole liability shall be to pay to MFSDN all Non-Recurring charges
specified in a Service Order placed hereunder and reasonably expended by MFSDN
to establish service to the Customer; plus any third party disconnection, early
cancellation or termination charges reasonably incurred by MFSDN as a result of
Customer's request to terminate. Termination for any other reason shall be
subject to the terms of Paragraph 12 of this Agreement.
5. Amendments to Master Service Agreement Terms and Conditions
Paragraph 2 of the Agreement is hereby deleted in its entirety and replaced with
the following:
"The Term of this Agreement shall be as set forth in the Service Order and shall
extend thereafter until terminated by either Party upon no less than ninety (90)
days' prior written notice. However, MFSDN may terminate this Agreement or
suspend service hereunder at any time upon: (a) any failure of Customer to pay
any undisputed amounts as provided in this Agreement; (b) any breach by Customer
of any material provision of this Agreement continuing for thirty (30) days
after receipt of notice thereof; (c) any insolvency, bankruptcy, assignment for
the benefit of creditors, appointment of a trustee or receiver or similar event
with respect to Customer; or (d) any governmental prohibition or required
alteration of services to be provided hereunder or any violation of an
applicable law, rule or regulation by Customer. Customer may terminate this
Agreement or suspend service hereunder at any time upon: (i) any breach by MFSDN
of any material provision of this Agreement continuing for thirty (30) days
after receipt of notice thereof; (ii) any insolvency, bankruptcy, assignment for
the benefit of creditors, appointment of a trustee or receiver or similar event
with respect to MFSDN; or (iii) any governmental prohibition or required
alteration of services to be provided hereunder or
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any violation of an applicable law, rule or regulation by MFSDN. Any termination
shall not relieve Customer of its obligation to pay any charges incurred
hereunder prior to such termination or relieve MFSDN of its obligations accrued
up to the time of termination. The Parties' rights and obligations which by
their nature would extend beyond the termination, cancellation or expiration of
this Agreement shall survive such termination, cancellation or expiration.
Paragraph 4 of the Agreement is amended by the addition of the following clause
at the end of the current paragraph: "provided, however, that MFSDN shall
provide Customer with written notice of delinquent payment and allow Customer
ten (10) days from the date of such notice to bring its account current before
the imposition of interest charges or termination of service."
Paragraph 6 of the Agreement is amended by inserting the words ", as soon as
possible" at the end of the first sentence and adding the following additional
sentence to the end of the current clause: "These labor rates apply to a service
call for a problem that is not caused by a failure of MFSDN provided services.
They do not apply to maintenance for the service being provided to Customer
under this Agreement which is included in the monthly rate."
Paragraph 9 of the Agreement is amended by the deletion of subsection (iii) in
the seventh line of the first paragraph.
Paragraph 10 of the Agreement is amended by deleting the current clause in its
entirety and replacing it with the following:
"MFSDN's and Customer's entire liability for any claim, loss, damage or expense
from any cause whatsoever shall in no event exceed sums actually paid to or
payable to MFSDN by Customer for the specific service giving rise to the claim.
Notwithstanding the foregoing and excepting liquidated damages paid by Customer
for early termination as set forth in Section 4 of Addendum Number (1) or
Paragraph 12 of the Master Service Agreement, neither MFSDN nor Customer shall
be liable for any indirect, incidental, consequential, punitive or special
damages. No action or proceeding against either Party shall be commenced more
than one (1) year after service is rendered."
Paragraph 12 of the Agreement is amended by inserting the words "third party"
after the word "any" in subsection 2) of this paragraph.
Paragraph 15 of the Agreement is amended by replacing the word "MFSDN" in the
third line with the words "either Party", the word "MFSDN" in the fourth, fifth,
and sixth lines with the words "that Party." In addition, the following
additional paragraph is added to this clause:
"If, however, any assignment permitted under the proceeding sentence should
cause the non-assigning Party reasonable concern that the assignee possesses
insufficient financial
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resources to perform all the obligations hereunder, the assignee shall be
required to deposit with the non-assigning Party an irrevocable unconditional
letter of credit, or other acceptable form of security, in an amount sufficient
to insure the obligations of the assignee."
Paragraph 19 of the Agreement is amended by inserting the words, "provided that
such delay or failure does not extend for more than fifteen (15) days" at the
end of the first sentence and by the insertion of the words ", up to fifteen
(15) days" at the end of the second sentence.
Paragraph 21 of the Agreement is amended by replacing the words "State of
California" with "State of New York."
This Agreement is further amended by adding the following additional provision
as a new Paragraph 23:
"The Usage Cap charges set forth herein represent a significant discount for
MFSDN's standard fixed price charge for high speed ATM services. MFSDN agrees
that if, during the term of this Agreement, it should announce a reduction in
its published rates for these services for a term of service equal to or less
than the remaining Term of this Agreement, it shall offer those rates to
Customer on a going forward basis."
The Agreement is modified, altered, and changed only as set forth in this
Addendum #1. In the event of any conflict, inconsistency, or incongruity between
the provisions of this Addendum Number 1 and any provisions of the Master
Service Agreement or Service Order for the services described herein, the
provisions of this Addendum shall in all respects govern and control.
MFSDN: Customer:
By: /s/ By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President Title: President
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Date: 6/29/95 Date: June 21, 1995
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