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EXHIBIT 10.15
CONCENTRIC HOST SERVER SOLUTIONS
SERVICE AGREEMENT
THIS CO-LOCATION SERVICE AGREEMENT ("Agreement") is made and entered into on
March 30, 1998 to be effective on April 15, 1998 ("Effective Date") by and
between CONCENTRIC NETWORK CORPORATION ("Concentric"), a Delaware corporation
with a principal place of business at 00000 X. Xxxxxx Xxx., Xxxxxxxxx, XX 00000,
and ELOQUENT INC. ("Customer") a Delaware corporation with a principal place of
business at 0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000.
WHEREAS, Concentric provides co-located server hosting services and desires to
provide Customer with network bandwidth and hosting of certain server hardware
to facilitate such service; and
WHEREAS, Customer desires to receive such services and hosting for its Internet
system and Customer's third party customers;
NOW THEREFORE, parties hereto agree as follows:
1.0 SERVICES.
1.1 Subject to the terms and conditions herein, and during the term and
subsequent renewal terms of this Agreement, Concentric will provide the services
described in Exhibit A ("Services") that have been selected by Customer as
designated in Exhibit B. Customer may change selection at any time provided that
Customer gives Concentric at least 30 days prior written notice of such change
in selection. Customer agrees to pay charges for and will be billed only for
selected services, Customer agrees that during the term of the Agreement, if
Customer selects a bandwidth option of equal to or greater than 4Mbps, Customer
shall not thereafter change its selection to select a bandwidth option lesser
than 4Mbps.
1.2 HOSTING SERVICES. During the term of this Agreement, Concentric agrees to
provide for the Customer's industry standard hardware and software
configurations ("System(s)"), at Concentric's facilities located at Santa Xxxxx
("Site"), full, unrestricted access to the Internet via Concentric's Internet
connection at the bandwidth selected by Customer and set forth and in Exhibit A.
Concentric shall provide regular routing and other systems administration and
support services as reasonably necessary to maintain access to the Internet via
Concentric's Internet connection. Concentric agrees to provide adequate physical
security for the System and a physical space and environment (including, without
limitation, electrical, ventilation, moisture, temperature, cleanliness, etc.)
in accordance with industry standards and will afford reasonable physical
accessibility to the System. Concentric agrees to use reasonable efforts to
provide back up sources of power to be utilized to keep the System in continuous
operation in the event of an interruption of electrical power.
1.3 INTERNET CONNECTIONS. To link the System to the Internet, Concentric shall
provide, subject to the payment by Customer of the charges specified in Exhibit
A as selected by Customer, on a continuous, twenty-four (24) hour basis, access
to appropriate Internet connections to support Customer's service selections in
a form suitable for connection to the
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Systems. Concentric will provide and implement such access so that the Systems
enjoys sufficient communications bandwidth to ensure efficient access to the
Internet Site at all times and without abnormal communication delays, including
during peak usage periods. Notwithstanding the preceding, Eloquent acknowledges
and agrees that Concentric is not responsible for downtime or delays due to
technical problems relating to the Internet.
2.0 FEES AND BILLING
2.1 Customer will pay Concentric all fees for the Services selected by Customer
in Exhibit B in accordance with the price schedule in Exhibit A ("Fees") less
ten percent (10%) for the term of this Agreement. Concentric agrees that in the
event that market conditions dictate lower pricing than what is stated in
Exhibit A, both parties agree to amend this Agreement to reflect the market
conditions. At such time, Concentric shall provide an updated Exhibit A with the
amended reduced pricing and Customer shall pay fees in accordance with such
amended price schedule in Exhibit A ("Fees") less ten percent (10%) for the
remainder of the term of this Agreement.
2.2 All Fees shall be paid at Concentric's address as indicated in this
Agreement or at such other address as Concentric may from time to time indicate
by proper notice hereunder. All invoices are due and payable within thirty (30)
days of Concentric's date of invoice.
2.3 All Fees are in U.S. Dollars and are exclusive of any applicable taxes.
Customer shall pay, indemnify, and hold Concentric harmless from all sales, use,
value added or other taxes of any nature, other than taxes on Concentric's net
income, including penalties and interest, and all government permit or license
fees assessed upon or with respect to any Fees (except to the extent Customer
provides Concentric with a valid tax exemption certificate) provided that
Concentric gives Eloquent prompt written .. notice of any such taxes. If any
applicable law requires Customer to withhold amounts from any payments to
Concentric hereunder: (a) Customer shall effect such withholding, remit such
amounts to the appropriate taxing authorities and promptly furnish Concentric
with tax receipts evidencing the payments of such amounts; and (b) the sum
payable by Customer upon which the deduction or withholding is based shall be
increased to the extent necessary to ensure that, after such deduction or
withholding, Concentric receives and retains, free from liability for such
deduction or withholding, a net amount equal to the amount Concentric would have
received and retained in the absence of such required deduction or withholding.
3.0 PROMOTION.
3.1 Both parties agree to cooperate with each other so that each party may issue
a press release concerning this Agreement, provided that each party must approve
any press release prior to its release. Company agrees it may be designated as a
"reference account" for Concentric's hosting and co-location services to certain
potential customers and to provide Concentric the ability to access the
Customer's co-located demo server for demo purposes.
3.2 Both parties agree to negotiate terms and conditions based on Concentric's
then current virtual private network services agreement. such that Customer will
acquire such services from Concentric for resale to its customers. Fees for such
services will be reasonable and commensurate with then current market
conditions.
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4.0 REPRESENTATIONS AND WARRANTIES.
4.1 Each party represents and warrants that it has the right and authority to
enter into this Agreement, and that by entering into this Agreement, it will not
violate, conflict with or result in a material default under any other contract,
agreement, indenture, decree, judgment, undertaking, conveyance, lien or
encumbrance to which it is a party or by which it or any of its property is or
may become subject or bound. Each party shall not grant any rights under any
future agreement, nor will it permit or suffer any lien, obligation or
encumbrances that will conflict with the performance of this Agreement. Both
parties represent and warrant that they will, at their own expense comply with
all laws, regulations and other legal requirements that apply to them and this
Agreement, including copyright, privacy and communications decency laws.
4.2 Concentric warrants that the Services will be performed in a good and
workmanlike manner at a quality of no less than industry standard. Customer
acknowledges that Concentric makes no warranty regarding any third party
hardware and software. Third party hardware and software procured by Concentric
for Customer as part of the Services may be warranted by its manufacturer.
4.3 Customer represents and warrants that it will: (a) not use any Concentric
equipment or services in a manner that: (i) is prohibited by any law or
regulation or Concentric policy, or to facilitate !he violation of any law or
regulation or such policy; or (ii) will disrupt third parties' use or enjoyment
of any communications service or outlet; (b) not violate or tamper with the
security of any Concentric computer equipment or program; and (c) have an
agreement with each of its customers sufficient to comply with the terms herein.
Customer acknowledges that prohibited conduct includes, but is not limited to,
use of the Concentric network to invade the privacy of third parties,
impersonation of Concentric personnel or other Concentric customers,
transmitting via e-mail, USENET or chat service any abusive, profane, libelous,
slanderous, threatening or otherwise harassing material or use of the Concentric
network in connection with the transmission of the same or substantially similar
unsolicited message to 50 or more recipients or 15 or more newsgroups in a
single day, provided, however, that Customer may, at the request of its third
party customers, transmit the same or substantially similar messages to such
third party customer's employees, agents, resellers and other individuals and
entities acting on behalf of the third party customer.
4.4 THE WARRANTIES SET FORTH IN SECTIONS 4.1 AND 4.2 ARE THE SOLE AND EXCLUSIVE
WARRANTIES' MADE BY CONCENTRIC. THE WARRANTIES SET FORTH IN SECTIONS 4.1 AND 4.3
ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY CUSTOMER. CONCENTRIC AND CUSTOMER
MAKE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. CONCENTRIC EXPRESSLY
DISCLAIMS ANY: (a) WARRANTY OF DESIGN, MERCHANTABILITY, NONINFRINGEMENT OR
FITNESS FOR A PARTICULAR PURPOSE, EVEN IF CONCENTRIC HAS BEEN INFORMED OF SUCH
PURPOSE; OR (b) WARRANTY THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR WITHOUT
INTERRUPTION AND ALL LIABILITY ON ACCOUNT THEREOF.
5.0 LIMITATION OF LIABILITY.
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Except for a breach of Section 4, or obligations arising out of Section 8.5 in
no event shall a party shall be liable for special, incidental, consequential or
punitive damages of any nature, for any reason, including without limitation any
termination of this Agreement, whether such liability is asserted on the basis
of contract, tort (including negligence or strict liability) or otherwise, even
if a party has been warned of the possibility of such damages, and
notwithstanding any failure of essential purpose of any limited remedy.
Concentric acknowledges that Customer shall not be liable to Concentric for any
claims regarding any third party hardware and software provided by Customer.
Third party hardware and software procured by Customer and used on System may be
warranted by its manufacturer. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, CONCENTRIC SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES UNLESS SUCH
DAMAGES ARE DUE TO THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CONCENTRIC. EXCEPT
FOR A BREACH OF SECTION 4, OR OBLIGATIONS ARISING OUT OF SECTION 8.5, A PARTY'S
ENTIRE LIABILITY TO THE OTHER PARTY CONCERNING PERFORMANCE OR NONPERFORMANCE IN
ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF
WHETHER A CLAIM IS BASED IN CONTRACT, NEGLIGENCE OR IN TORT, SHALL NOT EXCEED
THE FEES RECEIVED BY CONCENTRIC FROM CUSTOMER UNDER THIS AGREEMENT DURING THE
PREVIOUS TWELVE (12) MONTHS.
6.0 CONFIDENTIAL INFORMATION
Each party agrees to maintain all Confidential Information in confidence to the
same extent that it protects its own similar Confidential Information and to use
such Confidential Information only as permitted under this Agreement. For
purposes of this Agreement "Confidential Information" shall mean information
including, without limitation, computer programs, code, algorithms, names and
expertise of employees and consultants, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other technical,
business, financial and product development plans, forecasts, strategies and
information marked "Confidential", or if disclosed verbally, is identified as
confidential at the time of disclosure. Confidential Information of Customer
specifically includes but is not limited to all Content that is stored on the
Customer Systems. Concentric will have in place an appropriate agreement
sufficient to comply with this Section 6 with any person permitted access to
Confidential Information pursuant to this Section. Each party agrees to take all
reasonable precautions to prevent any unauthorized disclosure or use of
Confidential Information including, without limitations disclosing Confidential
Information only to its employees: (a) with a need to know to further permitted
uses of such information; (b) who are parties to appropriate agreements
sufficient to comply with this Section 6; and (c) who are informed of the
nondisclosure/non-use obligations imposed by this Section 6; and both parties
shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure and
use shall survive for three (3) years following termination of this Agreement
but shall not apply with respect to any Confidential Information which: (i) was
or becomes publicly known through no fault of the receiving party; (ii) was
rightfully known or becomes rightfully known to the receiving party without
confidential or proprietary restriction from a source other than the disclosing
party; (iii) is independently developed by the receiving party without the
participation of individuals who have had access to the Confidential
Information; (iv) is approved by the
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disclosing party for disclosure without restriction in a written document which
is signed by a duly authorized officer of such disclosing party; and (v) the
receiving party is legally compelled to disclose; provided, however, that prior
to any such compelled disclosure, the receiving party will: (d) assert the
privileged and confidential nature of the Confidential Information against the
third party seeking disclosure; and (e) cooperate fully with the disclosing
party in protecting against any such disclosure and/or obtaining a protective
order narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not
obtained, the receiving party will be entitled to disclose the Confidential
Information, but only as, and to the extent, necessary to legally comply with
such compelled disclosure. Each of the parties hereto agrees not to disclose to
any third party the terms of this Agreement without the prior written consent of
the other party hereto, except to advisors, investors and others on a
need-to-know basis under circumstances that reasonably ensure the
confidentiality thereof, or to the extent required by law.
7.0 TERM AND TERMINATION
7.1 The term of this Agreement shall commence on the Effective Date and continue
for the term elected by Customer as set forth in Exhibit B, which shall be no
less than one (1) year. At the expiration of this initial term, this Agreement
shall automatically renew for a term of one (1) year subject to Customer's
acceptance of Concentric's then current Fees ninety (90) days prior to the
expiration of the then current term provided that Customer has received
sufficient prior written notice of such fees and that Customer accepts such
Fees, unless notice of non-renewal is sent by either party no less than ninety
(90) days before expiration of the then current term.
7.2 Concentric may terminate this Agreement upon written notice: (a) for any
material breach of this Agreement, which Customer fails to cure within thirty
(30) days following written notice by Concentric of such breach; or (b) upon
Customer's insolvency or liquidation as a result of which Customer ceases to do
business for a continuous period of at least three (3) months. Customer may
terminate this Agreement upon written notice: (a) for any material breach of
this Agreement which Concentric fails to cure within thirty (30) days following
written notice by Customer of such breach; or (b) upon Concentric's insolvency
or liquidation as a result of which Concentric ceases to do business for a
continuous period of at least three (3) months (c) upon ninety (90) days' prior
written notice for convenience any time after the expiration of the initial
term.
8.0 OTHER PROVISIONS
8.1 NON-ASSIGNMENT. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
Notwithstanding the above, this Agreement may not be assigned in whole or in
part by a party, without the written consent of the other party, which shall not
be unreasonably withheld. Any assignment in violation of this paragraph shall be
null and void, except for the circumstance of corporate acquisition, in whole,
or in part.
8.2 INDEPENDENT CONTRACTORS. The parties shall have the status of independent
contractors, and nothing in this Agreement shall be deemed to place the parties
in the relationship of employer-employee, principal-agent, or partners or in a
joint venture.
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8.3 NON-WAIVER. Failure of either party to enforce any of its rights hereunder
shall not be deemed to constitute a waiver of its future enforcement of such
rights or any other rights.
8.4 SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal, or unenforceable under present or future laws, such item shall be
struck from the Agreement; however, such invalidity or enforceability shall not
affect the remaining provisions or conditions of this Agreement. The parties
shall remain legally bound by the remaining terms of this Agreement, and shall
strive to reform the Agreement in a manner consistent with the original intent
of the parties.
8.5 INDEMNITY. Concentric, at its sole discretion, may elect to electronically
monitor the Concentric network and may disclose any content or records
concerning Customer's account as necessary to satisfy any law, regulation, or
other governmental request or to properly operate the Concentric network and
protect any of its customers provided, however, that prior to any such compelled
disclosure, the Concentric will: (a) provide Customer with prompt written notice
of such possible disclosure prior to making any disclosure, (b) assert the
privileged and confidential nature of the content against the third party
seeking disclosure; and (b) cooperate fully with Customer in protecting against
any such disclosure and/or obtaining a protective order narrowing the scope of
such disclosure. In the event that such protection against disclosure is not
obtained, Concentric will be entitled to disclose the content or records, but
only as, and to the extent, necessary to legally comply with such compelled
disclosure.. Customer expressly agrees that Concentric shall not be liable to
Customer or its customers for any action Concentric takes to remove or restrict
access to obscene, indecent or offensive content made available by Customer, nor
for any action taken to restrict access to material made available in violation
of any law, regulation or rights of a third party, including but not limited to,
rights under the copyright law and prohibitions on libel, slander and invasion
of privacy. Customer agrees to indemnify, hold harmless and upon request, defend
Concentric, from and against any and all claims, liability, losses, damages,
expenses and costs (including attorneys' fees) arising out of or in connection
with: (a) proprietary rights infringement claims based on Concentric's use
and/or operation of the System, other products provided to Concentric by
Customer, or Customer's proprietary software except to the extent such claims,
liability, loss, damage, expense or cost is due solely to the willful misconduct
or gross negligence of Concentric; and (b) information or content provided,
accessed or made available by Customer on Concentric's network.
8.6 FORCE MAJEURE. Either party shall be excused from any delay or failure in
performance hereunder caused by reason of any occurrence or contingency beyond
its reasonable control, including but not limited to, acts of God, earthquake,
labor disputes and strikes, riots, war or other unanticipated occurrences or
problems, and governmental requirements. The obligations and rights of the party
so excused shall be extended on a day-to-day basis for the period of time equal
to that of the underlying cause of the delay.
8.7 GOVERNING LAW. This Agreement shall be deemed to have been made in the State
of California, and the provisions and conditions of this Agreement shall be
governed by and interpreted in accordance with the substantive laws of the State
of California, without regard to conflict of laws provisions.
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8.8 ARBITRATION. Any dispute or claim arising out of or in connection with this
Agreement or the performance, breach or termination thereof, shall be finally
settled by binding arbitration in San Jose, California under the Rules of
Arbitration of the American Arbitration Association by an arbitrator appointed
in accordance with those rules. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, either party may apply to any court of competent
jurisdiction for equitable relief without breach of this arbitration provision.
All costs and expenses, including reasonable attorney's fees, of all parties
incurred in any dispute which is determined and/or settled pursuant to this
Section shall be borne by the party determined to be liable in respect of such
dispute; provided, however, that if compete liability is not assessed against
any one party, the parties shall share the total costs in proportion to their
respective amounts of liability so determined.
8.9 INTEGRATION. This Agreement expresses the complete and final understanding
of the parties with respect to the subject matter hereof, and supersedes all
prior communications between the parties, whether written or oral with respect
to the subject matter hereof. No modification of this Agreement shall be binding
upon the parties hereto, unless evidenced by a writing duly signed by authorized
representatives of the respective parties hereto.
8.10 NOTICES. Any required notices hereunder shall be given in writing by
certified mail or overnight express delivery service (such as DHL) at the
address of each party below, or to such other address as either party may from
time to time substitute by written notice. Notice shall be deemed served when
delivered or, if delivery is not accomplished by reason or some fault of the
addressee, when tendered.
If to Concentric: If to Customer:
Contracts Manager Director, Contract Admin.
Concentric Network Corporation Eloquent Inc.
00000 X. Xxxxxx Xxx. 0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
000 000-0000 000 000-0000
AGREED AND ACCEPTED:
CONCENTRIC NETWORK CORPORATION ELOQUENT, INC. ("CUSTOMER")
"(CONCENTRIC")
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
---------------------------------- -------------------------------------
(Authorized Signature) (Authorized Signature)
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxxxx
----------------------------- -----------------------------------
Title: Senior Vice President and Title: Chief Financial Officer
Chief Financial Officer -----------------------------------
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EXHIBIT A
SERVICES PROVIDED & FEE SCHEDULE
FOR CO-LOCATION SERVICE
STANDARD SERVICES
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DESCRIPTION OF SERVICE FEE
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Customer Service/Operations Support No Charge
24 X 7 Network Operations Center (NOC)
VIA 408.327.2200
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Bandwidth Utilization Reports No Charge
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Block of 16 IP Addresses No Charge
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NON-RECURRING FEES
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DESCRIPTION OF SERVICE FEE
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Server Installation $1,000 per set-up
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File System Backup Set-up* $500 per server
*Customer MUST supply a 2nd Network Interface Card
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Customer Performance Reporting: $800 per server
Aquas Bazzar 2.0
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MONTHLY RECURRING FEES
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BANDWIDTH OPTIONS DESCRIPTION OF SERVICE
(INCLUDES 8 INCHES OF RACK FEE FEE
SPACE) 1 YEAR TERM 2 YEAR TERM
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500 Kbps Shared 10 Mbps Ethernet $ 550 $ 480
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1 Mbps Shared 10 Mbps Ethernet $1,200 $1,050
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2 Mbps Shared 10 Mbps Ethernet $1,925 $1,675
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4 Mbps Shared 10 Mbps Ethernet $2,750 $2,400
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10 Mbps Dedicated 10 Mbps Ethernet $4,400 $3,850
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Greater than 10 Mbps Dedicated Ethernet Price quoted Price quoted
upon request upon request
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OPTIONAL SERVICES (MONTHLY RECURRING)
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FEE FEE
EQUIPMENT STORAGE OPTIONS DESCRIPTION OF SERVICE 1 YEAR TERM 2 YEAR TERM
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Additional Rack Space 8 inch shelf $ 75 $ 75
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Dedicated Rack Complete 8 foot rack $ 500 $ 475
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Dedicated Cabinet Complete 8 foot secure $ 500 $ 475
Lockable Cabinet
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Dedicated Cage Secure Lockable Cage Quoted upon Quoted upon
request, request,
Availability is Availability is
site specific site specific
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PERFORMANCE AND REPORTING OPTIONAL SERVICES (MONTHLY RECURRING)
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DESCRIPTION OF SERVICE FEE
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Log Analysis & Reporting $ 750
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Performance Reporting: $ 400
Keynote
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File System Backup* $ 300
*Customer MUST supply a 2nd Network Interface Card
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REMOTE HANDS SERVER MANAGEMENT AND MAINTENANCE (MONTHLY RECURRING)
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ON DEMAND - REMOTE HANDS SERVICE* *SEE DESCRIPTION OF REMOTE HANDS BELOW
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Level of Service Fee - Based on Actual Usage
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Level 1 No Charge - Included with Service
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Xxxxx 0 $ 190 per hour
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Xxxxx 0 $ 250 per hour
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MONTHLY CONTRACTED - REMOTE HANDS SERVICE* *SEE DESCRIPTION OF REMOTE HANDS BELOW
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LEVEL OF SERVICE XXXXX 0 XXXXX 0
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Up to 10 hours $ 1,250 $ 1,500
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Up to 25 hours $ 2,750 $ 3,375
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Up to 50 hours $ 4,000 $ 5,250
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REMOTE HANDS SERVICE DESCRIPTION
1. REMOTE HANDS SERVICES. Customer has, pursuant to the Agreement, located
certain equipment with Concentric's premises, and may from time to time request
that Concentric perform certain basic services with respect to such equipment.
Such services (herein referred to as "Remote Hands") offer an opportunity for
the Customer to avoid dispatching field services personnel for certain basic
on-site activity.
2. LEVELS OF SERVICE. Remote Hands Services include three (3) levels of service
as follows:
REMOTE HANDS LEVEL 1, involves the most basic activities of an on-site
technician, performed with "eyes", "ears" and "fingers", but without involvement
of tools, equipment, physical labor, keyboard or other data input. Examples of
Level 1 services would include:
Pushing an external button
Switching an external toggle
Power cycling (turning on and off) equipment
Scouting external cabling to connections
Observing, describing or reporting on Indicator lights or display information on
machines or consoles Basic observation and reporting on local environment within
Concentric's premises
REMOTE HANDS XXXXX 0, involves all the services of Level 1, plus some
configuration or running of certain basic operations pursuant to specific
real-time instructions from Customer. This level of service does not involve
opening or moving equipment or any direct hardware or software interaction.
Examples of Level 2 services would include:
Typing commands on a keyboard console
Changing of pre-labeled tapes
Cable organization, ties, or labeling
Modifying basic cable layout, such as Ethernet of FDDI connections
Re-labeling equipment
Concentric shall, in its reasonable discretion, determine the appropriate level
of Remote Hands to which each service request falls.
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REMOTE HANDS LEVEL 3, involves all the services of Level 2, plus direct contact
with equipment configuration, including hardware and software interaction,
provided Customer provides accurate, understandable real-time instructions.
Examples of Level 3 services would include:
Installation of previously received customer supplied equipment in existing rack
space Replacing hardware components with customer received spares or upgrades
Adding customer received memory
Upgrading drive capacity by installation of customer received new or additional
disk drives
3. CUSTOMER DIRECTION: Customer is required to provide clear, specific and
detailed instructions with respect to services requested. Concentric's
technicians are not required to act on directions which they believe are unclear
or incomplete. Technicians are not expected nor required hereunder to make
judgments or exercise discretion with respect to requested services, nor to make
recommendations as to courses of action to follow. If a technician either
doesn't understand an instruction, or believes it to be incorrect or
inadvisable, Customer agrees that technician may elect not to proceed with such
task until his or her concerns have been resolved, but neither Concentric nor
the technician shall have any responsibility or liability for carrying out any
requested procedure implemented in accordance with Customer's specific request.
4. PAYMENT OPTIONS AND TERMS: Remote Hands services may be purchased on a per
hour basis as needed (herein referred to as "On Demand"), or on a monthly
contract basis.
4.1 ON DEMAND: For Level 2 and Level 3 charges On Demand Remote Hands
services there is a one (1) minimum charge per request, with fifteen (15)
increments thereafter.
4.2 MONTHLY CONTRACT: The monthly contract amount shall be
non-refundable whether or not Customer utilizes all of the contractual services
hours during any month, and no service hours may be carried over to a subsequent
month. In the event a Customer requests service in excess of the monthly
contract amount, Customer will be billed for such excess hours at the Customer's
current contract rate. If the level of service (e.g., Levels 1, 2, or 3)
requested by Customer is higher than the level that Customer has contracted for,
the service will be billed at the applicable "On Demand" rate.
4.3 INVOICING. Invoices shall be provided monthly for services rendered
during the preceding month, shall be fully itemized with supporting
documentation, if any, attached. Payments for invoices shall be due 30 days from
date of invoice unless Customer reasonably and in good faith, disputes an
amount(s) listed on an invoices as incorrect.
5. REQUEST PROCEDURE: Customer shall initiate a Remote Hands Service request by
following the reasonable procedure specified in documentation provided by
Concentric to Customer, as such procedures may be modified by notice to Customer
from Concentric from time to time. Each service request requires a separate
verbal communication and initiation by Customer with Concentric's Network
Operations Center ("NOC"), and MUST be followed by fax, email, or other written
confirmation of a request for service. In the event customer has not elected a
Remote Hands service Option in Exhibit B, each request for Remote Hands services
will be billed to Customer at the applicable On Demand hourly rate as defined
herein and shall require an original signed request for service from a
previously authorized Customer representative. In cases of emergency, a signed
facsimile transmission service request followed by a signed original is
acceptable. Concentric's technician will use commercially reasonable efforts to
respond to a Customer request for Remote Hands service by telephone or
electronic communication within 30 minutes of receipt of the initial Customer
request. Technician will assign an Incident Tracking Number and will use
commercially reasonable efforts to commence the rendering of the service within
one (1) hour from the assignment of the Incident Tracking Number.
6. SYSTEMS MAINTENANCE SERVICES. Concentric agrees to perform the Customer
selected systems maintenance and repair services for the System as described
herein. Concentric shall perform its services in a timely and professional
manner in accordance with standards generally observed in the industry for
similar services and with no less care and diligence than it provides with
respect to the observation and maintenance of its own equivalent systems.
Concentric shall promptly notify Customer of any errors in the hardware of the
System and shall provide reasonable assistance in connection with the correction
of any such errors. With reasonable prior notice, Concentric shall allow
Customer employees or agents physical access to the System for routine
maintenance or other non-
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emergency purpose at any time subject to such third agents' execution of a
nondisclosure agreement reasonably acceptable to Concentric and compliance with
Concentric's security requirements.
SOFTWARE MAINTENANCE SERVICES. Customer shall be free to contract with
independent third parties to provide software maintenance services for the
System and Concentric will allow such third parties reasonable access to the
System as necessary to perform such database software maintenance services
subject to such third parties' execution of a nondisclosure agreement reasonably
acceptable to Concentric and compliance with Concentric's security requirements.
INTERNET CONNECTION SUPPORT. Concentric acknowledges that errors in the Internet
Connection are extremely serious and must be resolved with the greatest possible
urgency. Concentric will provide Customer, and any third party designated by
Customer to be responsible for the maintenance of the Software, with a beeper
number that can be used at any time to contact a responsible Concentric employee
who will return the beeper call within one (1) hour and who will arrange to give
Customer or its designated representative physical access to the System, whether
or not during normal business hours, within four (4) hours of the initial
telephone call to the beeper number provided by Concentric and reasonable
assistance, cooperation and technical support relating to Concentric's
environment and in diagnosing and remedying computer system malfunctions.
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EXHIBIT B
CUSTOMER SELECTION OF SERVICES
Customer must indicate below the desired Services and optional Services under
each category. Selections of Services indicated by Customer herein shall
indicate authorization by Customer for Concentric to invoice appropriately.
Customer may change selection at any time provided that Customer gives
Concentric at least 30 days prior written notice of such change in selection.
CONTRACT TERM COMMITMENT
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TERM LENGTH DESIRED TERM LENGTH
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One Year initial term of one year
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Two Years
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NON-RECURRING SERVICES
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DESCRIPTION OF SERVICES NUMBER OF UNITS TOTAL FEE DESIRED SERVICE
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Server Installation (fee per 4 $4,000 Yes
setup)
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File System Backup Set-up* No
(fee per server)
*Customer MUST supply a 2nd --
Network Interface Card
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Customer Performance No
Reporting:
Aquas Bazzar 2.0 --
(fee per server)
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Block of 161P Addresses No Charge Yes
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MONTHLY RECURRING SERVICES
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BANDWIDTH OPTIONS NUMBER OF UNITS TOTAL FEE DESIRED SERVICE
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500 Kbps (Shared Ethernet) ---
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1 Mbps (Shared Ethernet) 1 $1,200 1 Mbps may be
upgraded with 30 days
notice
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2 Mbps (Shared Ethernet) -- --
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4 Mbps (Shared Ethernet) -- --
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10 Mbps (Dedicated Ethernet) -- --
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_______ Mbps (Dedicated -- --
Ethernet)
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CO-LOCATION SPACE TYPE (MONTHLY RECURRING)
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EQUIPMENT STORAGE OPTION NUMBER OF TOTAL FEE DESIRED SERVICE
UNITES
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Shelf (8 inch racks) -- --
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Dedicated Rack (8 foot rack) 1 $500 yes
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Dedicated Cabinet (8 foot -- --
lockable cabinet)
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Dedicated Cage (Availability is -- --
site specific)
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PERFORMANCE AND REPORTING OPTIONAL SERVICES (MONTHLY RECURRING)
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REPORTING TYPE TOTAL FEE DESIRED SERVICE
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Bandwidth Utilization No Charge yes
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Keynote $400 --
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I/PRO $750 --
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SYSTEM BACKUP (MONTHLY RECURRING)
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DESCRIPTION OF SERVICE NUMBER OF UNITS TOTAL FEE DESIRED SERVICE
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File System Backup* No
*Customer MUST provide a ---
2nd Network Interface Card.
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REMOTE HANDS OPTIONAL SERVICES (MONTHLY RECURRING)
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ON DEMAND
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TYPE OF SERVICE HOURS PER MONTH TOTAL FEE* DESIRED SERVICE
HOURLY FEE IS BASED
ON ACTUAL USAGE
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Level 1 N/A No Charge, Included yes, may be upgraded
with service with 30 days notice
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Level 2 N/A $195 per hour x --
actual usage*
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Level 3 N/A $250 per hour x --
actual usage*
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MONTHLY CONTRACTED - REMOTE HANDS SERVICE* *SEE DESCRIPTION OF REMOTE HANDS BELOW
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DESIRED SERVICE DESIRED SERVICE
LEVEL OF SERVICE XXXXX 0 (XXXXX 0) XXXXX 0 (XXXXX 3)
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Up to 10 Hours $1,250 --- $1,500 ---
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Up to 25 Hours $2,750 --- $3,375 ---
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Up to 50 Hours $4,000 --- $5,250 ---
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EXHIBIT C
CUSTOMERS EQUIPMENT
TO BE LOCATED WITHIN CONCENTRIC'S DATA CENTER
To be completed by Customer:
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QUANTITY BRAND TYPE SERIAL NUMBER
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OBLIGATIONS OF CUSTOMER:
Customer shall:
Supply hardware and software to the Concentric facility. Customer shall arrange
for the initial shipment, pay shipping cost, and provide insurance for
Customer's equipment at Concentric's data center with Customer as the named
payee. Customer shall arrange for the return of the Customer's hardware and
software upon the termination of this Agreement.
Installation and maintenance of Customer system software on hardware located in
Concentric's data center, unless contracted with Concentric separately under
Remote Hands as defined herein. Customer shall coordinate communication between
Concentric and other third parties as required herein.
Be responsible for the proper functioning of hardware and software.
Require that Content hosted at Concentric's facility in compliance with all
state and federal laws.
Supply any hardware or licensed software as deemed necessary by Customer for
repairs.
OBJECT CODE LICENSE. Subject to the terms and conditions of this Agreement,
Customer grants Concentric a nontransferable, non-exclusive limited license to
use object code versions of the software and documentation strictly limited to
use on behalf of and for the benefit of Customer, solely on the Customer's
hardware, solely at the Site or other locations as agreed to in writing by
Customer, solely in connection with the operation and maintenance of the System
as directed by Customer. No other rights are granted with regard to use of the
software and documentation.
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SAFEKEEPING. Concentric shall, while the System is in its possession and
control, implement and maintain procedures and facilities in accordance with
industry standards for its safekeeping and to guard against any loss of and/or
destruction to the System.
INSTALLATION. Concentric shall cooperate with Customer and Customer's designated
representatives to complete the installation of the System at Concentric's
facility.
REMOVAL. Upon the expiration or earlier termination of this Agreement or of the
parties' relationship of the Agreement, Concentric shall cooperate with Customer
or its designated representative's efforts to deinstall and to remove the System
in good working order from Concentric's premises.
CHANGE OF LOCATION. Concentric agrees not to remove the System from the facility
where it is originally installed unless Concentric obtains Customer's prior
written consent to such removal.
OWNERSHIP. Concentric agrees that the System and all Software and Hardware
therein shall remain the personal property of Customer. Concentric shall have no
right, title or interest therein, and Concentric shall do nothing inconsistent
with Customer's title, including, but not limited to, transferring, selling,
assigning, sublicensing, pledging, or otherwise disposing of, encumbering, or
suffering a lien or encumbrance upon or against any interest in the System
without Customer's prior written consent.
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