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EXHIBIT 10.13
GLOBALCENTER INC., A GLOBAL CROSSING COMPANY
MASTER SERVICE AGREEMENT NO.
____________________________
This Master Service Agreement (this "Agreement") is entered into on the _______
day of ______________, 2000 ("Effective Date") by and between ________________,
on behalf of itself and the subsidiary, affiliate, division and/or business unit
("Client") indicated on the Service Order Form attached hereto, with an office
at the address listed on the Service Order Form, and GlobalCenter Inc., a
Delaware Corporation with offices at 000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
("GlobalCenter"), to set forth the terms and conditions pursuant to which
GlobalCenter shall provide to Client certain Services (as defined in the Service
Order). The entire contract between the parties shall consist of this Agreement
and one or more Service Order(s). Unless otherwise agreed to, in writing, by
both parties, all future Service Orders entered into between the Client and
GlobalCenter will be bound by this Agreement.
In consideration of the mutual promises and upon the terms and conditions set
forth below, the parties agree as follows:
1. NATURE OF AGREEMENT
Pursuant to this Agreement, GlobalCenter shall sell and provide to Client, in
consideration for the applicable fees as set forth in a Service Order the
following: (i) Internet connectivity services (the "Bandwidth"); (ii) the lease
(if so indicated on the Service Order) or purchase by Client of equipment to
provide such services (the "Hardware") and the installation of such equipment;
(iii) a license of space to store and operate such Hardware ("Space"); (iv)
management, planning and consulting resources to support these services,
including maintenance and operation of the Hardware ("Support"), (v) the
licensing of software to provide such Services (the "Software"), including,
without limitation, monitoring software, billing software, trouble ticketing
software, data collection and process control software; and (vi) any additional
service offerings that GlobalCenter may, from time to time, introduce, which
together, including all telecommunication and digital transmission connections
and links, all electrical and physical requirements, comprise an Internet
connectivity and collocation package to support Client's web site(s) ("Client's
Web Sites") under this Agreement and are referred to hereinafter as the
"Services" (and each, individually, as a "Service").
The Services will be provided in accordance with the specifications set forth in
the Service Specification(s) attached to this Agreement and in any Service
Order(s) hereto and made a part hereof.
2. SERVICE ORDERS
2.1. ORDERS. Client and GlobalCenter may execute one or more Service Orders
describing the Services that Client desires to purchase from GlobalCenter. Each
Service Order shall set forth the Services to be provided by GlobalCenter, the
specifications applicable to each such Service, the prices and payment schedule,
the initial term of such Services (the "Initial Service Term") and other
information the parties may mutually agree upon. No Service Order shall be
effective until executed by GlobalCenter.
2.2. CONFLICTS. All Service Orders will be subject to the terms and
conditions of this Agreement; provided however, that in the event of conflict
between the terms contained in any Service Order and terms in this Agreement,
the terms contained in the Service Order shall control. In the event of conflict
between terms in this Agreement (including any applicable Service Order) and
terms contained in any Client-issued order form or purchase order, the terms of
this Agreement (including any applicable Service Order) shall control.
2.3. CANCELLATION. In the event that Client cancels or terminates a Service
Order at any time for any reason, other than expiration of a Service Order or
pursuant to Section 6.6, Client agrees to pay GlobalCenter all Monthly Recurring
Charges specified in the Service Order for the balance of the term therefore,
which shall accelerate become due and payable on the effective date of such
cancellation or termination. Upon the cancellation or termination of a Service
Order by Client, GlobalCenter shall, upon Client's written request, give full
cooperation and assistance to Client to assure an orderly and efficient
transition.
2.4. IP ADDRESSES. GlobalCenter will assign, on a temporary basis, a
reasonable number of Internet Protocol Addresses ("IP Addresses") from the
address space assigned to GlobalCenter by InterNIC. Client acknowledges that IP
Addresses are the sole property of GlobalCenter, are assigned to Client as part
of, and in connection with, the Services, and are not "portable," as such term
is used by InterNIC. GlobalCenter reserves the right to change IP Address
assignments at any time; however, GlobalCenter shall use reasonable efforts to
avoid any disruption to Client resulting from such renumbering requirement.
GlobalCenter will give Client reasonable notice of any such renumbering. Client
acknowledges and agrees that it will have no right to IP Addresses upon
termination of this Agreement or any applicable Service Order, and that any
renumbering required of Client after termination shall be the sole
responsibility of Client.
2.5. STAFFING. GlobalCenter shall be solely responsible for staffing
decisions with respect to its personnel and the provision of any Services and
shall have the right to remove or replace any of its personnel assigned to
perform Services.
3. SOFTWARE LICENSE AND RIGHTS
3.1. LICENSE. During the term of any applicable Service Order, GlobalCenter
grants Client a non-transferable, nonexclusive license to use the Software in
object code form only, solely on the Hardware, or GlobalCenter equipment, in
conjunction with the Services.
3.2. PROPRIETARY RIGHTS. This Agreement transfers to Client neither title
nor any proprietary or intellectual property rights to the Software,
documentation, or any copyrights, patents, trademarks or any other intellectual
property embodied or used in connection therewith, except for the rights
expressly granted in Section 3.1 of this Agreement.
3.3. LICENSE RESTRICTIONS Client agrees that it will not itself, or
through any parent, subsidiary, affiliate, agent or other third party:
3.3.1. Copy the Software except as expressly allowed under this Agreement. In
the event Client makes any such permitted copies of the Software, Client shall
reproduce all proprietary notices of GlobalCenter on any such copies;
3.3.2. reverse engineer, decompile, disassemble, or otherwise attempt to
derive source code from the Software;
3.3.3. sell, lease, license or sublicense the Software or the documentation;
3.3.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.3.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a 'service bureau' basis.
3.4. SOFTWARE REPRESENTATIONS AND WARRANTIES. GlobalCenter represents and
warrants that: (i) it has the right, power and authority to license the Software
to Client pursuant to this Agreement free of all liens, encumbrances and other
restrictions; (ii) the Software shall operate and run in accordance with the
Service Specifications indicated in the Agreement or referenced in the
applicable Service Order, (iii) to the best knowledge of GlobalCenter, the
license furnished by GlobalCenter hereunder and/or the use of the Software by
Client in accordance with the terms and conditions herein or in any Service
Order, will not infringe upon nor violate any patent, copyright, trade secret,
or other proprietary right of any third party; (iv) Client's use and possession
of the Software consistent with the terms of this Agreement, shall not be
adversely affected, interrupted or disturbed by GlobalCenter
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or any entity asserting a claim under or through GlobalCenter; and (v) the
installation and use of the Software and any Upgrades shall not degrade, impair
or otherwise adversely affect the performance or operation of the Hardware.
4. HARDWARE TERMS AND CONDITIONS
4.1. INSTALLATION. If so indicated on the Service Order, GlobalCenter will
use commercially reasonable efforts to install the Hardware as the Hardware is
shipped to GlobalCenter and will work with the Client on an installation plan to
define installation time frame and requirements.
4.2. PURCHASE AND TITLE OF HARDWARE. If so indicated on the Service Order,
Client shall purchase the Hardware and deliver, at Client's expense, the
Hardware to the Space. Client agrees that the Hardware shall reside at the Space
during the term of this Agreement.
4.3. LEASE OF HARDWARE. If so indicated on the Service Order, Client shall
lease the Hardware, and GlobalCenter shall obtain and deliver the Hardware to
the Space. In the event Client leases the Hardware, the following terms and
conditions shall apply: The Hardware is and shall remain the property of
GlobalCenter. Client shall not take, or attempt to take, any right, title or
interest therein or permit any third party to take any interest therein. Client
will not transfer, sell, assign, sublicense, pledge, or otherwise dispose of,
encumber or suffer a lien or encumbrance upon or against the Hardware or any
interest in the Hardware. Client will use the Hardware only in the Space. Client
will not move the Hardware from the Space without GlobalCenter's prior written
permission. Client shall be responsible for any damage to the Hardware caused by
Client's negligent or willful acts or omissions. Client will use the Hardware
only for the purpose of exercising its rights under this Agreement.
4.4. RENT TO OWN. If so indicated on the Service Order, Client shall lease
the Hardware on a "rent to own" plan. In such event, all of the terms and
conditions in Section 4.3 shall apply, and the following terms and conditions
shall also apply. At the end of the term of the Service Order, providing Client
is not in breach of this Agreement, Client shall have the option to purchase the
Hardware. The purchase price shall be as indicated on the Service Order. Upon
payment by Client of the purchase price, title of the Hardware shall pass to
Client at the Space. Unless the Service Order is extended by mutual Agreement,
Client shall immediately delete, or shall allow GlobalCenter to delete all
copies of the Software and associated documentation owned by GlobalCenter or any
other materials of GlobalCenter, resident on the Hardware.
5. SPACE
5.1. REPRESENTATION AND WARRANTY. GlobalCenter represents and warrants that
(i) it has obtained all necessary approvals to license the use of the Space to
Client and to allow Client to occupy and have access to the Space for the
purpose of receiving the Services set forth in any applicable Service Order,
(ii) it has the authority to grant Client a royalty-free, non-transferable,
non-exclusive license to occupy and have access to the Space, and that the grant
of such license shall not constitute a violation of the lease, and (iii) the
Space shall conform with the Service Specifications set forth in this Agreement
or any Service Order.
5.2. LICENSE TO OCCUPY. GlobalCenter grants to Client a non-exclusive
license to occupy the Space. Client acknowledges that it has been granted only a
license to occupy the Space and that it has not been granted any real property
interest in the Space.
5.3. MATERIAL AND CHANGES. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space
including, without limitation, any material alteration to cabling or power
supplies for the Hardware, without obtaining GlobalCenter's prior written
approval. Alternatively, Client may request GlobalCenter to perform the work.
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, so long as the rates are commercially reasonable. Client agrees not to
erect any signs or devices to the exterior portion (or visible on the exterior)
portion of the Space without submitting the request to GlobalCenter and
obtaining GlobalCenter's prior written approval.
5.4. DAMAGE. Client agrees to reimburse GlobalCenter, for all reasonable
repair or restoration costs associated with damage or destruction in the Space
caused by the negligence or willful misconduct of Client or Client's personnel,
Client's agents, Client's suppliers/contractors, or Client's visitors to the
Space or as a consequence of Client's installation and/or removal of the
Hardware or property installed in the Space, provided that Client shall not be
liable for any damage or destruction occurring from or out of any negligent act
or omission of GlobalCenter, its officers, directors, agents and employees.
5.5. INSURANCE. Unless otherwise agreed, Client agrees to maintain, at
Client's expense, for each Space, (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 Insurance in an amount not less than that prescribed by
statutory limits. Upon reasonable request of GlobalCenter, Client shall furnish
GlobalCenter with certificates of insurance, which evidence these minimum levels
of insurance.
5.6. REGULATIONS. Client shall use its best efforts to comply with and not
violate GlobalCenter's Safety, Health and Operation Rules and regulations
relating to use of it's premises and facilities, so long as those regulations
are provided to Client in writing. Client's failure to comply with
GlobalCenter's rules and regulations shall constitute a material default under
this Agreement. GlobalCenter may, in its sole discretion, limit Client's access
to a reasonable number of authorized Client employees or designees. Client shall
not interfere with any other clients of GlobalCenter or such other clients' use
of the Space.
5.7. RELOCATION. If it becomes necessary to relocate the Hardware or
Client's equipment to another space within the applicable facility, Client shall
cooperate with GlobalCenter in connection with such relocation provided that
such relocation is based upon (i) the reasonable business needs of GlobalCenter
or another client in such facility or (ii) an increase in Client's space
requirements. GlobalCenter shall bear its own costs in connection with any such
relocation and will use all reasonable efforts, in cooperation with Client, to
avoid any interruption to the Services.
5.8. USE OF GLOBALCENTER SERVICES. Client shall neither (i) resell any
Services, or any portion thereof, to any third party nor (ii) connect any
Hardware or other Client equipment in any GlobalCenter facility directly to any
equipment other than the GlobalCenter network or other GlobalCenter equipment,
without GlobalCenter's prior written consent.
5.9. DISCLAIMER. Except as expressly stated herein, GlobalCenter does not
make any representation or warranty as to the fitness of the Space for Client's
use.
6. SERVICE LEVEL WARRANTIES
6.1. 99.5% NETWORK UPTIME GUARANTEE. In the event of Network Downtime (as
defined below), the monthly fee payable for the Bandwidth, as set forth in the
Service Order, shall be reduced (in the form of a credit on the following
month's invoice) as follows:
6.1.1. if the total Network Downtime in the calendar month is more than
three and six-tenths (3.6) hours, but does not exceed seven and two-tenths (7.2)
hours, the monthly Bandwidth fee for that month shall be reduced by ten percent
(10%);
6.1.2. if the total Network Downtime in the calendar month is
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more than seven and two-tenths (7.2) hours, but does not exceed ten and
eight-tenths (10.8) hours, the monthly Bandwidth fee for that month shall be
reduced by twenty percent (20%); and
6.1.3. if the total Network Downtime in the calendar month is more than ten
and eight tenths (10.8) hours, the monthly Bandwidth fee for that month shall be
reduced by thirty percent (30%).
6.2. NETWORK DOWNTIME DEFINED. For the purposes of this Section, Network
Downtime shall mean any interruption of sixty (60) seconds or more in the
availability of (i) the connection between the Client's equipment and the
GlobalCenter switch fabric or (ii) the internetwork that connects the
GlobalCenter switch fabric with the Internet. For purposes of this Section, the
Internet is deemed to consist of services that commence where GlobalCenter
transmits a Client's content to GlobalCenter's carrier(s) at the GlobalCenter
border router port(s). Such carriers provide GlobalCenter, with private and
dedicated bandwidth. GlobalCenter undertakes no obligation for the circuit or
link between GlobalCenter's facilities and such carrier's services. If router
packet loss is in excess of fifty percent (50%) and is sustained for sixty (60)
seconds or more, GlobalCenter will classify this as an "outage." If an "outage"
continues for a time period of more than two (2) minutes, then such outage will
be deemed Network Downtime. If the latency across the GlobalCenter U.S. IP
backbone exceeds one hundred twenty (120) milliseconds, GlobalCenter will
classify this as Network Downtime. For the avoidance of doubt, Network Downtime
shall not include any interruption, packet loss or latency: (i) caused by
factors outside the reasonable control of GlobalCenter; (ii) resulting, directly
or indirectly, from any act or omissions to act by Client or any third party; or
(iii) resulting from equipment not within GlobalCenter's sole control.
6.3. MAINTENANCE WINDOWS. GlobalCenter reserves three (3) regularly
scheduled maintenance windows per week, of three hour duration, in order to
maintain and upgrade the GlobalCenter 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 Article 6. GlobalCenter shall make all commercially reasonable efforts
to provide the client with prior notification of all scheduled and emergency
maintenance procedures.
6.4. 100% FACILITY UPTIME GUARANTEE. In the event of Facility Downtime
(as defined below), the monthly fee payable for the Space, as set forth in the
applicable Service Order, shall be reduced (in the form of a credit on the
following month's invoice) as follows:
6.4.1. If the total Facility Downtime in the calendar month is less than, or
equal to four minutes and thirty-two seconds (4.32) the monthly fee for that
Space 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 fee for that Space for that
month shall be reduced by two-thirds (66.6%).
6.4.3. FACILITY DOWNTIME DEFINED. For the purposes of this Section, Facility
Downtime shall mean any service interruption, only if such interruption is
either due to a facility power failure or environmental control failure. For the
avoidance of doubt, Facility Downtime shall not include any service
interruption: (i) caused by factors outside the reasonable control of
GlobalCenter; (ii) resulting, directly or indirectly, from any acts or omissions
to act by Client or any third party; or (iii) resulting from equipment not
within GlobalCenter's sole control.
6.5. INVESTIGATION OF SERVICE INTERRUPTIONS. At Client's request,
GlobalCenter will investigate any report of Downtime, and attempt to remedy any
Downtime expeditiously. If GlobalCenter reasonably determines that all
facilities, systems and equipment furnished by GlobalCenter are functioning
properly, and that Downtime arose from some other cause, GlobalCenter can
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 GlobalCenter to clients in the
same locality.
6.6. TERMINATION. Subject to the following sentence, 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) or more hours. In order to terminate a Service
Order pursuant to this Section 6.6, within five days from the date Client is
eligible to terminate in accordance with the preceding sentence, Client must
notify GlobalCenter, in writing, of its election to do so.
6.7. REQUEST FOR FEE REDUCTION. In order to receive any of the fee
reductions set forth in this Article 6, Client must notify GlobalCenter, in
writing, within ten (10) days from the time Client becomes eligible to receive
any such reduction. Client's failure to timely notify GlobalCenter shall result
in the forfeit of Client's right to receive any such fee reduction.
6.8. SOLE REMEDY. The terms and conditions of this Article 6 shall be
Client's sole remedy and GlobalCenter's sole obligation for any Downtime. For
the avoidance of doubt, the warranties set forth in this Article 6 shall not
apply to any Service other than Bandwidth and Space and shall not apply to
performance issues (i) caused by factors outside the reasonable control of
GlobalCenter; (ii) resulting, directly or indirectly, from any acts or omissions
to act by Client or any third party; or (iii) that resulted from Client's or
third party equipment not within GlobalCenter's sole control. As used in this
Article 6, the term "Downtime", when not immediately preceded by either
"Facility" or "Network", shall mean either Network Downtime or Facility
Downtime.
7. USE
7.1. 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, warrants and covenants that
it and any User will not use the services (i) 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 (ii) 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, violating the Acceptable Use Policy, propagation of computer worms
and viruses, and using the network to make unauthorized entry to any other
machine accessible via the network. If GlobalCenter has reasonable grounds to
believe that Client or a User is utilizing the Services for any such improper
purpose, GlobalCenter may suspend or terminate Services immediately upon notice
to Client. Client shall defend, indemnify, hold harmless 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.
7.2. ACCEPTABLE USE POLICY. All GlobalCenter clients are responsible for
reviewing and complying with the GlobalCenter Acceptable Use Policy (the
"Acceptable Use Policy"). GlobalCenter's clients who provide services to their
own users must take steps to ensure compliance by their users with this
Acceptable Use Policy. The Acceptable Use Policy is subject to change, without
notice, by publication at xxxx://xxx.xxxxxxxxxxxx.xxx/xxx. Clients are
responsible for monitoring this web site for changes.
8. PRICING AND PAYMENT TERMS
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8.1. PAYMENT TERMS. Client shall pay the fees set forth in any Service
Order according to the terms set forth herein and therein. Client agrees to pay
a late charge of two percent (2%) above the prime rate 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
GlobalCenter's issuance of an invoice.
8.2. LATE PAYMENTS. In the event of non-payment by Client of sums over-due
hereunder for more than forty-five (45) days, GlobalCenter may upon written
notice to Client either retain any equipment or other assets of Client then in
GlobalCenter's possession and sell them in partial satisfaction of such unpaid
sums, or request Client to remove equipment from GlobalCenter's premises within
ten (10) days. If Client fails to so remove, GlobalCenter may 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.
8.3. PRICE INCREASES. Notwithstanding anything to the contrary set forth
herein, GlobalCenter shall not increase the prices for services during the
Initial Term of any Service Order, but may thereafter increase prices upon sixty
(60) days' written notice to Client.
9. MAINTENANCE AND SUPPORT
9.1. SUPPORT. GlobalCenter shall provide Client with maintenance and support
of any Software and Hardware ("Maintenance and Support") as specified herein.
9.2. EXCLUSIONS. Maintenance and Support shall not include services for
problems arising out of (a) modification, alteration or addition or attempted
modification, alteration or addition of the Hardware or Software undertaken by
persons other than GlobalCenter or GlobalCenter's authorized representatives or
(b) programs or hardware supplied by Client.
9.3. CLIENT DUTIES. Client shall document and promptly report all errors or
malfunctions of the Hardware or Software to 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 GlobalCenter. Client shall maintain a current backup copy of all programs
and data. Client shall properly train its personnel in the use and application
of the Hardware and Software.
10. TERM AND TERMINATION
10.1. TERM. The term of this Agreement shall commence on the Effective Date
and continue indefinitely unless terminated in accordance with this Section 10
or the provisions contained in Section 7.1. The initial term of each Service
Order shall be as indicated therein (the "Initial Term") and each Service Order
shall automatically renew for successive additional terms equal to the period of
the Initial Term unless either party notifies the other, in writing, not less
than thirty (30) days prior to the end of any term that it has elected to
terminate a Service Order, in which case such Service Order and the Service
contained therein shall terminate at the end of the applicable term.
10.2. 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.
10.3. TERMINATION UPON INSOLVENCY. This Agreement shall terminate, effective
upon delivery of written notice by a party, (i) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debts of the other party; (ii) upon the making of an
assignment for the benefit of creditors by the other party; or (iii) upon the
dissolution of the other party.
10.4. EFFECT OF TERMINATION. The provisions of Sections 1, 2.3, 3.2, 3.4, 7,
10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. 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.
11. CONFIDENTIAL INFORMATION
All information identified disclosed by either party ("Disclosing Party") to the
other party ("Receiving Party"), if disclosed in writing, labeled as proprietary
or confidential, or if disclosed orally, reduced to writing within thirty (30)
days and labeled as proprietary or confidential ("Confidential Information")
shall remain the sole property of Disclosing Party. Except for the specific
rights granted by this Agreement, Receiving Party shall not use any Confidential
Information of Disclosing Party for its own account. Receiving Party shall use
the highest commercially reasonable degree of care to protect Disclosing Party's
Confidential Information. Receiving Party shall not disclose Confidential
Information to any third party without the express written consent of Disclosing
Party (except solely for Receiving Party's internal business needs, to employees
or consultants who are bound by a written Agreement with Receiving Party to
maintain the confidentiality of such Confidential Information in a manner
consistent with this Agreement). Confidential Information shall exclude
information (i) available to the public other than by a breach of this
Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving Party
without access to Confidential Information; (iv) known to Receiving Party at the
time of disclosure; or (v) produced in compliance with applicable law or a court
order, provided Disclosing Party is given reasonable notice of such law or order
and an opportunity to attempt to preclude or limit such production. Subject to
the above, Receiving Party agrees to cease using any and all materials embodying
Confidential Information, and to promptly return such materials to Disclosing
Party upon request.
12. LIMITATION OF LIABILITY
GLOBALCENTER.'S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO GLOBALCENTER. UNDER THIS
AGREEMENT. IN NO EVENT SHALL GLOBALCENTER BE LIABLE FOR ANY LOSS OF DATA, LOSS
OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, 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 GLOBALCENTER. HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY
OF SUCH DAMAGES.
13. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE STATED HEREIN, GLOBALCENTER. SPECIFICALLY DISCLAIMS ALL
WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY GLOBALCENTER. HEREUNDER.
14. MISCELLANEOUS
14.1. INDEPENDENT CONTRACTOR. The relationship of GlobalCenter. and Client
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to (i) give either party the
power to direct and control the day-to-day activities of the other; (ii)
constitute the parties as partners, joint ventures, co-owners or otherwise as
participants in a joint
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undertaking; or (iii) allow either party to create or assume any obligation on
behalf of the other party for any purpose whatsoever.
14.2. 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 three (3) days after it has been sent, 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.
14.3. ASSIGNMENT. Other than GlobalCenter's right to assign this Agreement
to any present or future affiliated company, neither party may assign this
Agreement, in whole or in part, without express written consent of the other
party, and any attempt to do so shall be a material default of this Agreement
and shall be void.
14.4. GOVERNING LAW. 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.
14.5. ENTIRE AGREEMENT AND WAIVER. This Agreement, including all
appendices, attachments and Service Orders, shall constitute the entire
Agreement between GlobalCenter. and Client with respect to the subject matter
hereof and all prior Agreements, representations, and statement with respect to
such subject matter are superseded hereby. This Agreement may be changed only by
written Agreement signed by both GlobalCenter. and Client. No failure of either
party to exercise or enforce any of its rights under this Agreement shall act as
a waiver of subsequent breaches; and the waiver of any breach shall not act as a
waiver of subsequent breaches.
14.6. SEVERABILITY. In the event any provision of this Agreement is held by
a court of other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect.
14.7. NON-SOLICITATION. During the term of this Agreement and for a period of
one (1) year thereafter, Client shall not directly solicit, nor directly attempt
to solicit the services, of any employee or subcontractor of GlobalCenter.
without the prior written consent of the other party.
14.8. SUBSTITUTION. GlobalCenter. may substitute, change or modify the
Software or Hardware at any time, but shall not thereby alter the technical
parameters of the Services.
BY
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TITLE
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DATE
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CLIENT:
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BY
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TITLE
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DATE
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GLOBALCENTER INC.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
VERSION 5.01.00 Page 5 of 6
CONFIDENTIAL - GLOBALCENTER PROPRIETARY INFORMATION
6
SERVICE SPECIFICATION
COLLOCATION SERVICE
GlobalCenter. will provide a level of service, which includes the following
features and options:
GENERAL FEATURES
MAINTENANCE OF THE SPACE (INCLUDING JANITORIAL SERVICES):
In connection with the Space made available hereunder, GlobalCenter. or its
landlord shall perform services that support the overall operation of each Space
at no additional charge to Client. Those services include the following:
- Janitorial Services
- 24 x 7 Access to the Space
- Authorized Security System Access to Raised Floor Collocation Space
- Primary A/C 110 volt Power to the Space
- Backup Power- UPS Systems & Battery Plant (30 - 60 minute
survivability objective)
- Generator Back-up (Sustained backup power)
- HVAC Systems for facility air conditioning
- Fire Control Systems
- Network Monitoring Systems
- Redundant Network Connectivity and Hardware
- 19" Rack Spaces for installation of Hardware
- Custom configurations of space to accommodate cabinets
- Lockable private caged customer areas
- 10-base-T or 100-base-T switched port with direct high speed Internet
backbone connection.
24X7 NOC SUPPORT: Will provide proactive site monitoring with ExpressLane(TM)
statistics on Client information base; including bandwidth usage, statistics and
network availability reporting, host monitoring and management interface, access
to GlobalCenter. incident tracking system to expedite fault resolution and
remote server reboot.
ESCALATION PLAN AND PROCEDURES: To be provided by GlobalCenter. in the Welcome
Package 5-10 days after the contract is signed.
RIGHT-OF-WAY AND ACCESS
GlobalCenter. will allow 24 x 7 access and right-of-way to Client Hardware
located in GlobalCenter. facility at no charge. Clients will be escorted at all
times while in the facility. Access to the facilities will not be unreasonably
withheld by GlobalCenter. to Clients for performing appropriate procedures and
maintenance of Hardware, facilities, and systems.
VERSION 5.01.00 Page 6 of 6
CONFIDENTIAL - GLOBALCENTER PROPRIETARY INFORMATION
[LOGO] GLOBALCENTER Complex Hosting Service Order
Service Order Term: 13 MONTHS
Use with MSA # 2.17
Service Order Date: 8/17/00
Estimated Install Date: 9/1/00
Billing Date: 10/1/00
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
CUSTOMER DATA INFOCURE GLOBALCENTER SALES DATA
------------------------------------------------------------------------------------------------------------------
Primary Contact: Xxxx Xxxxx Salesperson: Xxxxxx Xxxxxx/Xxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------
Billing Address: 0000 Xxxxxxxxxx Xxxxxxx Address: GlobalCenter Inc. 000 Xxxxxxx Xxxxxxx
Xxxxx 00x Xxxxxxx, XX. 00000
Xxxxxxx, XX. 00000
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Phone: 781-762-6900 ext. 6001 Phone: 000.000.0000
Fax: Fax:
Email: xxxxxx@xxxxxxxxxx.xxx Pager:
Email:
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Technical or Secondary Contact: Sales Engineer:
Phone: Phone:
Email: Email:
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-------------------------------------------------------------------------------
COMPLEX WEB HOSTING - ONE TIME INSTALLATION FEES:
-----------------------------------------------------------------------------------------------------------------------------
Item # Description Qty. Unit Price Total
-----------------------------------------------------------------------------------------------------------------------------
PORT INSTALLATION:
1 SWITCH PORTS
100 MBPS FAST ETHERNET PORT (ISL/PRIVATE VLAN) $1,500
1 GBPS MULTI-MODE FIBER OPTIC PORT (ISL/PRIVATE VLAN) $10,000 2 $1500 $3000
ROUTER PORTS
100 MBPS FAST ETHERNET PORT $15,000
1 GBPS MULTI-MODE FIBER OPTIC PORT $75,000
-----------------------------------------------------------------------------------------------------------------------------
ADDITIONAL POWER CIRCUIT: ONE (1) 20 AMP CIRCUIT AND POWER STRIP IS $175
2 PROVIDED WITH EVERY RACK. THE POWER STRIP HAS 10 OUTLETS FEEDING INTO 1 CIRCUIT.
MAXIMUM POWER USAGE PER POWER STRIP IS 20 AMPS. OTHER POWER OPTIONS AVAILABLE
BY QUOTE. Includes labor
-----------------------------------------------------------------------------------------------------------------------------
3 CO-LOCATION INSTALLATION: SETUP OF RACKS OR CAGES IN THE DATA CENTER FACILITIES.
2 19" X 8' RACKS
2 $1000 $2000
-----------------------------------------------------------------------------------------------------------------------------
4 TECHNICAL ACCOUNT MANAGER (TAM) TIME
Minimum 2 hours installation includes IP address allocation, standard 6 hrs $200/per hour
monitoring procedure setup, Express Control and Remedy setup, hardware and $1200
software installation and setup. NOTE: $300 Per Hour for all installations
occurring during non-standard business hours
(8AM-6PM Monday through Friday) and/or less than 72 Hours notification.
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COMPLEX WEB HOSTING - ONE TIME FEES TOTAL $6200
-----------------------------------------------------------------------------------------------------------------------------
The information (data) contained in this Service Order is confidential and
proprietary information, and contains trade secrets and other privileged
information. It is furnished to the Buyer in confidence and upon the condition
that it be used only for internal evaluation purposes, and not divulged or
disclosed to third parties without the written consent of GlobalCenter. GC
Complex Web Hosting SO/Quote Ver 5 Rev. 2 February 2000
[LOGO] GLOBALCENTER Complex Hosting Service Order
Service Order Term: 13 MONTHS
Use with MSA # 2.17
Service Order Date: 8/17/00
Estimated Install Date: 9/1/00
Billing Date: 10/1/00
-----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
COMPLEX WEB HOSTING - MONTHLY RECURRING FEES:
-----------------------------------------------------------------------------------------------------------------------------
Item # Description Qty. Unit Price Total
-----------------------------------------------------------------------------------------------------------------------------
1A COMMITTED BANDWIDTH: 1meg $1000 $1000
Dedicated access/bandwidth to the GlobalCenter backbone and
Interconnections, priced per Mbps (2 Mbps minimum)
-----------------------------------------------------------------------------------------------------------------------------
1B BURSTABLE BANDWIDTH: Variable 15% Above
Committed
Bandwidth
Bandwidth above the committed Mbps level, determined and billed
via the 95th Percentile Rule (See Below).
-----------------------------------------------------------------------------------------------------------------------------
2 ADDITIONAL POWER CIRCUITS: EACH ADDITIONAL 10 OUTLET POWER STRIP AND 20 0 $250
AMPS CIRCUIT
-----------------------------------------------------------------------------------------------------------------------------
3 CO-LOCATION SERVICES: MONTHLY RENTAL OF SECURE SPACE IN A DATA CENTER 2 $1000 $2000
FACILITY.
TWO 19" X 8' RACKS
-----------------------------------------------------------------------------------------------------------------------------
TECHNICAL ACCOUNT MANAGER (TAM) CONSULTING TIME: 15 HOURS
4 COMMITTED TIME FOR 0 - 9 HOURS $200/HR A MONTH $2625
COMMITTED TIME FOR 10 - 40 HOURS $175/HR $175/
COMMITTED TIME FOR OVER 40 HOURS $150/HR Per Hour
NON-CONTRACTED TIME - $200/HR
NON-CONTRACTED TIME IS UTILIZED IN 1-HOUR TIME BLOCKS.
EMERGENCY RATE - $100/HOUR OVER THE CURRENT RATE. BILLED IN 2-HOUR BLOCKS.
EMERGENCY TIME (6 PM-8AM LOCAL TIME, MONDAY THROUGH FRIDAY, WEEKENDS AND
HOLIDAYS).
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COMPLEX WEB HOSTING - MONTHLY RECURRING FEES TOTAL $5625
-----------------------------------------------------------------------------------------------------------------------------
ADDITIONAL HOSTING SERVICES - ONE TIME INSTALLATION FEES:
HSRP - ONE TIME INSTALLATION FEE
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Item Description Qty. Unit Price Total
#
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HSRP (HOT STANDBY ROUTER PROTOCOL)
Includes the assignment and maintenance of router standby groups. 0 $3,500 $3500
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HSRP ONE TIME INSTALLATION FEE TOTAL $3500
-----------------------------------------------------------------------------------------------------------------------------
The information (data) contained in this Service Order is confidential and
proprietary information, and contains trade secrets and other privileged
information. It is furnished to the Buyer in confidence and upon the condition
that it be used only for internal evaluation purposes, and not divulged or
disclosed to third parties without the written consent of GlobalCenter. GC
Complex Web Hosting SO/Quote Ver 5 Rev. 2 February 2000
[LOGO] GLOBALCENTER Complex Hosting Service Order
Service Order Term: 13 MONTHS
Use with MSA # 2.17
Service Order Date: 8/17/00
Estimated Install Date: 9/1/00
Billing Date: 10/1/00
------------------------------------------------------------------------------------------------------------------
TERMS AND CONDITIONS:
1. Monthly recurring charges for space, power and professional services
commence upon the date of receipt of equipment by GlobalCenter into the
space, or 30 days from the execution of this Service Order, whichever
occurs first.
2. Monthly recurring charges for bandwidth commence upon the date of
connection of client equipment to the GlobalCenter backbone, or 45 days
from the execution of this Service Order, whichever occurs first.
-------------------------------------------------------------------------------
95TH PERCENTILE RULE
Clients are billed monthly for the committed bandwidth. GlobalCenter monitors
SNMP bandwidth and takes a data point reflecting bandwidth utilization at that
particular instance on the client's Internet connection(s) every 5 minutes, then
averages every 30 minutes for a billing period of one month. At the end of the
month, all the data samples are collected then sorted from highest to lowest and
the top 5% are discarded. The next highest data sample will then be referred to
as the "95th Percentile" number. This number will then be used as the basis in
computing the additional (burst) bandwidth amount for that particular month over
the committed bandwidth already purchased.
All Service Orders are subject to a GlobalCenter Master Service Agreement. This
Service Order serves as a Purchase Order when signed by authorized
representatives of client and GlobalCenter. Please send or FAX signed Service
Order to the above GlobalCenter address. This service order pricing is valid and
may be accepted for 30 days.
For Client:
Accepted by: /s/ Xxxxxxx Xxxxx
-------------------------------------------------
Printed Name: Xxxxxxx Xxxxx Title: Vice President--
------------------------------------------------- ---------------------------
PO #: Date: September 13, 2000
------------------------------------------------- ---------------------------
For GlobalCenter:
Accepted by: /s/ Xxxx X. Xxxxxx Date: September 13, 2000
------------------------------------------------- ---------------------------
Printed Name: Xxxx X. Xxxxxx Title: Regional Vice President
------------------------------------------------- ---------------------------
The information (data) contained in this Service Order is confidential and
proprietary information, and contains trade secrets and other privileged
information. It is furnished to the Buyer in confidence and upon the condition
that it be used only for internal evaluation purposes, and not divulged or
disclosed to third parties without the written consent of GlobalCenter. GC
Complex Web Hosting SO/Quote Ver 5 Rev. 2 February 2000
