This Service Agreement ("Agreement") is made and entered into by and between
NETIXS Communications and the Customer ("Customer") listed below, and shall take
effect as of the effective date as indicated in the NETIXS Communications
service request form attached.
1. SERVICE DATE. The Service Date shall be the date any NETIXS Communications
Services ordered under this Agreement are first available for use by the
Customer.
2. SERVICE STANDARDS. If customer's service suffers outage of more than ten
(10) consecutive minutes. NETIXS Communications will credit customer for
one day of service. 30 Day Installation Guarantee for Customers within
Standard Service Area. Dedicated Internet Access service and Collocation
is backed by the NETIXS Standard Service Level Agreement that has two
components: a Service Delivery SLA and a Network Performance SLA. Network
Performance Guarantee (all measurements based on monthly average), 99.99%
Port Availability, 99% Packet Delivery Guarantee (for all types of
packets).
3. INITIAL TERM. The Initial Term shall be for 24 months for the Agreement,
beginning on the Service Date.
4. RENEWAL. The Agreement shall renew automatically for additional 12-month
terms unless notification of non-renewal is provided by either party not
less than 30 days prior to the expiration of the Initial Term or renewal
period.
5. CANCELLATION OR TERMINATION. The Agreement is cancelable with a minimum
termination fee 25% of the remaining contract price for the remaining term
of the agreement Payable to NETIXS Communications. Customer will assume all
liability and penalty by any 3rd party telco. The Agreement is cancelable
by Xxxxxx.xxx in the event the above service standards (reference item 2.
Service Standards) are not met, or in the event of multiple outages within
a single day, or multiple outages of a similar nature within a month,
Xxxxxx.xxx shall have the right, at their discretion, to terminate this
contract with 90 days written notice, without penalty or termination fee.
6. PAYMENT. Initial Fees are payable in advance of order. Monthly Fees will be
billed monthly in advance beginning one month from the Service Date.
Payment of Monthly Fees are due upon receipt of invoice, and are delinquent
if not received within 15 days. Any Fees not received 30 days from the date
of invoice are subject to a late charge of 1 1/2% per month.
7. TAXES. Customer agrees to pay any sales, use, gross receipts, excise,
access, bypass or other local, state and Federal taxes or charges, imposed
on or based upon the provision, sale or use of the NETIXS Communications
Services.
8. INTERRUPTION OF SERVICES. Services may be interrupted if any fees remain
unpaid 30 days from date of invoice, or if Customer engages in any conduct
or activities which NETIXS Communications in its responsible discretion
believes violates any of the term of this Agreement.
9. ASSIGNMENT. Customer shall not, without prior written consent of NETIXS
Communications, which shall not be unreasonably withheld, assign, transfer
or in any other manner dispose of, any of its rights, privileges, or
obligations under this Agreement.
10. CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense
undertake all necessary preparations to comply with NETIXS Communications'
installation instructions. If Customer Is not ready to accept NETIXS
Communications Services 30 days after the Planned Service Date, NETIXS
Communications may begin billing Monthly Fees using the Planned Service
Date as the Service Date. Customer is responsible for the use,
compatibility and maintenance of all Customer owned equipment.
11. LETTER OF AGENCY (LOA). Customer hereby authorizes NETIXS Communications to
act on its behalf with the Local Exchange Carriers and others for the
provisioning of local access required as part of the NETIXS Communications
Services. This LOA shall remain in effect until cancellation by Customer in
writing.
12. ACCEPTABLE USE. NETIXS Communications Services may only be used for
lawful purposes. Transmission of any material in violation of any Federal,
state or local regulation is prohibited. This includes without limitation
material protected by trade secret, copyrighted material, and material
legally judged to be threatening or obscene, any access to and use of other
networks connected to NETIXS Communications, including the Internet, must
comply with the rules and behavior guidelines of that network.
13. THE GUARANTEE. In consideration of Customer's commitment to use NETIXS
Communications Service for the specified Term and the monthly Commitment
level, NETIXS Communications agrees to provide the Customer dedicated
Internet or Collocation services for the duration of this Agreement at the
NETIXS Rates in effect on the Effective Date.
14. CIRCUMSTANCES. Under no circumstances shall NETIXS Communications or its
affiliates be liable for any direct, indirect, incidental, special,
punitive or consequential damages that result in any way from the use of
or inability to use NETIXS Communications Services, or Customer's reliance
on or use of information, services or merchandise provided on or via NETIXS
Communications Services, or that result from mistakes, omissions,
interruptions, deletion of files, errors, defects, delays in operation,
or transmission, or failure of performance.
15. INDEMNITY. Customer agrees to defend, indemnify and hold NETIXS
Communications and its affiliates harmless from any and all liabilities,
costs and expenses, including reasonable attorney's fees, settlement
payments and any damages awarded related to or arising from: (1) any
violation of this Agreement by Customer or its affiliates; (2) the use
of NETIXS Communications Services or the placement or transmission of any
message, information, software or other materials on any other network
connected to NETIXS Communications; (3) negligent acts or omissions of
Customer or its in connection with the construction, installation,
maintenance, presence, use or removal of systems, channels, equipment,
or software not provided by NETIXS Communications which are connected or
are to be connected to NETIXS Communications Services; and (4) claims for
infringement arising from the use of equipment and software, apparatus and
systems not provided by NETIXS Communications.
16. DISPUTES. This agreement shall be construed in accordance with the laws of
the state of California. For purposes of Venue and Jurisdiction, this
Agreement shall be deemed made and to be performed in the City of Los
Angeles, CA.
17. ENTIRE AGREEMENT. This Agreement supersedes all prior representations,
agreements and understandings whether oral or implied, and may only be
modified in writing.
AGREED TO AND ACCEPTED:
[ILLEGIBLE] [ILLEGIBLE] 3/3/1999
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