[GTE INTERNETWORKING LOGO] MASTER AGREEMENT FOR
INTERNETWORKING SERIVCES
This Master Agreement between GTE Internetworking Incorporated ("we") and the
Customer Identified below ("you") includes the attached Service Schedules and
Service Quotations (collectively "Schedules") together with any additional
Schedules mutually agreed in writing in the future.
1. SERVICES. We will provide you the Internetworking services ("Services")
specified in the Schedule(s). Our commencement of providing any of the
Services shall constitute our acceptance of this Master Agreement.
2. PRICES. Prices are stated in the Schedules and are guaranteed for the Term
stated in the Schedules. If any of the Services are on a month-to-month
basis, we will give you at least 30 days notice of a price change. In
addition, you are responsible for applicable taxes, tariffs,
telecommunications surcharges or other governmental charges due on account of
the Services.
3. PAYMENT. Unless otherwise stated in a Schedule, we will invoice you
monthly. You agree to pay within 30 days from receipt of invoice. For overdue
invoices, you will pay interest of 1.5% for each month or part of a month (or
the maximum allowed by law, whichever is less).
4. OUR RESPONSIBILITY. We are responsible for providing the Services by
qualified personnel in a professional manner. WE DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
5. YOUR RESPONSIBILITY. You are responsible for the manner in which you use
the Services, including the maintenance and security of your data, computer
network and other facilities; your choice of equipment, software and online
content and all other matters related to how you use the Services. Unless
expressly permitted by a Schedule or separate reseller agreement with us, you
shall not resell Services, or access to Services, directly or indirectly to
third parties.
6. INDEMNIFICATION. We will indemnify you for damages, costs and attorneys
fees you incur from any claim that our design of the Services infringes any
U.S. patent, copyright, trademark, trade secret or other intellectual property
right. You will indemnify us for damages, costs and attorneys fees we incur
from any claim arising from your manner of using of the Services, your
combination of the Services with other products or services not provided by
us, or your modification of the Services. The indemnifying party shall conduct
the defense and shall have control of the litigation; the other party shall
give prompt notice of claims and shall cooperate in defending against the
claim. THE PARTIES DISCLAIM THE IMPLIED WARRANTY OF NON-INFRINGEMENT, RELYING
INSTEAD ON THE TERMS OF THIS SECTION.
7. IP ADDRESSES. Upon expiration, cancellations or termination of the
Agreement or applicable Schedule, you shall relinquish any IP addresses or
address blocks assigned to you by us.
8. ACKNOWLEDGEMENT. You agree that we may include your name in listings of
our customers.
9. COMPLIANCE WITH LAWS. You shall not use or permit your end users to use
the Services in ways that violate the laws or our acceptable use policy which
is published on our web site at xxxx://xxx.xxx.xxx/xxx/, infringe the rights
of others, or interfere with users of our network or other networks. For
example, you shall not distribute chain letters or unsolicited bulk
electronic mail ("spamming"); propagate computer worms or viruses; use a
false identity; attempt to gain unauthorized entry to any site or network;
distribute child pornography, obscenity or defamatory material over the
Internet; or infringe copyrights, trademarks or other intellectual property
rights. You further agree to comply with U.S. export laws concerning the
transmission of technical data and other regulated materials via the Services.
10. TERMINATION. Either party may terminate or cancel this Agreement if the
other fails to cure a material breach of the Agreement within 30 days after
receiving written notice of the breach. We reserve the right, but assume no
obligation to suspend performance immediately if you are more than 30 days
overdue in payments or if, in our reasonable judgment, you have violated
Section 9.
11. LIMITATION OF LIABILITY. EXCEPT FOR (A) INDEMNIFICATIONS PURSUANT TO
SECTION 6, (B) BREACH OF ANY CONFIDENTIALITY OBLIGATIONS STATED IN A SERVICE
SCHEDULE, AND (C) BREACHES BY YOU OF LICENSE TERMS APPLICABLE TO GTE-PROVIDED
SOFTWARE, NEITHER PARTY (NOR ITS SUPPLIERS OR CUSTOMERS) SHALL BE LIABLE TO
THE OTHER PARTY FOR PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF DAMAGE TO DATA
ARISING OUT OF THE USE OR INABILITY TO USE SERVICES, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. LIMITATION OF DAMAGES. OUR AGGREGATE LIABILITY TO YOU RELATING TO OR
ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL
NOT EXCEED (a) THE TOTAL AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN
QUESTION, DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH
GAVE RISE TO YOUR CLAIMS OR (b) $100,000, WHICHEVER IS LESS.
13. MISCELLANEOUS. The terms and conditions of this Agreement supersede all
previous agreements, proposals or representations related to the Services.
Except for assignments to GTE affiliates, neither party may assign this
Agreement without the prior written consent of the other party. This
Agreement shall be governed by the substantive laws of the Commonwealth of
Massachusetts. Any changes to this Agreement, or any additional or different
terms in your purchase orders, acknowledgments or other documents, will not
be effective unless expressly agreed to in writing by us.
PLEASE SIGN BELOW TO INDICATE YOUR UNDERSTANDING AND ACCEPTANCE
OF THE TERMS OF THIS AGREEMENT.
COMPANY (TYPE OR PRINT FULL CUSTOMER NAME): NETZERO,INC.
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SIGNATURE: /s/ Xxxxxx Xxxx DATE: 10/13/98
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PRINT NAME: XXXXXX XXXX TITLE: CEO
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[GTE INTERNETWORKING LOGO] SERVICE SCHEDULE
DIALINX SERVICE (DOMESTIC)
This Service Schedule is part of and is governed by the Master Agreement for
Internetworking Services ("Master Agreement"). The terms and conditions of
the Master Agreement are incorporated herein by reference.
1. COVERED SERVICES. We will provide you with the DiaLinx-TM- Basic Services
and Enhanced Services ("DiaLinx Service") indicated in the applicable GTE
Internetworking Services Quotation ("Quotation") which is attached hereto or
which we may provide to you in the future for additional DiaLinx Service. The
term of the Service Period is one year or longer, as selected by you, and the
corresponding fees are described in the Quotation. Our commencement of
providing DiaLinx Services to you under the Quotations shall constitute our
acceptance of the Agreement in respect of such DiaLinx Service.
2. SERVICE DESCRIPTION. DiaLinx Service provides you with dial-up Internet
access service. further details of the DiaLinx Service are set forth in the
applicable Service Description. Service Descriptions are available from your
GTE sales representative.
3. RENEWAL. We encourage you to contact us, via email to:
xxxxx@xxxxxxxxx.xxx prior to the expiration of the then-current Service
Period to renew the DiaLinx Service for an additional term of one (1) year or
greater. If the Service Period expires before it has been renewed in
writing, then we may continue to provide you with the DiaLinx Service on a
month-to-month basis, at our then-current undiscounted list prices, until the
Service Period has been renewed in writing.
4. MINIMUM CUSTOMER COMMITMENT. You agree to the Minimum Customer
Commitment(s) for DiaLinx Service set forth in the Quotation. You agree that
you are obligated to pay the full amount due for the Minimum Customer
Commitment even if your actual usage is less than the Minimum Customer
Commitment.
5. THIRD PARTY ACCESS. Subject to the terms and conditions of this Service
Schedule, you have the non-exclusive right to authorize access to DiaLinx
Services to your employees and/or to any third party (including the right to
sell such DiaLinx Services). You agree that if you offer DiaLinx Service
other than to your bona fide employees, you will do so only pursuant to a
binding agreement incorporating terms substantially similar to those stated
in Section 10 (Mandatory Flow-down Terms) of this Service Schedule.
6. RESPONSIBILITY FOR END USERS. You agree to be responsible for all billing
and collection from end users and that you will pay us on a timely basis,
regardless of whether you collect payment from end users. You agree to be
responsible for all communications to and business relations with end users.
You shall be responsible for providing all technical and business support
related to DiaLinx Services access for end users, including but not limited
to responding to inquiries and questions, hot-line support, problem
resolution, providing system configuration, installation and support, as
applicable and other such services and shall maintain an organization which
is highly trained and qualified to provide such support. You are responsible
for authenticating and authorizing access by your end users to DiaLinx
Services. Unless you have purchased optional RADIUS hosting services from us,
you shall install, operate, and maintain a dedicated RADIUS server meeting
the RADIUS specifications published in Internet RFC 2138 and all published
derivative RFC's. Our RADIUS server will prompt each end user for the end
user's identification and password, and poll your RADIUS server for access
information. Unless otherwise provided for in the Quotation, we will support
only one authentication realm (e.g. xxxxxxxxxxx.xxx).
7. EQUIPMENT AND TELEPHONE SERVICE. You are solely responsible for
obtaining and providing the telephone services and user modems necessary to
access DiaLinx Services. In no event will we be responsible for and user
telephone charges.
8. NETWORK ACCESS AVAILABILITY. ACCESS TO THE DIALINX NETWORK CANNOT BE
GUARANTEED TO YOU OR YOUR END USERS. END USERS MAY BE UNABLE TO ACCESS THE
DIALINX SERVICE AT ANY TIME, AND DISCONNECTIONS MAY OCCUR FROM TIME TO TIME.
YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU OR YOUR END
USERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE DIALINX
SERVICES. END USERS MAY BE AUTOMATICALLY DISCONNECTED FROM THE NETWORK AFTER
30 MINUTES OF INACTIVITY. THIS DISCLAIMER IS IN ADDITION TO, NOT INSTEAD OF,
THE DISCLAIMER, LIMITATION OF LIABILITY AND LIMITATION OF DAMAGES CONTAINED
IN THE MASTER AGREEMENT.
9. REGULATORY CHANGES. We shall flow through to you any local exchange
carrier (LEC) price changes (i) that are attributable to changes in Federal
or state regulation, or (ii) for Federally regulated services, that are
treated as exogenous regulatory cost changes by the Federal Communications
Commission (the "FCC") under its price caps regulations as defined in the FCC
Rules, 47 C.F.R. Section 61.45. For purposes of this paragraph, price changes
attributable to changes in regulation include, but are not necessarily
limited to, price changes reflecting total or partial elimination of any
enhanced services provide exemption from payment of interexchange access
charges or any regulatory decision which results in application of multiple
Subscriber Line Charges to ISDN Primary Rate interface circuits or
channelized TI circuits.
10. ACCEPTABLE USE. You agree to use the Dialinx Service in accordance with
our acceptable use policy. Our current acceptable use policy is published on
our web site at xxxx://xxx.xxx.xxx/xxx/
11. COMPLIANCE WITH LAWS. You shall not use or permit your end users to use
the Services in ways that violate laws, infringe the rights of others, or
interfere with users of our network or other networks. For example, you shall
not distribute chain letters or unsolicited bulk electronic mail
("spamming"); propagate computer worms or viruses; use a false identity;
attempt to gain unauthorized entry to any site or network; distribute child
pornography, obscenity or defamatory material over the Internet; or infringe
copyrights, trademarks or other intellectual property rights. You further
agree to comply with U.S. export laws concerning the transmission of
technical data and other regulated materials via the Services.
12. MANDATORY FLOW-DOWN TERMS. You agree to include terms substantially
similar to the following minimum terms in legally binding agreements with end
users who are not your bona fide employees. For the purpose of this section,
"Network Services Supplier" shall mean us, "Company" shall mean you, "User"
shall mean the non-employee end user, and "Network" shall mean the dial-up
network operated and maintained by us in the Territory which is designed to
provide access to the Internet:
NO RIGHT OF RESALE. Use may not resell or redistribute any DiaLinx Services.
[GTE INTERNETWORKING LOGO] SERVICE SCHEDULE
DIALINX SERVICE (DOMESTIC)
CONTENT RESPONSIBILITY. User understands that neither Company nor its Network
Services Supplier is responsible for the content of the transmissions which
may pass through the Network. User agrees that it will NOT use the DiaLinx
Services in ways that violate laws, infringe the rights of others, or
interfere with the users, services, or equipment of other networks.
For example, you shall not distribute unsolicited advertising, chain letters,
or commercial electronic mail ("spamming"); propagate computer worms or
viruses; attempt to gain unauthorized entry to other computers, data or
networks; distribute child pornography, obscenity, or defamatory material
over the Internet; or infringe copyrights, trademarks, or other intellectual
property rights.
WARRANTY AND LIABILITY LIMITATIONS. COMPANY DOES NOT WARRANT THAT THE DIALINX
SERVICES WILL BE AVAILABLE ON A SPECIFIED DATE OR TIME OR THAT THE NETWORK
WILL HAVE THE CAPACITY TO MEET THE DEMAND OF END USERS DURING SPECIFIC HOURS.
USER MAY BE UNABLE TO ACCESS THE NETWORK AT ANY TIME AND DISCONNECTION FROM
THE NETWORK MAY OCCUR FROM TIME TO TIME. USERS MAY BE AUTOMATICALLY
DISCONNECTED FROM THE NETWORK AFTER 30 MINUTES OF INACTIVITY. NEITHER COMPANY
NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO
COMPANY'S OR USER'S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR
UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF USER'S DATA
FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS
OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS
A RESULT OF COMPANY'S OR ITS NETWORK SERVICE SUPPLIER'S NEGLIGENCE IN NO
EVENT WILL COMPANY OR ITS NETWORK SERVICES SUPPLIERS BE LIABLE FOR ANY
DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR
PROFITS, OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE
SERVICES OR PRODUCTS PROVIDED HEREUNDER.
PLEASE SIGN BELOW TO INDICATE YOUR UNDERSTANDING AND ACCEPTANCE
OF THE TERMS OF THIS AGREEMENT.
COMPANY (TYPE OR PRINT FULL CUSTOMER NAME): NETZERO,INC.
-----------------------------
SIGNATURE: /s/ Xxxxxx Xxxx DATE: 10/13/98
----------------------------- ----------------------
PRINT NAME: XXXXXX XXXX TITLE: CEO
----------------------------- ----------------------
