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This Master Services Agreement (this 'Agreement') is entered into as
the 27th day of January, 1998 ('Effective Date') by and between the entity
indicated on the Services Order form attached hereto, with an office at the
address listed on the Services Order Form, ('Client'), and GlobalCenter Inc., a
corporation with offices at 88 Pine Street, New York, New York ('GlobalCenter')
and describes the terms and conditions pursuant to which GlobalCenter shall
license to Client certain Software and provide certain Services (as defined
below).
In consideration of the mutual promises and upon the terms and
conditions set forth below, the parties agree as follows
1. NATURE OF AGREEMENT This is an Agreement for the provision by GlobalCenter of
Internet connectivity services (the 'Bandwidth'), the lease of equipment to
provide such services (the 'Hardware'), the availability of space to store and
operate such Hardware ('Space') and the licensing of software to provide such
Services (the 'Software'), together comprising an Internet connectivity and
collocation package to be provided by GlobalCenter under this Agreement
(together, the 'Services').
2. SERVICE ORDERS
2.1. Orders. Client may issue one or more service orders describing the
Bandwidth, Space, Hardware, and Software that Client desires ('Service Order').
Each Service Order Exhibit I will set forth the prices, initial term of Services
and other information in the form set forth in the Service Order Form. No
Service Order shall be effective until accepted by GlobalCenter. All Service
Orders will be subject to the terms and conditions of this Agreement, and the
terms of this Agreement shall supersede any terms and conditions which may
appear on Client's order form, or purchase order unless GlobalCenter signs such
order and thereby agrees to such amendment, in which event such amendment shall
supersede this agreement.
2.2. Cancellation. In the event that Client cancels or terminates a Service
Order at any time for any reason whatsoever other than expiration of a Service
Order, a Service Interruption (as defined below), or after the first sixty (60)
days of the agreement, Client agrees to pay GlobalCenter a cancellation fee
equaling two (2) months of the Monthly Recurring Charges specified in the
Service Order which shall become due and owing as of the effective date of
cancellation or termination.
2.3. IP Addresses. GlobalCenter may assign on a temporary basis a reasonable
number of Internet Protocol Addresses ('IP Addresses') from the address space
assigned to the GlobalCenter by InterNIC. Client acknowledges that the IP
Addresses are the sole property of GlobalCenter are assigned to Client as part
of the Service, and are not 'portable,' as such term is used by InterNIC.
GlobalCenter reserves the right to change the 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 agrees that it will
have no right to IP Addresses upon termination of this Agreement, and that any
renumbering required of Client after termination shall be the sole
responsibility of Client.
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GlobalCenter acknowledges that GlobalCenter shall have no right in or to any
domain names, unique telephone numbers for access to clients services or similar
properties and in the event that GlobalCenter comes into possession of or has
any interest in such rights, GlobalCenter shall hold such rights as the agent
for and irrevocably assign all such right to Client.
3. SOFTWARE LICENSE AND RIGHTS
3.1. License. During the term of the applicable Service Order, GlobalCenter
grants Client a nontransferable, nonexclusive license to use the Software in
object code form only, solely on the Hardware in conjunction with the Services.
GlobalCenter acknowledges that Client Software shall be operating on the
Hardware and GlobalCenter shall have no right, title or interest thereto.
3.2. Proprietary Rights. This Agreement transfers to neither client nor
GlobalCenter title nor any proprietary or intellectual property rights to the
Software, Hardware, documentation, or any copyrights, patents, or trademarks,
embodied or used in connection therewith, except for the rights expressly
granted herein.
3.3. License Restrictions. 3.4. Client and GlobalCenter agree that it will not
itself, or through any parent, subsidiary, affiliate, agent or other third
party:
3.4.1. copy the Software except as expressly allowed under this Agreement. In
the event Client makes any copies of the Software, Client shall reproduce all
proprietary notices of GlobalCenter on any such copies;
3.4.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive
source code from the Software;
3.4.3. sell, lease, license or sublicense the Software or the documentation;
3.4.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.4.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a `service bureau' basis.
4. HARDWARE TERMS AND CONDITIONS
4.1. Installation. GlobalCenter will use commercially reasonable efforts to
install the Hardware as the Hardware is shipped to GlobalCenter. At Client's
request, GlobalCenter 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. GlobalCenter agrees that the Hardware may reside at the
Space during the term of this agreement and that the Hardware is and shall
remain the property of the Client. GlobalCenter shall not have taken or
attempted to take any right, title or interest therein or permit any third party
to take an interest therein. GlobalCenter will not transfer, sell, assign,
sublicense, pledge or otherwise dispose of, encumber or suffer a lien or
encumbrance upon the Hardware or any interest in the Hardware. GlobalCenter
shall not move the Hardware from the
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facility without Client's prior written permission.
4.3. Lease of Hardware. If so indicated on the Service Order, Client shall lease
the Hardware, and GlobalCenter shall obtain and deliver to the Space the
Hardware. 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 have taken, 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 at the Space. Client
will not move the Hardware from that facility without GlobalCenter's prior
written permission. Client shall be responsible for any damage to the Hardware.
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 in 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, associated documentation, or any other materials of GlobalCenter
resident on the Hardware.
5. SPACE
5.1. License to Occupy. GlobalCenter grants to Client a nonexclusive 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 interests in
the Space.
5.2. Material and Changes. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Hardware, without obtaining
GlobalCenter's prior written approval for Client to have the work performed.
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. Client
agrees not to erect any signs or devices to the exterior portion of the Space
without submitting the request to GlobalCenter and obtaining GlobalCenter's
advance written approval.
5.3. Damage. Client agrees to reimburse GlobalCenter for all reasonable repair
or restoration costs associated with damage or destruction caused by Client's
personnel, Client's agents, Client's suppliers/contractors, or Client's visitors
during the term or as a consequence of Client's removal of the Hardware or
property installed in the Space except for normal wear and tear or based upon
actions taken by GlobalCenter
5.4. Insurance. Unless otherwise agreed. Client agrees to maintain, at Client's
expense, (i) Comprehensive
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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 in an amount not less
than that prescribed by statutory limits. Prior to taking occupancy of the
Collocation Space, Client shall furnish GlobalCenter with certificates of
insurance which evidence the minimum levels of insurance set forth herein.
Client shall also maintain insurance covering Hardware or property owned or
leased by Client against loss or physical damage.
5.5. Regulations. Client shall comply with and not violate all of GlobalCenter's
generally accepted industry standards for safety, health and operational rules
and regulations. Client's failure to comply with GlobalCenter's generally
accepted industry standards for 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.
5.6. Disclaimer. GlobalCenter represents and warrants to Client that (i) the
Space meets the manufacturer's recommendations for the use of the equipment and
(ii) shall meet the specifications set forth in Exhibit 111 hereto. Client
hereby assumes any and all risks associated with Client, its agents or
employees' use of the Space and shall indemnify, defend and hold harmless
GlobalCenter from any and all claims, liabilities, judgments, causes of action,
damages, costs, and expenses (including reasonable attorneys' end experts'
fees), caused by or arising in connection with such use.
6. SERVICE INTERRUPTIONS
6.1. 99% Uptime Guarantee. In the event of Downtime (as defined below), the
monthly fee payable for the Services shall be reduced as follows:
6.1.1. if the total Downtime in the calendar month is more than two (2)
hours, but does not exceed four (4) hours, the monthly fee for that month
shall be reduced by one-third (33.3%);
6.1.2. if the total Downtime in the calendar month is more than four (4)
hours, but does not exceed eight (8) hours, the monthly fee for that month
shall be reduced by two-thirds (66.6%);
If the total Downtime in the calendar month is more than eight (8) hours,
the monthly fee for that month shall be waived.
For the purposes of this Section, Downtime shall mean any interruption of one
(1) minute or more in the availability to users of any Web site residing on the
Hardware and made available through the Services, only if such interruption is
due to either (i) failure by GlobalCenter to manage a server anomaly as agreed
in Exhibit II so as to avoid interruption in Web availability, or (ii) a
disruption in the connection between any such server and the Internet. For
purposes of this Section, the Internet is deemed to consist of services that
commence where GlobalCenter transmits a
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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
excess of seventy percent (70%) and is sustained for sixty (60) seconds or more,
GlobalCenter will classify this an 'outage.' If an 'outage' continues for a time
period of more than two (2) minutes, then such outage will be deemed Downtime.
6.2. Investigation of Service Interruptions. GlobalCenter will investigate any
report of Downtime, and attempt to remedy any Downtime expeditiously.
GlobalCenter reasonably determines that all facilities, systems and equipment
furnished by GlobalCenter are functioning properly, and that Downtime arose from
some other cause, GlobalCenter reserves the right to recover 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.
6.3. Termination. 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) hours or more.
6.4. Sole Remedy. The terms and conditions of this Section 6 shall Client's sole
remedy and GlobalCenter's sole obligation for any Downtime.
7. USER CONTENT GlobalCenter acknowledges that GlobalCenter shall have no right,
title or interest in or to any of the services, any postings, data or
transmission using the services (the 'Content'). 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, 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 illegal or disruptive purpose,
GlobalCenter may suspend or terminate Services immediately upon notice to Client
provided that GlobalCenter shall attempt to give client reasonable notice of
such problem and an opportunity to cure. 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.
8. PRICING AND PAYMENT TERMS
8.1. Payment Terms. Client shall pay the fees set forth in the Services Order
Form according to the terms set forth therein. Client agrees to pay a late
charge of one percent (1%) 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 receipt of
invoice.
8.2. Late Payments. In the event of non-payment by Client of sums over-due
hereunder for more than sixty (60) days, GlobalCenter may upon written notice to
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Client 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. GlobalCenter shall not increase the prices for services
during the initial term of any Service Order. Pricing for additional service is
specified in Exhibit 111.
9. MAINTENANCE AND SUPPORT GlobalCenter shall provide Client with maintenance
and support Software and Hardware, if any ('Maintenance and Support') as
specified in Exhibit 11
9.1. Exclusions. Maintenance and Support shall not include services for problems
arising out of (a) modification, on, alteration on or addition or attempted
modification, alteration or addition of the Hardware or Software undertaken by
persons other than GlobalCenter or GlobalCenter's authorized representatives.
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 terminated in accordance with this Section 10. At the end
of the initial term, the agreement will be automatically extended on month to
month basis and can be canceled by either party with ninety (90) days written
notice.
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 shiny
(30) days following written notice of default. In the event this Agreement is
terminated due to GlobalCenter's breach, GlobalCenter shall refund to Client any
Services fees on a straight line prorated basis.
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 on of the other party.
10.4. Effect of Termination. The provisions of Sections 1, 2.3, 3.2, 3.3, 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
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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, or through access to the services of the
type of information which would normally be deemed to be 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 who or which are actually
working on the project on a need to know basis and such Party shall not
distribute any reports or other information with respect to or which contain the
other Party's Confidential Information to any other employees, consultants or
otherwise, without the prior written consent of the Party which owns such
Confidential Information). 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. GlobalCenter acknowledges that any breach of the
understanding set forth herein will cause continuing irreparable injury to the
Client. which injury will not be measurable or fully or adequately compensated
in money damages. Accordingly, GlobalCenter hereby agree that if you breach any
of the covenants hereunder, in addition to all rights and remedies which the
Client may have, the Client shall be entitled to seek preliminary and/or
permanent injunctions to restrain such continuing breach and may do so without
having to post the bond or other security. GlobalCenter shall be responsible for
any breach of the provisions of this paragraph by any of your employees or
agents.
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
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APPLY EVEN IF GLOBALCENTER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF
SUCH DAMAGES.
13. DISCLAIMER OF WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
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 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. Client or GlobalCenter may not assign this Agreement, in whole
or in part, either voluntarily or by operation of law without written consent of
either party, and any attempt to do so shall be a material default of this
Agreement and shall be void. Notwithstanding the foregoing, Client may assign
such right in conjunction with a sale of all or substantially all of its assets,
a merger, consolidation or similar transaction without GlobalCenter's consent
provided that such assignment is not to a direct competitor of GlobalCenter or
to an entity which is not in good financial standing with or in litigation with
GlobalCenter. In the event an assignment is contemplated, per the provisions of
the foregoing sentence, client shall notify GlobalCenter of such assignment
prior to its effect or such assignment shall be null and void.
14.4. Governing Law. This Agreement shall be interpreted according to the laws
of the State of New York without regard to or application of choice-of-law rules
or principles. The panics hereby agree to the exclusive jurisdiction of the
state and federal courts located in New York, NY.
14.5. Entire Agreement and Waiver. This Agreement 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, including without limitation any
non-disclosure agreement previously executed between the parties. 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
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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 neither the Client nor GlobalCenter shall not solicit,
nor attempt to solicit the services, of any employee or subcontractor of
GlobalCenter without the prior written consent of GlobalCenter
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.
GlobalCenter Client
/s/ William H. Rhinehart /s/ Eric W. Bingham
---------------------------- ----------------------------
By: William H. Rhinehart By: Eric W. Bingham
Title: SVP/GM Title: Vice President
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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
* 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.
24x7 console access: GlobalCenter facilities in Sunnyvale and Herndon will
provide systems which allow Clients access to a terminal with a connection to
servers inside the Data Centers.
GlobalCenter Escalation Plan and Procedures: To be provided in the GlobalCenter
Welcome Package 5-10 days after contract signing.
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.
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Items 1. to VII. are included in the costs outlined in the GlobalCenter
proposal:
I. The NY GlobalCenter Network Operations Center will provide constant
monitoring of server output 24 hours a day, 7 days a week, 365 days a
year.
ICMP, HTTP, and process monitoring will be performed by GlobalCenter via
SNMP and NT Performance counter querying. In addition, specific URLs will
be checked through the standard HTTP query process..
II. ICMP checks will be performed every minute and http checks every 5 minutes
by the NOC. URL checking will take place at 10-15 minute intervals
(dependent upon the number of URL s that are to be checked). This interval
can be modified at any time to meet changing MiningCo requirements.
III. The GlobalCenter NOC will monitor the following conditions and will take
appropriate action (to be agreed between MiningCo and GlobalCenter - see
below) when the stated conditions are met:
1) ICMP tests fail for more than 5 minutes
2) HTTP checks fail for more than 5 minutes
3) If server CPU usage stays above 70% for 5 minutes or longer.
4) If server available memory remains below 10 Megabytes for 5 minutes
or longer.
5) If server hard drive space falls below 1 gigabyte.
In addition, GlobalCenter can monitor specific server processes as
MiningCo require. With these processes we can monitor:
6) If the process is running on the server.
7) If the process exceeds a certain threshold of virtual bytes used.
8) If any process thread count increases above a certain threshold.
IV. First level NOC staff, in the event of a fault condition, will attempt to
solve the problem immediately. This excludes any specific events requiring
immediate notification of MiningCo - this can be done automatically from
our monitoring systems via e-mail or pager; alternatively, NOC personnel
can call a nominated MiningCo contact. After 15 minutes, the outage will
be escalated to the appropriate level 2 technician, and if not resolved in
another 15 minutes time (30 minutes total), MiningCo will be notified and
a decision will be made on a further course of action.
V. At all times, NOC personnel will use mutually agreed upon procedures to
move toward resolution of the problem GlobalCenter will perform tape
rotation on a regular basis as required. System restores can be carried
out by GlobalCenter NOC or TAM as instructed by MiningCo personnel, to
mutually agreed upon procedures.
VI. GlobalCenter will provide a web-interface to MiningCo which will deliver a
real-time view of Bandwidth usage, GlobalCenter DS3 useage and a current
status of all servers at GC facilities.
VII. GlobalCenter will provide a dedicated Primary Technical Account Manager
for support, failure resolution, and scope of work performance who will
be:
- Educated in MiningCo's operations and configuration
- Directly reachable during normal business hours (8AM to 5PM EST) via
phone or pager.
- Familiar with scope of work and contractual issues.
VII. (a) GlobalCenter will provision a T-1 circuit from The Mining Company's
office located at 220 East 42nd street to GlobalCenter's data center
located at 60 Hudson Street.
(b) GlobalCenter will provision a T-1 circuit from The Mining Company's
office located at 20 Harlem Avenue in White Plains N.Y. to
GlobalCenter's data center located at 60 Hudson Street.
(c) The cost of migration of servers from The Mining Company's office to
GlobalCenter's data center is covered by the start up costs which
are covered in the 'Installation' portion of Exhibit #1, Title:
Globalcenter Service order.
(d) Configuration of Mining Company's servers will be done by employees
of The Mining Company for the initial installation into
GlobalCenter's data center, and assisted by GlobalCenter TAMS if
necessary. For all servers moved to GlobalCenter at future dates, a
standard configuration will be established between the GlobalCenter
TAM, Sara, and Olga of the Mining Company.
(e) Rebooting of Servers will be established based on either human or
automatic reboot procedures to be established at the Migration
meeting, prior to moving equipment to 60 Hudson.
(f) Servers to be installed at the GlobalCenter Data center are: Index
server(s), Mail server(s), Net Gravity server(s), boards machine(s).
All machines migrated to the GlobalCenter Data center will be
cataloged by The Mining Company and GlobalCenter by serial number,
Brand name, and number of each type of server being moved.
(g) GlobalCenter will be responsible for secondary DNS for The Mining
Company.
(h) Back-up currently run every evening by The Mining Company.
GlobalCenter will run back-up on times agreed by The Mining Company
and the GlobalCenter TAM.
(i) All specifics that were not covered in the above areas (a-h) will be
covered at length during the Migration Meeting. A thorough plan will
be in place before a single server is moved from The Mining
Company's office. A migration meeting will be set for a time that is
reasonable for both parties to discuss in depth all aspects of the
migration.
Items covered under Section Vlll. would be provided as additional services
with an associated additional cost, usually billed in number of TAM hours
used.
VIII. GlobalCenter has the capability to provide value added services, such as;
- a content monitoring system
- server load-balancing
- server mirroring (Express Mirror is a Unix based product)
- mail system upgrades
- database replication consultancy etc.
These services are available upon request and execution of a service order
by MiningCo. This service will involve an extra cost to MiningCo.
GLOBALCENTER Service Order #
------------------------------------------------------------------------------
Account Rep: Joe Bransom
Service Order Term: 1 year Sr. Account Executive
Date: 1/22/97 Office: Global Center
Customer: Ms. Olga Taller 88 Pine Street
Company: The Mining Company Suite 700
Address: 220 East 42nd Street New York, NY
City/St/Zip: New York, NY 10017 10005
Phone: 914-328-4200 Phone: 212-571-2000
FAX: 914-328-4232 FAX: 212-571-2036
Email: olga@taller.net Email: bransom@isi.net
--------------------------------------------------------------------------------
One Time Fees: EXHIBIT #1
---------------------------------------------------------------------------------------------
Item/Service Description Qty Unit price Total
---------------------------------------------------------------------------------------------
Installation Provisioning of Bandwidth $2,000.00
---------------------------------------------------------------------------------------------
100base-T 100base-T Fast Ethernet $1,500.00
---------------------------------------------------------------------------------------------
Total $3500.00
---------------------------------------------------------------------------------------------
Monthly Recurring Fees:
---------------------------------------------------------------------------------------------
Item/Service Description Qty Unit price Total
---------------------------------------------------------------------------------------------
Co-location (5)19' equipment racks in the New 5 $1300.00 for $6,500.00
York, NY facility the first (5)
racks. (See
attachment for
scaled price
rate.)
---------------------------------------------------------------------------------------------
Committed Connection to a single 5 $1,000 per $5,000.00
Bandwidth-T 100base-T.(5) Megabyte bandwidth megabyte 5 Meg
commitment commited
bandwidth.
(See attachment
for scaled
price rate)
---------------------------------------------------------------------------------------------
Professional Technical Account management 2 2 Months
Services Hours for simple programming months no
purposes. (All TAM hours are at charge.
subject to Olga Tallers prior no
approval. No TAM hours will be charge
used without the proper
authorization.) GlobalCenter
will give The Mining Company
two (2) free months of TAM hours.
Two months from the day the
agreement is signed.
---------------------------------------------------------------------------------------------
Scaled Pricing See attachment for scaled pricing
(All service orders signed during
the length of the 1 year
agreement will receive scaled
pricing as outlined in the
original proposal, dated January,
22nd 1998).
---------------------------------------------------------------------------------------------
This information (data) contained in this Service Order constitutes a trade
secret and/or information that is commercial or financial and confidential or
privileged. It is furnished to the Buyer in confidence with the understanding
that it will not, without permission of the offeror, be used or disclosed other
than for internal evaluation purposes.
---------------------------------------------------------------------------------------------
Item/Service Description Qty Unit price Total
---------------------------------------------------------------------------------------------
Monthly Total $11,500.00
==========
---------------------------------------------------------------------------------------------
GLOBALCENTER Service Order #
--------------------------------------------------------------------------------
95th Percentile Rule
Every GlobalCenter customer purchases a certain amount of guaranteed bandwidth
on GC/ISl's Internet Backbone per month for an entire year. We realize that
there are certain instances that your Web Site will burst over your purchased
amount of bandwidth. Therefore, we have devised a billing method to accommodate
for bandwidth burst over your subscribed amount using the '95th Percentile
Rule.'
First of all, you will be billed monthly for the bandwidth you have committed to
each month. GlobalCenter's SNMP bandwidth monitoring will sample (take a data
point reflecting how much bandwidth you are utilizing at that particular
instance) your Internet connection every 5 minutes and store those samples for a
period of one month.
At the end of the month, all the data samples ABOVE the amount of bandwidth you
have committed to will be collected and then be sorted from highest to lowest
and the top 5% will be discarded. The remaining 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 bandwidth rate for that particular month
over what bandwidth you have already purchased.
Service Order subject to a GlobalCenter Master Service Agreement. Service Order
serves as a Purchase Order when signed by an authorized representative. Please
send or FAX signed Service Order to the above address.
Accepted by: /s/ Eric W. Bingham
----------------------------
Printed Name: Eric W. Bingham Title: Vice President
PO #: Date: 1/27/98
----------------------------
GLOBALCENTER Master Service Agreement No. ____
--------------------------------------------------------------------------------
This Master Services Agreement (this 'Agreement') is entered into as
the 29th day of January, 1999 ('Effective Date') by and between the entity
indicated on the Services Order form attached hereto, with an office at the
address listed on the Services Order Form, ('Client'), and GlobalCenter Inc., a
corporation with offices at 88 Pine Street, New York, New York.
('GlobalCenter'), and describes the terms and conditions pursuant to which
GlobalCenter shall license to Client certain Software and provide certain
Services (as defined below).
In consideration of the mutual promises and upon the terms and
conditions set forth below, the parties agree as follows
1. NATURE OF AGREEMENT This is an Agreement for the provision by GlobalCenter of
Internet connectivity services (the 'Bandwidth'), the lease of equipment to
provide such services (the 'Hardware'), the availability of space to store and
operate such Hardware ('Space') and the licensing of software to provide such
Services (the 'Software'), together comprising an Internet connectivity and
collocation package to be provided by GlobalCenter under this Agreement
(together, the 'Services').
2. SERVICE ORDERS
2.1. Orders. Client may issue one or more service orders describing the
Bandwidth, Space, Hardware, and Software that Client desires ('Service Order').
Each Service Order Exhibit I will set forth the prices, initial term of Services
and other information in the form set forth in the Service Order Form. No
Service Order shall be effective until accepted by GlobalCenter. All Service
Orders will be subject to the terms and conditions of this Agreement, and the
terms of this Agreement shall supersede any terms and conditions which may
appear on Client's order form, or purchase order unless GlobalCenter signs such
order and thereby agrees to such amendment, in which event such amendment shall
supersede this agreement.
2.2. Cancellation. In the event that Client cancels or terminates a Service
Order at any time for any reason whatsoever other than expiration of a Service
Order, a Service Interruption (as defined below), or after the first sixty (60)
days of the agreement, Client agrees to pay GlobalCenter a cancellation fee
equaling two (2) months of the Monthly Recurring Charges specified in the
Service Order which shall become due and owing as of the effective date of
cancellation or termination.
2.3. IP Addresses. GlobalCenter may assign on a temporary basis a reasonable
number of Internet Protocol Addresses ('IP Addresses') from the address space
assigned to the GlobalCenter by InterNIC. Client acknowledges that the IP
Addresses are the sole property of GlobalCenter are assigned to Client as part
of the Service, and are not 'portable,' as such term is used by InterNIC.
GlobalCenter reserves the right to change the 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 agrees that it will
have no right to IP Addresses upon termination of this Agreement, and that any
renumbering required of Client after termination shall be the sole
responsibility of Client.
1
GLOBALCENTER Master Service Agreement No. ____
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GlobalCenter acknowledges that GlobalCenter shall have no right in or to any
domain names, unique telephone numbers for access to clients services or similar
properties and in the event that GlobalCenter comes into possession of or has
any interest in such rights, GlobalCenter shall hold such rights as the agent
for and irrevocably assign all such right to Client.
3. SOFTWARE LICENSE AND RIGHTS
3.1. License. During the term of the applicable Service Order, GlobalCenter
grants Client a nontransferable, nonexclusive license to use the Software in
object code form only, solely on the Hardware in conjunction with the Services.
GlobalCenter acknowledges that Client Software shall be operating on the
Hardware and GlobalCenter shall have no right, title or interest thereto.
3.2. Proprietary Rights. This Agreement transfers to neither client nor
GlobalCenter title nor any proprietary or intellectual property rights to the
Software, Hardware, documentation, or any copyrights, patents, or trademarks,
embodied or used in connection therewith, except for the rights expressly
granted herein.
3.3. License Restrictions. 3.4. Client and GlobalCenter agree that it will not
itself, or through any parent, subsidiary, affiliate, agent or other third
party:
3.4.1. copy the Software except as expressly allowed under this Agreement. In
the event Client makes any copies of the Software, Client shall reproduce all
proprietary notices of GlobalCenter on any such copies;
3.4.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive
source code from the Software;
3.4.3. sell, lease, license or sublicense the Software or the documentation;
3.4.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.4.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a `service bureau' basis.
4. HARDWARE TERMS AND CONDITIONS
4.1. Installation. GlobalCenter will use commercially reasonable efforts to
install the Hardware as the Hardware is shipped to GlobalCenter At Client's
request, GlobalCenter 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. GlobalCenter agrees that the Hardware may reside at the
Space during the term of this agreement and that the Hardware is and shall
remain the property of the Client. GlobalCenter shall not have taken or
attempted to take any right, title or interest therein or permit any third party
to take an interest therein. GlobalCenter will not transfer, sell, assign,
sublicense, pledge or otherwise dispose of, encumber or suffer a lien or
encumbrance upon the Hardware or any interest in the Hardware. GlobalCenter
shall not move the Hardware from the facility without Client's prior written
permission.
4.3. Lease of Hardware. If so indicated on the Service Order, Client shall lease
the Hardware, and GlobalCenter shall obtain and deliver to the Space the
Hardware. In the event Client leases the Hardware, the
2
GLOBALCENTER Master Service Agreement No. ____
------------------------------------------------------------------------------
following terms and conditions shall apply: The Hardware is and shall remain the
property of GlobalCenter. Client shall not have taken, 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
at the Space. Client will not move the Hardware from that facility without
GlobalCenter's prior written permission. Client shall be responsible for any
damage to the Hardware. 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 in 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, associated documentation, or any other materials of GlobalCenter
resident on the Hardware.
5. SPACE
5.1. License to Occupy. GlobalCenter grants to Client a nonexclusive 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 interests in
the Space.
5.2. Material and Changes. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Hardware, without obtaining
GlobalCenter's prior written approval for Client to have the work performed.
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. Client
agrees not to erect any signs or devices to the exterior portion of the Space
without submitting the request to GlobalCenter and obtaining GlobalCenter's
advance written approval.
5.3. Damage. Client agrees to reimburse GlobalCenter for all reasonable repair
or restoration costs associated with damage or destruction caused by Client's
personnel, Client's agents, Client's suppliers/contractors, or Client's visitors
during the term or as a consequence of Client's removal of the Hardware or
property installed in the Space except for normal wear and tear or based upon
actions taken by GlobalCenter.
5.4. Insurance. Unless otherwise agreed. Client agrees to maintain, at Client's
expense, (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 in an amount not less than that prescribed by statutory limits.
Prior to taking occupancy of the Collocation Space, Client shall furnish
GlobalCenter with certificates of insurance which evidence the minimum levels of
insurance set forth herein. Client shall also maintain insurance
3
GLOBALCENTER Master Service Agreement No. ____
------------------------------------------------------------------------------
covering Hardware or property owned or leased by Client against loss or physical
damage.
5.5. Regulations. Client shall comply with and not violate all of GlobalCenter's
generally accepted industry standards for safety, health and operational rules
and regulations. Client's failure to comply with GlobalCenter's generally
accepted industry standards for 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.
5.6. Disclaimer. GlobalCenter represents and warrants to Client that (i) the
Space meets the manufacturer's recommendations for the use of the equipment and
(ii) shall meet the specifications set forth in Exhibit III hereto. Client
hereby assumes any and all risks associated with Client, its agents or
employees' use of the Space and shall indemnify, defend and hold harmless
GlobalCenter from any and all claims, liabilities, judgments, causes of action,
damages, costs, and expenses (including reasonable attorneys' and experts'
fees), caused by or arising in connection with such use.
6. SERVICE INTERRUPTIONS
6.1. 99% Uptime Guarantee. In the event of Downtime (as defined below), the
monthly fee payable for the Services shall be reduced as follows:
6.1.1. if the total Downtime in the calendar month is more than two (2)
hours, but does not exceed four (4) hours, the monthly fee for that
month shall be reduced by one-third (33.3%);
6.1.2. if the total Downtime in the calendar month is more than four (4)
hours, but does not exceed eight (8) hours, the monthly fee for that
month shall be reduced by two-thirds (66.6%);
If the total Downtime in the calendar month is more than eight (8)
hours, the monthly fee for that month shall be waived.
For the purposes of this Section, Downtime shall mean any interruption of one
(1) minute or more in the availability to users of any Web site residing on the
Hardware and made available through the Services, only if such interruption is
due to either (i) failure by GlobalCenter to manage a server anomaly as agreed
in Exhibit II so as to avoid interruption in Web availability, or (ii) a
disruption in the connection between any such server and 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 excess of seventy percent (70%) and
is sustained for sixty (60) seconds or more, GlobalCenter will classify this an
'outage.' If an 'outage' continues for a time period of more than two (2)
minutes, then such outage will be deemed Downtime.
6.2. Investigation of Service Interruptions. GlobalCenter will investigate any
report of Downtime, and attempt to remedy any Downtime expeditiously.
GlobalCenter reasonably
4
GLOBALCENTER Master Service Agreement No. ____
------------------------------------------------------------------------------
determines that all facilities, systems and equipment furnished by GlobalCenter
are functioning properly, and that Downtime arose from some other cause.
GlobalCenter reserves the right to recover 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.
6.3. Termination. 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) hours or more.
6.4. Sole Remedy. The terms and conditions of this Section 6 shall Client's sole
remedy and GlobalCenter's sole obligation for any Downtime.
7. USER CONTENT GlobalCenter acknowledges that GlobalCenter shall have no right,
title or interest in or to any of the services, any postings, data or
transmission using the services (the 'Content'). 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, 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 illegal or disruptive purpose,
GlobalCenter may suspend or terminate Services immediately upon notice to Client
provided that GlobalCenter shall attempt to give client reasonable notice of
such problem and an opportunity to cure. 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.
8. PRICING AND PAYMENT TERMS
8.1. Payment Terms. Client shall pay the fees set forth in the Services Order
Form according to the terms set forth therein. Client agrees to pay a late
charge of one percent (1%) 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 receipt of
invoice.
8.2. Late Payments. In the event of non-payment by Client of sums over-due
hereunder for more than sixty (60) days, GlobalCenter may upon written notice to
Client 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. GlobalCenter shall not increase the prices for services
during the initial term of any Service Order. Pricing for additional service is
specified in Exhibit III.
9. MAINTENANCE AND SUPPORT. GlobalCenter shall provide Client with maintenance
and support Software and Hardware, if any ('Maintenance and Support') as
specified in Exhibit II.
9.1. Exclusions. Maintenance and Support shall not include services for problems
arising out of (a) modification,
5
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. 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 terminated in accordance with this Section 10. At the end
of the initial term, the agreement will be automatically extended on month to
month basis and can be canceled by either party with ninety (90) days written
notice.
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. In the event this
Agreement is terminated due to GlobalCenter's breach, GlobalCenter shall refund
to Client any Services fees on a straight line prorated basis.
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 on of the other party.
10.4. Effect of Termination. The provisions of Sections 1, 2.3, 3.2, 3.3, 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, or
through access to the services of the type of information which would normally
be deemed to be 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 who or which are actually working on the project
on a need to know basis and such Party shall not distribute any reports or other
information with respect to or which contain the other Party's Confidential
Information to any other
6
GLOBALCENTER Master Service Agreement No. ____
------------------------------------------------------------------------------
employees, consultants or otherwise, without the prior written consent of the
Party which owns such Confidential Information). 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 EXPRESSLY SET FORTH IN THIS AGREEMENT,
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 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. Client or GlobalCenter may not assign this Agreement, in whole
or in part, either voluntarily or by operation of law without written consent of
either party, and any attempt to do so shall be a material default of this
Agreement and shall be void. Notwithstanding the foregoing, Client may assign
such right in conjunction with a sale of all or substantially all of its assets,
a
7
GLOBALCENTER Master Service Agreement No. ____
------------------------------------------------------------------------------
merger, consolidation or similar transaction without GlobalCenter's consent
provided that such assignment is not to a direct competitor of GlobalCenter or
to an entity which is not in good financial standing with or in litigation with
GlobalCenter In the event an assignment is contemplated, per the provisions of
the foregoing sentence, client shall notify GlobalCenter of such assignment
prior to its effect or such assignment shall be null and void.
14.4. Governing Law. This Agreement shall be interpreted according to the laws
of the State of New York without regard to or application of choice-of-law rules
or principles. The parties hereby agree to the exclusive jurisdiction of the
state and federal courts located in New York, NY.
14.5. Entire Agreement and Waiver. This Agreement 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, including without limitation any
non-disclosure agreement previously executed between the parties. 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 neither the Client nor GlobalCenter shall not solicit,
nor attempt to solicit the services, of any employee or subcontractor of
GlobalCenter without the prior written consent of GlobalCenter
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.
GlobalCenter Client
/s/ Thomas Alvary /s/ Eric W. Bingham
---------------------------- ----------------------------
By: Thomas Alvary By: Eric W. Bingham
Title: VP Sales Title: Vice President
Business Operations
8
GLOBALCENTER Master Service Agreement No. ____
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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
* 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.
24x7 console access: GlobalCenter facilities in Sunnyvale and Herndon will
provide systems which allow Clients access to a terminal with a connection to
servers inside the Data Centers.
GlobalCenter Escalation Plan and Procedures: To be provided in the GlobalCenter
Welcome Package 5-10 days after contract signing.
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
be withheld by GlobalCenter to Clients for performing appropriate procedures and
maintenance of Hardware, facilities, and systems.
9
SERVICE ORDER # 8.0 SERVICE ORDER TERM: 12 MONTHS
MSA # 1.0 SERVICE ORDER DATE: 01/29/99
Site Express Estimated Install Date: 1/25/98
--------------------------------------------------------------------------------
Primary Contact: Eric Bingham Contact: Joe Bransom
Secondary Contact: Sara Plath Account Executive
Company: MiningCo.com, Inc. Address: Frontier GlobalCenter, Inc.
Address: 220 East 42nd Street 188 Pine Street
New York, NY 10005
City/St/Zip: New York, NY Phone: 212-618-9608
Phone: 212-849-2012 FAX: 212-571-2000
FAX: Pager: 800-963-5881
Pager: Cell: 917-907-1874
Email: ebingham@miningco.com Email: bransom@globalcenter.net
--------------------------------------------------------------------------------
Site Express One Time Installation Fees:
--------------------------------------------------------------------------------------------
Item # Description Qty. Unit price Total
--------------------------------------------------------------------------------------------
1 Port Installation: 1 $750 $0.00
Dedicated Switched 10Mbps Ethernet
port on Frontier GlobalCenter Cisco
Catalyst 5500 switch.
--------------------------------------------------------------------------------------------
2 Co-location Installation: 1 $0.00 $0.00
7' x 19' Rack Unit w/ 20 amps power
--------------------------------------------------------------------------------------------
3 Technical Account manager (TAM) 2 $200/Hour $0.00
Installation Per Server,
Application and/or device:
Installation includes IP address
allocation, customized monitoring
procedure setup, Express Control
and KickStart Remote Reboot setup,
hardware and software installation
and setup. $200 Per Hour for all
installations occurring during
non-standard business hours
(8AM-6PM Monday through Friday)
and/or less than 72 Hours
notification.
--------------------------------------------------------------------------------------------
One Time Total $0.00
--------------------------------------------------------------------------------------------
Site Express Monthly Recurring Fees:
--------------------------------------------------------------------------------------------
Item # Description Qty. Unit price Total
--------------------------------------------------------------------------------------------
1 Committed Bandwidth: 9 $800 $7,200
Guaranteed dedicated switched
xMbps bandwidth to the Frontier
GlobalCenter backbone via Cisco
Catalyst 550 switch
--------------------------------------------------------------------------------------------
1A Burstable Bandwidth: x $1000 TBD
Bandwidth above the committed
XMbps determined and billed via
the 95th Percentile Rule
--------------------------------------------------------------------------------------------
10
SERVICE ORDER # 8.0 SERVICE ORDER TERM: 12 MONTHS
MSA # 1.0 SERVICE ORDER DATE: 01/29/99
Site Express Estimated Install Date: 1/25/98
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
2 Co-location: 24 $800 $19,200
Full Rack: 7' x 19' Rack w/20
amps power.
--------------------------------------------------------------------------------------------
3 Technical Account Manager (TAM) x $150 Per Hour TBD
Consulting Time:
Pre-contracted time billed at $150
per hour during standard business
hours (8AM-6PM Monday through
Friday excluding major holidays).
All non-standard business and non
contracted hours billed at $200
per hour.
--------------------------------------------------------------------------------------------
Monthly Recurring Total $26,400
--------------------------------------------------------------------------------------------
This 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 Frontier GlobalCenter.
Terms outlined in this Service Order/Quote
11
SERVICE ORDER # 8.0 SERVICE ORDER TERM: 12 MONTHS
MSA # 1.0 SERVICE ORDER DATE: 01/29/99
Site Express Estimated Install Date: 1/25/98
--------------------------------------------------------------------------------
95th Percentile Rule
Every GlobalCenter client purchases a certain amount of guaranteed bandwidth on
GC/ISl's Internet Backbone per month for an entire year. We realize that there
are certain instances that your Web Site will burst over your purchased amount
of bandwidth. Therefore, we have devised a billing method to accommodate for
bandwidth burst over your subscribed amount using the '95th Percentile Rule.'
First of all, you will be billed monthly for the bandwidth you have committed to
each month. GlobalCenter's SNMP bandwidth monitoring will sample (take a data
point reflecting how much bandwidth you are utilizing at that particular
instance) your Internet connection every 5 minutes and store those samples for a
period of one month.
At the end of the month, all the data samples ABOVE the amount of bandwidth you
have committed to will be collected and then be sorted from highest to lowest
and the top 5% will be discarded. The remaining 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 bandwidth rate for that particular month
over what bandwidth you have already purchased.
Service Order subject to a GlobalCenter Master Service Agreement. Service Order
serves as a Purchase Order when signed by an authorized representative. Please
send or FAX signed Service Order to the above address.
Accepted by: /s/ Eric W. Bingham
----------------------------
Printed Name: Eric W. Bingham Title: Vice President
Business Operations
PO #: Date: 1/29/99
----------------------------
Master Services Agreement - GlobalCenter Inc. and Mining Co.
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