{"id":42561,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-services-agreement-globalcenter-inc-and-mining-co.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-services-agreement-globalcenter-inc-and-mining-co","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-services-agreement-globalcenter-inc-and-mining-co.html","title":{"rendered":"Master Services Agreement &#8211; GlobalCenter Inc. and Mining Co."},"content":{"rendered":"<pre>\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\n            This Master Services Agreement (this 'Agreement') is entered into as\nthe 27th day of January, 1998 ('Effective Date') by and between the entity\nindicated on the Services Order form attached hereto, with an office at the\naddress listed on the Services Order Form, ('Client'), and GlobalCenter Inc., a\ncorporation with offices at 88 Pine Street, New York, New York ('GlobalCenter')\nand describes the terms and conditions pursuant to which GlobalCenter shall\nlicense to Client certain Software and provide certain Services (as defined\nbelow).\n\n            In consideration of the mutual promises and upon the terms and\nconditions set forth below, the parties agree as follows\n\n1. NATURE OF AGREEMENT This is an Agreement for the provision by GlobalCenter of\nInternet connectivity services (the 'Bandwidth'), the lease of equipment to\nprovide such services (the 'Hardware'), the availability of space to store and\noperate such Hardware ('Space') and the licensing of software to provide such\nServices (the 'Software'), together comprising an Internet connectivity and\ncollocation package to be provided by GlobalCenter under this Agreement\n(together, the 'Services').\n\n2. SERVICE ORDERS\n\n2.1. Orders. Client may issue one or more service orders describing the\nBandwidth, Space, Hardware, and Software that Client desires ('Service Order').\nEach Service Order Exhibit I will set forth the prices, initial term of Services\nand other information in the form set forth in the Service Order Form. No\nService Order shall be effective until accepted by GlobalCenter. All Service\nOrders will be subject to the terms and conditions of this Agreement, and the\nterms of this Agreement shall supersede any terms and conditions which may\nappear on Client's order form, or purchase order unless GlobalCenter signs such\norder and thereby agrees to such amendment, in which event such amendment shall\nsupersede this agreement.\n\n2.2. Cancellation. In the event that Client cancels or terminates a Service\nOrder at any time for any reason whatsoever other than expiration of a Service\nOrder, a Service Interruption (as defined below), or after the first sixty (60)\ndays of the agreement, Client agrees to pay GlobalCenter a cancellation fee\nequaling two (2) months of the Monthly Recurring Charges specified in the\nService Order which shall become due and owing as of the effective date of\ncancellation or termination.\n\n2.3. IP Addresses. GlobalCenter may assign on a temporary basis a reasonable\nnumber of Internet Protocol Addresses ('IP Addresses') from the address space\nassigned to the GlobalCenter by InterNIC. Client acknowledges that the IP\nAddresses are the sole property of GlobalCenter are assigned to Client as part\nof the Service, and are not 'portable,' as such term is used by InterNIC.\nGlobalCenter reserves the right to change the IP Address assignments at any\ntime; however, GlobalCenter shall use reasonable efforts to avoid any disruption\nto Client resulting from such renumbering requirement. GlobalCenter will give\nClient reasonable notice of any such renumbering. Client agrees that it will\nhave no right to IP Addresses upon termination of this Agreement, and that any\nrenumbering required of Client after termination shall be the sole\nresponsibility of Client.\n\n\n                                                                               1\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nGlobalCenter acknowledges that GlobalCenter shall have no right in or to any\ndomain names, unique telephone numbers for access to clients services or similar\nproperties and in the event that GlobalCenter comes into possession of or has\nany interest in such rights, GlobalCenter shall hold such rights as the agent\nfor and irrevocably assign all such right to Client.\n\n3. SOFTWARE LICENSE AND RIGHTS\n\n3.1. License. During the term of the applicable Service Order, GlobalCenter\ngrants Client a nontransferable, nonexclusive license to use the Software in\nobject code form only, solely on the Hardware in conjunction with the Services.\nGlobalCenter acknowledges that Client Software shall be operating on the\nHardware and GlobalCenter shall have no right, title or interest thereto.\n\n3.2. Proprietary Rights. This Agreement transfers to neither client nor\nGlobalCenter title nor any proprietary or intellectual property rights to the\nSoftware, Hardware, documentation, or any copyrights, patents, or trademarks,\nembodied or used in connection therewith, except for the rights expressly\ngranted herein.\n\n3.3. License Restrictions. 3.4. Client and GlobalCenter agree that it will not\nitself, or through any parent, subsidiary, affiliate, agent or other third\nparty:\n\n3.4.1. copy the Software except as expressly allowed under this Agreement. In\nthe event Client makes any copies of the Software, Client shall reproduce all\nproprietary notices of GlobalCenter on any such copies;\n\n3.4.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive\nsource code from the Software;\n\n3.4.3. sell, lease, license or sublicense the Software or the documentation;\n\n3.4.4. write or develop any derivative software or any other software program\nbased upon the Software or any Confidential Information (as defined below); or\n\n3.4.5. use the Software to provide processing services to third parties, or\notherwise use the Software on a `service bureau' basis.\n\n4. HARDWARE TERMS AND CONDITIONS\n\n4.1. Installation. GlobalCenter will use commercially reasonable efforts to\ninstall the Hardware as the Hardware is shipped to GlobalCenter. At Client's\nrequest, GlobalCenter will work with the Client on an installation plan to\ndefine installation time frame and requirements.\n\n4.2. Purchase and Title of Hardware. If so indicated on the Service Order,\nClient shall purchase the Hardware and deliver, at Client's expense, the\nHardware to the Space. GlobalCenter agrees that the Hardware may reside at the\nSpace during the term of this agreement and that the Hardware is and shall\nremain the property of the Client. GlobalCenter shall not have taken or\nattempted to take any right, title or interest therein or permit any third party\nto take an interest therein. GlobalCenter will not transfer, sell, assign,\nsublicense, pledge or otherwise dispose of, encumber or suffer a lien or\nencumbrance upon the Hardware or any interest in the Hardware. GlobalCenter\nshall not move the Hardware from the \n\n\n                                                                               2\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nfacility without Client's prior written permission.\n\n4.3. Lease of Hardware. If so indicated on the Service Order, Client shall lease\nthe Hardware, and GlobalCenter shall obtain and deliver to the Space the\nHardware. In the event Client leases the Hardware, the following terms and\nconditions shall apply: The Hardware is and shall remain the property of\nGlobalCenter. Client shall not have taken, or attempt to take, any right, title\nor interest therein or permit any third party to take any interest therein.\nClient will not transfer, sell, assign, sublicense, pledge, or otherwise dispose\nof, encumber or suffer a lien or encumbrance upon or against the Hardware or any\ninterest in the Hardware. Client will use the Hardware only at the Space. Client\nwill not move the Hardware from that facility without GlobalCenter's prior\nwritten permission. Client shall be responsible for any damage to the Hardware.\nClient will use the Hardware only for the purpose of exercising its rights under\nthis Agreement.\n\n4.4. Rent to Own. If so indicated on the Service Order, Client shall lease the\nHardware on a 'rent to own' plan. In such event, all of the terms and conditions\nin Section 4.3 shall apply, and the following terms and conditions shall also\napply. At the end of the term of the Service Order, providing Client is not in\nbreach of this Agreement, Client shall have the option to purchase the Hardware.\nThe purchase price shall be as indicated on the Service Order. Upon payment by\nClient of the purchase price, title in the Hardware shall pass to Client at the\nSpace. Unless the Service Order is extended by mutual agreement, Client shall\nimmediately delete, or shall allow GlobalCenter to delete, all copies of the\nSoftware, associated documentation, or any other materials of GlobalCenter\nresident on the Hardware.\n\n5. SPACE\n\n5.1. License to Occupy. GlobalCenter grants to Client a nonexclusive license to\noccupy the Space. Client acknowledges that it has been granted only a license to\noccupy the Space and that it has not been granted any real property interests in\nthe Space.\n\n5.2. Material and Changes. Client shall not make any construction changes or\nmaterial alterations to the interior or exterior portions of the Space,\nincluding any cabling or power supplies for the Hardware, without obtaining\nGlobalCenter's prior written approval for Client to have the work performed.\nAlternatively, Client may request GlobalCenter to perform the work. GlobalCenter\nreserves the right to perform and manage any construction or alterations within\nthe Space areas at rates to be negotiated between the Parties hereto. Client\nagrees not to erect any signs or devices to the exterior portion of the Space\nwithout submitting the request to GlobalCenter and obtaining GlobalCenter's\nadvance written approval.\n\n5.3. Damage. Client agrees to reimburse GlobalCenter for all reasonable repair\nor restoration costs associated with damage or destruction caused by Client's\npersonnel, Client's agents, Client's suppliers\/contractors, or Client's visitors\nduring the term or as a consequence of Client's removal of the Hardware or\nproperty installed in the Space except for normal wear and tear or based upon\nactions taken by GlobalCenter\n\n5.4. Insurance. Unless otherwise agreed. Client agrees to maintain, at Client's\nexpense, (i) Comprehensive \n\n\n                                                                               3\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nGeneral Liability Insurance in an amount not less than One Million Dollars\n($1,000,000) per occurrence for bodily injury or property damage, (ii)\nEmployer's Liability in an amount not less than Five Hundred Thousand Dollars\n($500,000) per occurrence, and (iii) Worker's Compensation in an amount not less\nthan that prescribed by statutory limits. Prior to taking occupancy of the\nCollocation Space, Client shall furnish GlobalCenter with certificates of\ninsurance which evidence the minimum levels of insurance set forth herein.\nClient shall also maintain insurance covering Hardware or property owned or\nleased by Client against loss or physical damage.\n\n5.5. Regulations. Client shall comply with and not violate all of GlobalCenter's\ngenerally accepted industry standards for safety, health and operational rules\nand regulations. Client's failure to comply with GlobalCenter's generally\naccepted industry standards for rules and regulations shall constitute a\nmaterial default under this Agreement. GlobalCenter may, in its sole discretion,\nlimit Client's access to a reasonable number of authorized Client employees or\ndesignees. Client shall not interfere with any other clients of GlobalCenter or\nsuch other clients' use of the Space.\n\n5.6. Disclaimer. GlobalCenter represents and warrants to Client that (i) the\nSpace meets the manufacturer's recommendations for the use of the equipment and\n(ii) shall meet the specifications set forth in Exhibit 111 hereto. Client\nhereby assumes any and all risks associated with Client, its agents or\nemployees' use of the Space and shall indemnify, defend and hold harmless\nGlobalCenter from any and all claims, liabilities, judgments, causes of action,\ndamages, costs, and expenses (including reasonable attorneys' end experts'\nfees), caused by or arising in connection with such use.\n\n6. SERVICE INTERRUPTIONS\n\n6.1. 99% Uptime Guarantee. In the event of Downtime (as defined below), the\nmonthly fee payable for the Services shall be reduced as follows:\n\n      6.1.1. if the total Downtime in the calendar month is more than two (2)\n      hours, but does not exceed four (4) hours, the monthly fee for that month\n      shall be reduced by one-third (33.3%);\n\n      6.1.2. if the total Downtime in the calendar month is more than four (4)\n      hours, but does not exceed eight (8) hours, the monthly fee for that month\n      shall be reduced by two-thirds (66.6%);\n\n      If the total Downtime in the calendar month is more than eight (8) hours,\n      the monthly fee for that month shall be waived.\n\nFor the purposes of this Section, Downtime shall mean any interruption of one\n(1) minute or more in the availability to users of any Web site residing on the\nHardware and made available through the Services, only if such interruption is\ndue to either (i) failure by GlobalCenter to manage a server anomaly as agreed\nin Exhibit II so as to avoid interruption in Web availability, or (ii) a\ndisruption in the connection between any such server and the Internet. For\npurposes of this Section, the Internet is deemed to consist of services that\ncommence where GlobalCenter transmits a\n\n\n                                                                               4\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nClient's content to GlobalCenter's carrier(s) at the GlobalCenter border router\nport(s). Such carriers provide GlobalCenter with private and dedicated\nbandwidth. GlobalCenter undertakes no obligation for the circuit or link between\nGlobalCenter's facilities and such carrier's services. If router packet loss is\nexcess of seventy percent (70%) and is sustained for sixty (60) seconds or more,\nGlobalCenter will classify this an 'outage.' If an 'outage' continues for a time\nperiod of more than two (2) minutes, then such outage will be deemed Downtime.\n\n6.2. Investigation of Service Interruptions. GlobalCenter will investigate any\nreport of Downtime, and attempt to remedy any Downtime expeditiously.\nGlobalCenter reasonably determines that all facilities, systems and equipment\nfurnished by GlobalCenter are functioning properly, and that Downtime arose from\nsome other cause, GlobalCenter reserves the right to recover labor and materials\ncost for services actually performed at the usual and customary rates for\nsimilar services provided by GlobalCenter to clients in the same locality.\n\n6.3. Termination. Client may terminate a Service Order in the event of Downtime\nof either twenty-four (24) hours of cumulative time during any continuous twelve\n(12) month period, or any continuous Downtime of eight (8) hours or more.\n\n6.4. Sole Remedy. The terms and conditions of this Section 6 shall Client's sole\nremedy and GlobalCenter's sole obligation for any Downtime.\n\n7. USER CONTENT GlobalCenter acknowledges that GlobalCenter shall have no right,\ntitle or interest in or to any of the services, any postings, data or\ntransmission using the services (the 'Content'). Disruptions include without\nlimitation distribution of unsolicited advertising or chain letters, repeated\nharassment of other network users, wrongly impersonating another such user,\nfalsifying one's network identity for improper or illegal purposes, sending\nunsolicited mass e-mailings, propagation of computer worms and viruses, and\nusing the network to make unauthorized entry to any other machine accessible via\nthe network. If GlobalCenter has reasonable grounds to believe that Client or a\nUser is utilizing the Services for any such illegal or disruptive purpose,\nGlobalCenter may suspend or terminate Services immediately upon notice to Client\nprovided that GlobalCenter shall attempt to give client reasonable notice of\nsuch problem and an opportunity to cure. Client shall defend, indemnify, hold\nharmless GlobalCenter from and against all liabilities and costs (including\nreasonable attorney's fees) arising from any and all claims by any person\narising out of Client's use of the Services, including without limitation any\ncontent.\n\n8. PRICING AND PAYMENT TERMS\n\n8.1. Payment Terms. Client shall pay the fees set forth in the Services Order\nForm according to the terms set forth therein. Client agrees to pay a late\ncharge of one percent (1%) above the prime rate as reported by the Wall Street\nJournal at the time of assessment or the maximum lawful rate, whichever is less,\nfor all undisputed amounts not paid within thirty (30) days of receipt of\ninvoice.\n\n8.2. Late Payments. In the event of non-payment by Client of sums over-due\nhereunder for more than sixty (60) days, GlobalCenter may upon written notice to\n\n\n                                                                               5\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nClient request Client to remove equipment from GlobalCenter's premises within\nten (10) days. If Client fails to so remove, GlobalCenter may deliver the\nequipment to Client at the latter's address for notices at Client's expense for\nshipment and insurance, and Client shall be obligated to accept such delivery.\n\n8.3. Price Increases. GlobalCenter shall not increase the prices for services\nduring the initial term of any Service Order. Pricing for additional service is\nspecified in Exhibit 111.\n\n9. MAINTENANCE AND SUPPORT GlobalCenter shall provide Client with maintenance\nand support Software and Hardware, if any ('Maintenance and Support') as\nspecified in Exhibit 11\n\n9.1. Exclusions. Maintenance and Support shall not include services for problems\narising out of (a) modification, on, alteration on or addition or attempted\nmodification, alteration or addition of the Hardware or Software undertaken by\npersons other than GlobalCenter or GlobalCenter's authorized representatives.\nClient Duties. Client shall document and promptly report all errors or\nmalfunctions of the Hardware or Software to GlobalCenter Client shall take all\nsteps necessary to carry out procedures for the rectification of errors or\nmalfunctions within a reasonable time after such procedures have been received\nfrom GlobalCenter Client shall maintain a current backup copy of all programs\nand data. Client shall properly train its personnel in the use and application\nof the Hardware and Software.\n\n10. TERM AND TERMINATION\n\n10.1. Term. The term of this Agreement shall commence on the Effective Date and\ncontinue indefinitely terminated in accordance with this Section 10. At the end\nof the initial term, the agreement will be automatically extended on month to\nmonth basis and can be canceled by either party with ninety (90) days written\nnotice.\n\n10.2. Termination Upon Default. Either party may terminate this Agreement in the\nevent that the other party materially defaults in performing any obligation\nunder this Agreement and such default continues unremedied for a period of shiny\n(30) days following written notice of default. In the event this Agreement is\nterminated due to GlobalCenter's breach, GlobalCenter shall refund to Client any\nServices fees on a straight line prorated basis.\n\n10.3. Termination Upon Insolvency. This Agreement shall terminate, effective\nupon delivery of written notice by a party, (i) upon the institution of\ninsolvency, receivership or bankruptcy proceedings or any other proceedings for\nthe settlement of debts of the other party; (ii) upon the making of an\nassignment for the benefit of creditors by the other party; or (iii) upon the\ndissolution on of the other party.\n\n10.4. Effect of Termination. The provisions of Sections 1, 2.3, 3.2, 3.3, 7,\n10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. All other\nrights and obligations of the parties shall cease upon termination of this\nAgreement. The term of any license granted hereunder shall expire upon\nexpiration or termination of this Agreement\n\n11. CONFIDENTIAL INFORMATION All information \n\n\n                                                                               6\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nidentified disclosed by either party ('Disclosing Party') to the other party\n('Receiving Party'), if disclosed in writing, labeled as proprietary or\nconfidential, or if disclosed orally, or through access to the services of the\ntype of information which would normally be deemed to be confidential\n('Confidential Information') shall remain the sole property of Disclosing Party.\nExcept for the specific rights granted by this Agreement, Receiving Party shall\nnot use any Confidential Information of Disclosing Party for its own account.\nReceiving Party shall use the highest commercially reasonable degree of care to\nprotect Disclosing Party's Confidential Information. Receiving Party shall not\ndisclose Confidential Information to any third party without the express written\nconsent of Disclosing Party (except solely for Receiving Party's internal\nbusiness needs, to employees or consultants who are bound by a written agreement\nwith Receiving Party to maintain the confidentiality of such Confidential\nInformation in a manner consistent with this Agreement who or which are actually\nworking on the project on a need to know basis and such Party shall not\ndistribute any reports or other information with respect to or which contain the\nother Party's Confidential Information to any other employees, consultants or\notherwise, without the prior written consent of the Party which owns such\nConfidential Information). Confidential Information shall exclude information\n(i) available to the public other than by a breach of this Agreement; (ii)\nrightfully received from a third party not in breach of an obligation of\nconfidentiality; (iii) independently developed by Receiving Party without access\nto Confidential Information; (iv) known to Receiving Party at the time of\ndisclosure; or (v) produced in compliance with applicable law or a court order,\nprovided Disclosing Party is given reasonable notice of such law or order and an\nopportunity to attempt to preclude or limit such production. Subject to the\nabove, Receiving Party agrees to cease using any and all materials embodying\nConfidential Information, and to promptly return such materials to Disclosing\nParty upon request. GlobalCenter acknowledges that any breach of the\nunderstanding set forth herein will cause continuing irreparable injury to the\nClient. which injury will not be measurable or fully or adequately compensated\nin money damages. Accordingly, GlobalCenter hereby agree that if you breach any\nof the covenants hereunder, in addition to all rights and remedies which the\nClient may have, the Client shall be entitled to seek preliminary and\/or\npermanent injunctions to restrain such continuing breach and may do so without\nhaving to post the bond or other security. GlobalCenter shall be responsible for\nany breach of the provisions of this paragraph by any of your employees or\nagents.\n\n12. LIMITATION OF LIABILITY GLOBALCENTER'S LIABILITY FOR ALL CLAIMS ARISING OUT\nOF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO\nGLOBALCENTER UNDER THIS AGREEMENT. IN NO EVENT SHALL GLOBALCENTER BE LIABLE FOR\nANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL,\nCONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT\nOR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF\nLIABILITY. THIS LIMITATION WILL \n\n\n                                       7\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nAPPLY EVEN IF GLOBALCENTER HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF\nSUCH DAMAGES.\n\n13. DISCLAIMER OF WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,\nGLOBALCENTER SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING\nBUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A\nPARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY\nGLOBALCENTER HEREUNDER.\n\n14. MISCELLANEOUS\n\n14.1. Independent Contractor. The relationship of GlobalCenter and Client\nestablished by this Agreement is that of independent contractors, and nothing\ncontained in this Agreement shall be construed to (i) give either party the\npower to direct and control the day-to-day activities of the other; (ii)\nconstitute the parties as partners, joint ventures, co-owners or otherwise as\nparticipants in a joint undertaking; or (iii) allow either party to create or\nassume any obligation on behalf of the other party for any purpose whatsoever.\n\n14.2. Notices. Any notice required or permitted hereunder shall be in writing\nand shall be given by registered or certified mail addressed to the addresses\nfirst written above. Such notice shall be deemed to be given upon the earlier of\nactual receipt or three (3) days after it has been sent, properly addressed and\nwith postage prepaid. Either party may change its address for notice by means of\nnotice to the other party given in accordance with this Section.\n\n14.3. Assignment. Client or GlobalCenter may not assign this Agreement, in whole\nor in part, either voluntarily or by operation of law without written consent of\neither party, and any attempt to do so shall be a material default of this\nAgreement and shall be void. Notwithstanding the foregoing, Client may assign\nsuch right in conjunction with a sale of all or substantially all of its assets,\na merger, consolidation or similar transaction without GlobalCenter's consent\nprovided that such assignment is not to a direct competitor of GlobalCenter or\nto an entity which is not in good financial standing with or in litigation with\nGlobalCenter. In the event an assignment is contemplated, per the provisions of\nthe foregoing sentence, client shall notify GlobalCenter of such assignment\nprior to its effect or such assignment shall be null and void.\n\n14.4. Governing Law. This Agreement shall be interpreted according to the laws\nof the State of New York without regard to or application of choice-of-law rules\nor principles. The panics hereby agree to the exclusive jurisdiction of the\nstate and federal courts located in New York, NY.\n\n14.5. Entire Agreement and Waiver. This Agreement shall constitute the entire\nagreement between GlobalCenter and Client with respect to the subject matter\nhereof and all prior agreements, representations, and statement with respect to\nsuch subject matter are superseded hereby, including without limitation any\nnon-disclosure agreement previously executed between the parties. This Agreement\nmay be changed only by written agreement signed by both GlobalCenter and Client.\nNo failure of either party to exercise or enforce any of its rights under this\nAgreement shall act as a waiver of subsequent breaches; and the\n\n\n                                                                               8\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nwaiver of any breach shall not act as a waiver of subsequent breaches.\n\n14.6. Severability. In the event any provision of this Agreement is held by a\ncourt of other tribunal of competent jurisdiction to be unenforceable, that\nprovision will be enforced to the maximum extent permissible under applicable\nlaw, and the other provisions of this Agreement will remain in full force and\neffect.\n\n14.7. Non-Solicitation. During the term of this agreement and for a period of\none (1) year thereafter neither the Client nor GlobalCenter shall not solicit,\nnor attempt to solicit the services, of any employee or subcontractor of\nGlobalCenter without the prior written consent of GlobalCenter\n\n14.8. Substitution.  GlobalCenter may substitute, change or modify the\nSoftware or Hardware at any time, but shall not thereby alter the technical\nparameters of the Services.\n\nGlobalCenter                            Client\n\n\n\/s\/ William H. Rhinehart                \/s\/ Eric W. Bingham\n----------------------------            ----------------------------\nBy: William H. Rhinehart                By: Eric W. Bingham\nTitle: SVP\/GM                           Title: Vice President\n\n\n                                                                               9\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nSERVICE SPECIFICATION\n\nCollocation Service\n\nGlobalCenter will provide a level of service which includes the following\nfeatures and options:\n\nGeneral Features:\n\nMaintenance of the Space (including Janitorial Services):\n\nIn connection with the Space made available hereunder, GlobalCenter or its\nlandlord shall perform services that support the overall operation of each Space\nat no additional charge to Client. Those services include the following\n\n* Janitorial Services\n* 24 x 7 Access to the Space\n* Authorized Security System Access to Raised Floor Collocation Space \n* Primary A\/C 110 volt Power to the Space\n* Backup Power- UPS Systems &amp; Battery Plant (30 - 60 minute survivability\nobjective)\n* Generator Back-up (Sustained backup power)\n* HVAC Systems for facility air conditioning\n* Fire Control Systems\n* Network Monitoring Systems\n* Redundant Network Connectivity and Hardware\n* 19' Rack Spaces for installation of Hardware\n* 10-base-T or 100-base-T switched port with direct high speed Internet backbone\nconnection.\n\n24x7 NOC support: Will provide proactive site monitoring with ExpressLane(TM)\nstatistics on Client information base; including bandwidth usage, statistics and\nnetwork availability reporting, host monitoring and management interface, access\nto GlobalCenter incident tracking system to expedite fault resolution and remote\nserver reboot.\n\n24x7 console access: GlobalCenter facilities in Sunnyvale and Herndon will\nprovide systems which allow Clients access to a terminal with a connection to\nservers inside the Data Centers.\n\nGlobalCenter Escalation Plan and Procedures: To be provided in the GlobalCenter\nWelcome Package 5-10 days after contract signing.\n\nRight-of-Way and Access:\n\nGlobalCenter will allow 24 x 7 access and right-of-way to Client Hardware\nlocated in GlobalCenter facility at no charge. Clients will be escorted at all\ntimes while in the facility. Access to the facilities will not be unreasonably\nwithheld by GlobalCenter to Clients for performing appropriate procedures and\nmaintenance of Hardware, facilities, and systems.\n\n\n                                                                              10\n\n\nGlobalCenter Value-Added Services                                     EXHIBIT #2\n--------------------------------------------------------------------------------\n\nItems 1. to VII. are included in the costs outlined in the GlobalCenter\nproposal:\n\nI.    The NY GlobalCenter Network Operations Center will provide constant\n      monitoring of server output 24 hours a day, 7 days a week, 365 days a\n      year.\n\n      ICMP, HTTP, and process monitoring will be performed by GlobalCenter via\n      SNMP and NT Performance counter querying. In addition, specific URLs will\n      be checked through the standard HTTP query process..\n\nII.   ICMP checks will be performed every minute and http checks every 5 minutes\n      by the NOC. URL checking will take place at 10-15 minute intervals\n      (dependent upon the number of URL s that are to be checked). This interval\n      can be modified at any time to meet changing MiningCo requirements.\n\nIII.  The GlobalCenter NOC will monitor the following conditions and will take\n      appropriate action (to be agreed between MiningCo and GlobalCenter - see\n      below) when the stated conditions are met:\n\n      1)    ICMP tests fail for more than 5 minutes\n      2)    HTTP checks fail for more than 5 minutes\n      3)    If server CPU usage stays above 70% for 5 minutes or longer.\n      4)    If server available memory remains below 10 Megabytes for 5 minutes\n            or longer.\n      5)    If server hard drive space falls below 1 gigabyte.\n\n      In addition, GlobalCenter can monitor specific server processes as\n      MiningCo require. With these processes we can monitor:\n\n      6)    If the process is running on the server.\n      7)    If the process exceeds a certain threshold of virtual bytes used.\n      8)    If any process thread count increases above a certain threshold.\n\nIV.   First level NOC staff, in the event of a fault condition, will attempt to\n      solve the problem immediately. This excludes any specific events requiring\n      immediate notification of MiningCo - this can be done automatically from\n      our monitoring systems via e-mail or pager; alternatively, NOC personnel\n      can call a nominated MiningCo contact. After 15 minutes, the outage will\n      be escalated to the appropriate level 2 technician, and if not resolved in\n      another 15 minutes time (30 minutes total), MiningCo will be notified and\n      a decision will be made on a further course of action.\n\nV.    At all times, NOC personnel will use mutually agreed upon procedures to\n      move toward resolution of the problem GlobalCenter will perform tape\n      rotation on a regular basis as required. System restores can be carried\n      out by GlobalCenter NOC or TAM as instructed by MiningCo personnel, to\n      mutually agreed upon procedures.\n\nVI.   GlobalCenter will provide a web-interface to MiningCo which will deliver a\n      real-time view of Bandwidth usage, GlobalCenter DS3 useage and a current\n      status of all servers at GC facilities.\n\n\n\nVII.  GlobalCenter will provide a dedicated Primary Technical Account Manager\n      for support, failure resolution, and scope of work performance who will\n      be:\n\n      - Educated in MiningCo's operations and configuration\n      - Directly reachable during normal business hours (8AM to 5PM EST) via\n        phone or pager.\n      - Familiar with scope of work and contractual issues.\n\nVII.  (a)   GlobalCenter will provision a T-1 circuit from The Mining Company's\n            office located at 220 East 42nd street to GlobalCenter's data center\n            located at 60 Hudson Street.\n\n      (b)   GlobalCenter will provision a T-1 circuit from The Mining Company's\n            office located at 20 Harlem Avenue in White Plains N.Y. to\n            GlobalCenter's data center located at 60 Hudson Street.\n\n      (c)   The cost of migration of servers from The Mining Company's office to\n            GlobalCenter's data center is covered by the start up costs which\n            are covered in the 'Installation' portion of Exhibit #1, Title:\n            Globalcenter Service order.\n\n      (d)   Configuration of Mining Company's servers will be done by employees\n            of The Mining Company for the initial installation into\n            GlobalCenter's data center, and assisted by GlobalCenter TAMS if\n            necessary. For all servers moved to GlobalCenter at future dates, a\n            standard configuration will be established between the GlobalCenter\n            TAM, Sara, and Olga of the Mining Company.\n\n      (e)   Rebooting of Servers will be established based on either human or\n            automatic reboot procedures to be established at the Migration\n            meeting, prior to moving equipment to 60 Hudson.\n\n      (f)   Servers to be installed at the GlobalCenter Data center are: Index\n            server(s), Mail server(s), Net Gravity server(s), boards machine(s).\n            All machines migrated to the GlobalCenter Data center will be\n            cataloged by The Mining Company and GlobalCenter by serial number,\n            Brand name, and number of each type of server being moved.\n\n      (g)   GlobalCenter will be responsible for secondary DNS for The Mining\n            Company.\n\n      (h)   Back-up currently run every evening by The Mining Company.\n            GlobalCenter will run back-up on times agreed by The Mining Company\n            and the GlobalCenter TAM.\n\n      (i)   All specifics that were not covered in the above areas (a-h) will be\n            covered at length during the Migration Meeting. A thorough plan will\n            be in place before a single server is moved from The Mining\n            Company's office. A migration meeting will be set for a time that is\n            reasonable for both parties to discuss in depth all aspects of the\n            migration.\n\n\n\n      Items covered under Section Vlll. would be provided as additional services\n      with an associated additional cost, usually billed in number of TAM hours\n      used.\n\nVIII. GlobalCenter has the capability to provide value added services, such as;\n\n      - a content monitoring system\n      - server load-balancing\n      - server mirroring (Express Mirror is a Unix based product) \n      - mail system upgrades\n      - database replication consultancy etc.\n\n      These services are available upon request and execution of a service order\n      by MiningCo. This service will involve an extra cost to MiningCo.\n\n\n\n                          GLOBALCENTER Service Order #\n\n------------------------------------------------------------------------------\n\n                                                       Account Rep: Joe Bransom\nService Order Term:  1 year                            Sr. Account Executive\nDate:  1\/22\/97                             Office:     Global Center\nCustomer:  Ms. Olga Taller                             88 Pine Street\nCompany:  The Mining Company                           Suite 700\nAddress:  220 East 42nd Street                         New York, NY\nCity\/St\/Zip:  New York, NY 10017                       10005\nPhone:  914-328-4200                       Phone:      212-571-2000\nFAX:  914-328-4232                         FAX:        212-571-2036\nEmail:  olga@taller.net                    Email:      bransom@isi.net\n\n--------------------------------------------------------------------------------\n\nOne Time Fees:                   EXHIBIT #1\n\n\n\n---------------------------------------------------------------------------------------------\n Item\/Service                Description                Qty        Unit price         Total\n---------------------------------------------------------------------------------------------\n                                                                              \nInstallation      Provisioning of Bandwidth                                         $2,000.00\n---------------------------------------------------------------------------------------------\n100base-T         100base-T Fast Ethernet                                           $1,500.00\n---------------------------------------------------------------------------------------------\n                                                                        Total        $3500.00\n---------------------------------------------------------------------------------------------\n\n\nMonthly Recurring Fees:\n\n\n\n---------------------------------------------------------------------------------------------\n Item\/Service                Description                Qty        Unit price         Total\n---------------------------------------------------------------------------------------------\n                                                                              \nCo-location       (5)19' equipment racks in the New     5       $1300.00 for        $6,500.00\n                  York, NY facility                             the first (5)\n                                                                racks.  (See\n                                                                attachment for\n                                                                scaled price\n                                                                rate.)\n---------------------------------------------------------------------------------------------\nCommitted         Connection to a single                5       $1,000 per          $5,000.00\nBandwidth-T       100base-T.(5) Megabyte bandwidth              megabyte 5 Meg\n                  commitment                                    commited\n                                                                bandwidth.\n                                                                (See attachment\n                                                                for scaled\n                                                                price rate)\n---------------------------------------------------------------------------------------------\nProfessional      Technical Account management          2                           2 Months\nServices          Hours for simple programming          months                      no\n                  purposes.  (All TAM hours are         at                          charge.\n                  subject to Olga Tallers prior         no\n                  approval.  No TAM hours will be       charge\n                  used without the proper \n                  authorization.) GlobalCenter \n                  will give The Mining Company \n                  two (2) free months of TAM hours. \n                  Two months from the day the \n                  agreement is signed.\n---------------------------------------------------------------------------------------------\nScaled Pricing    See attachment for scaled pricing\n                  (All service orders signed during\n                  the length of the 1 year\n                  agreement will receive scaled\n                  pricing as outlined in the\n                  original proposal, dated January,\n                  22nd 1998).\n---------------------------------------------------------------------------------------------\n\n\nThis information (data) contained in this Service Order constitutes a trade\nsecret and\/or information that is commercial or financial and confidential or\nprivileged. It is furnished to the Buyer in confidence with the understanding\nthat it will not, without permission of the offeror, be used or disclosed other\nthan for internal evaluation purposes.\n\n\n\n\n\n---------------------------------------------------------------------------------------------\n Item\/Service                Description                Qty        Unit price         Total\n---------------------------------------------------------------------------------------------\n                                                                              \n                                                                  Monthly Total    $11,500.00\n                                                                                   ==========\n---------------------------------------------------------------------------------------------\n\n\n\n\n                          GLOBALCENTER Service Order #\n\n--------------------------------------------------------------------------------\n\n95th Percentile Rule\n\nEvery GlobalCenter customer purchases a certain amount of guaranteed bandwidth\non GC\/ISl's Internet Backbone per month for an entire year. We realize that\nthere are certain instances that your Web Site will burst over your purchased\namount of bandwidth. Therefore, we have devised a billing method to accommodate\nfor bandwidth burst over your subscribed amount using the '95th Percentile\nRule.'\n\nFirst of all, you will be billed monthly for the bandwidth you have committed to\neach month. GlobalCenter's SNMP bandwidth monitoring will sample (take a data\npoint reflecting how much bandwidth you are utilizing at that particular\ninstance) your Internet connection every 5 minutes and store those samples for a\nperiod of one month.\n\nAt the end of the month, all the data samples ABOVE the amount of bandwidth you\nhave committed to will be collected and then be sorted from highest to lowest\nand the top 5% will be discarded. The remaining data sample will then be\nreferred to as the '95th Percentile' number. This number will then be used as\nthe basis in computing the additional bandwidth rate for that particular month\nover what bandwidth you have already purchased.\n\nService Order subject to a GlobalCenter Master Service Agreement. Service Order\nserves as a Purchase Order when signed by an authorized representative. Please\nsend or FAX signed Service Order to the above address.\n\n\nAccepted by: \/s\/ Eric W. Bingham\n             ----------------------------\nPrinted Name: Eric W. Bingham                  Title: Vice President\nPO #:                                          Date: 1\/27\/98\n             ----------------------------      \n\n\n\n                 GLOBALCENTER Master Service Agreement No. ____\n\n--------------------------------------------------------------------------------\n\n            This Master Services Agreement (this 'Agreement') is entered into as\nthe 29th day of January, 1999 ('Effective Date') by and between the entity\nindicated on the Services Order form attached hereto, with an office at the\naddress listed on the Services Order Form, ('Client'), and GlobalCenter Inc., a\ncorporation with offices at 88 Pine Street, New York, New York.\n('GlobalCenter'), and describes the terms and conditions pursuant to which\nGlobalCenter shall license to Client certain Software and provide certain\nServices (as defined below).\n\n            In consideration of the mutual promises and upon the terms and\nconditions set forth below, the parties agree as follows\n\n1. NATURE OF AGREEMENT This is an Agreement for the provision by GlobalCenter of\nInternet connectivity services (the 'Bandwidth'), the lease of equipment to\nprovide such services (the 'Hardware'), the availability of space to store and\noperate such Hardware ('Space') and the licensing of software to provide such\nServices (the 'Software'), together comprising an Internet connectivity and\ncollocation package to be provided by GlobalCenter under this Agreement\n(together, the 'Services').\n\n2. SERVICE ORDERS\n\n2.1. Orders. Client may issue one or more service orders describing the\nBandwidth, Space, Hardware, and Software that Client desires ('Service Order').\nEach Service Order Exhibit I will set forth the prices, initial term of Services\nand other information in the form set forth in the Service Order Form. No\nService Order shall be effective until accepted by GlobalCenter. All Service\nOrders will be subject to the terms and conditions of this Agreement, and the\nterms of this Agreement shall supersede any terms and conditions which may\nappear on Client's order form, or purchase order unless GlobalCenter signs such\norder and thereby agrees to such amendment, in which event such amendment shall\nsupersede this agreement.\n\n2.2. Cancellation. In the event that Client cancels or terminates a Service\nOrder at any time for any reason whatsoever other than expiration of a Service\nOrder, a Service Interruption (as defined below), or after the first sixty (60)\ndays of the agreement, Client agrees to pay GlobalCenter a cancellation fee\nequaling two (2) months of the Monthly Recurring Charges specified in the\nService Order which shall become due and owing as of the effective date of\ncancellation or termination.\n\n2.3. IP Addresses. GlobalCenter may assign on a temporary basis a reasonable\nnumber of Internet Protocol Addresses ('IP Addresses') from the address space\nassigned to the GlobalCenter by InterNIC. Client acknowledges that the IP\nAddresses are the sole property of GlobalCenter are assigned to Client as part\nof the Service, and are not 'portable,' as such term is used by InterNIC.\nGlobalCenter reserves the right to change the IP Address assignments at any\ntime; however, GlobalCenter shall use reasonable efforts to avoid any disruption\nto Client resulting from such renumbering requirement. GlobalCenter will give\nClient reasonable notice of any such renumbering. Client agrees that it will\nhave no right to IP Addresses upon termination of this Agreement, and that any\nrenumbering required of Client after termination shall be the sole\nresponsibility of Client.\n\n\n                                                                               1\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nGlobalCenter acknowledges that GlobalCenter shall have no right in or to any\ndomain names, unique telephone numbers for access to clients services or similar\nproperties and in the event that GlobalCenter comes into possession of or has\nany interest in such rights, GlobalCenter shall hold such rights as the agent\nfor and irrevocably assign all such right to Client.\n\n3. SOFTWARE LICENSE AND RIGHTS\n\n3.1. License. During the term of the applicable Service Order, GlobalCenter\ngrants Client a nontransferable, nonexclusive license to use the Software in\nobject code form only, solely on the Hardware in conjunction with the Services.\nGlobalCenter acknowledges that Client Software shall be operating on the\nHardware and GlobalCenter shall have no right, title or interest thereto.\n\n3.2. Proprietary Rights. This Agreement transfers to neither client nor\nGlobalCenter title nor any proprietary or intellectual property rights to the\nSoftware, Hardware, documentation, or any copyrights, patents, or trademarks,\nembodied or used in connection therewith, except for the rights expressly\ngranted herein.\n\n3.3. License Restrictions. 3.4. Client and GlobalCenter agree that it will not\nitself, or through any parent, subsidiary, affiliate, agent or other third\nparty:\n\n3.4.1. copy the Software except as expressly allowed under this Agreement. In\nthe event Client makes any copies of the Software, Client shall reproduce all\nproprietary notices of GlobalCenter on any such copies;\n\n3.4.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive\nsource code from the Software;\n\n3.4.3. sell, lease, license or sublicense the Software or the documentation;\n\n3.4.4. write or develop any derivative software or any other software program\nbased upon the Software or any Confidential Information (as defined below); or\n\n3.4.5. use the Software to provide processing services to third parties, or\notherwise use the Software on a `service bureau' basis.\n\n4. HARDWARE TERMS AND CONDITIONS\n\n4.1. Installation. GlobalCenter will use commercially reasonable efforts to\ninstall the Hardware as the Hardware is shipped to GlobalCenter At Client's\nrequest, GlobalCenter will work with the Client on an installation plan to\ndefine installation time frame and requirements.\n\n4.2. Purchase and Title of Hardware. If so indicated on the Service Order,\nClient shall purchase the Hardware and deliver, at Client's expense, the\nHardware to the Space. GlobalCenter agrees that the Hardware may reside at the\nSpace during the term of this agreement and that the Hardware is and shall\nremain the property of the Client. GlobalCenter shall not have taken or\nattempted to take any right, title or interest therein or permit any third party\nto take an interest therein. GlobalCenter will not transfer, sell, assign,\nsublicense, pledge or otherwise dispose of, encumber or suffer a lien or\nencumbrance upon the Hardware or any interest in the Hardware. GlobalCenter\nshall not move the Hardware from the facility without Client's prior written\npermission.\n\n4.3. Lease of Hardware. If so indicated on the Service Order, Client shall lease\nthe Hardware, and GlobalCenter shall obtain and deliver to the Space the\nHardware. In the event Client leases the Hardware, the \n\n\n                                                                               2\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nfollowing terms and conditions shall apply: The Hardware is and shall remain the\nproperty of GlobalCenter. Client shall not have taken, or attempt to take, any\nright, title or interest therein or permit any third party to take any interest\ntherein. Client will not transfer, sell, assign, sublicense, pledge, or\notherwise dispose of, encumber or suffer a lien or encumbrance upon or against\nthe Hardware or any interest in the Hardware. Client will use the Hardware only\nat the Space. Client will not move the Hardware from that facility without\nGlobalCenter's prior written permission. Client shall be responsible for any\ndamage to the Hardware. Client will use the Hardware only for the purpose of\nexercising its rights under this Agreement.\n\n4.4. Rent to Own. If so indicated on the Service Order, Client shall lease the\nHardware on a 'rent to own' plan. In such event, all of the terms and conditions\nin Section 4.3 shall apply, and the following terms and conditions shall also\napply. At the end of the term of the Service Order, providing Client is not in\nbreach of this Agreement, Client shall have the option to purchase the Hardware.\nThe purchase price shall be as indicated on the Service Order. Upon payment by\nClient of the purchase price, title in the Hardware shall pass to Client at the\nSpace. Unless the Service Order is extended by mutual agreement, Client shall\nimmediately delete, or shall allow GlobalCenter to delete, all copies of the\nSoftware, associated documentation, or any other materials of GlobalCenter\nresident on the Hardware.\n\n5. SPACE\n\n5.1. License to Occupy. GlobalCenter grants to Client a nonexclusive license to\noccupy the Space. Client acknowledges that it has been granted only a license to\noccupy the Space and that it has not been granted any real property interests in\nthe Space.\n\n5.2. Material and Changes. Client shall not make any construction changes or\nmaterial alterations to the interior or exterior portions of the Space,\nincluding any cabling or power supplies for the Hardware, without obtaining\nGlobalCenter's prior written approval for Client to have the work performed.\nAlternatively, Client may request GlobalCenter to perform the work. GlobalCenter\nreserves the right to perform and manage any construction or alterations within\nthe Space areas at rates to be negotiated between the Parties hereto. Client\nagrees not to erect any signs or devices to the exterior portion of the Space\nwithout submitting the request to GlobalCenter and obtaining GlobalCenter's\nadvance written approval.\n\n5.3. Damage. Client agrees to reimburse GlobalCenter for all reasonable repair\nor restoration costs associated with damage or destruction caused by Client's\npersonnel, Client's agents, Client's suppliers\/contractors, or Client's visitors\nduring the term or as a consequence of Client's removal of the Hardware or\nproperty installed in the Space except for normal wear and tear or based upon\nactions taken by GlobalCenter.\n\n5.4. Insurance. Unless otherwise agreed. Client agrees to maintain, at Client's\nexpense, (i) Comprehensive General Liability Insurance in an amount not less\nthan One Million Dollars ($1,000,000) per occurrence for bodily injury or\nproperty damage, (ii) Employer's Liability in an amount not less than Five\nHundred Thousand Dollars ($500,000) per occurrence, and (iii) Worker's\nCompensation in an amount not less than that prescribed by statutory limits.\nPrior to taking occupancy of the Collocation Space, Client shall furnish\nGlobalCenter with certificates of insurance which evidence the minimum levels of\ninsurance set forth herein. Client shall also maintain insurance \n\n\n                                       3\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\ncovering Hardware or property owned or leased by Client against loss or physical\ndamage.\n\n5.5. Regulations. Client shall comply with and not violate all of GlobalCenter's\ngenerally accepted industry standards for safety, health and operational rules\nand regulations. Client's failure to comply with GlobalCenter's generally\naccepted industry standards for rules and regulations shall constitute a\nmaterial default under this Agreement. GlobalCenter may, in its sole discretion,\nlimit Client's access to a reasonable number of authorized Client employees or\ndesignees. Client shall not interfere with any other clients of GlobalCenter or\nsuch other clients' use of the Space.\n\n5.6. Disclaimer. GlobalCenter represents and warrants to Client that (i) the\nSpace meets the manufacturer's recommendations for the use of the equipment and\n(ii) shall meet the specifications set forth in Exhibit III hereto. Client\nhereby assumes any and all risks associated with Client, its agents or\nemployees' use of the Space and shall indemnify, defend and hold harmless\nGlobalCenter from any and all claims, liabilities, judgments, causes of action,\ndamages, costs, and expenses (including reasonable attorneys' and experts'\nfees), caused by or arising in connection with such use.\n\n6. SERVICE INTERRUPTIONS\n\n6.1. 99% Uptime Guarantee. In the event of Downtime (as defined below), the\nmonthly fee payable for the Services shall be reduced as follows:\n\n        6.1.1. if the total Downtime in the calendar month is more than two (2)\n        hours, but does not exceed four (4) hours, the monthly fee for that\n        month shall be reduced by one-third (33.3%);\n\n        6.1.2. if the total Downtime in the calendar month is more than four (4)\n        hours, but does not exceed eight (8) hours, the monthly fee for that\n        month shall be reduced by two-thirds (66.6%);\n\n        If the total Downtime in the calendar month is more than eight (8)\n        hours, the monthly fee for that month shall be waived.\n\nFor the purposes of this Section, Downtime shall mean any interruption of one\n(1) minute or more in the availability to users of any Web site residing on the\nHardware and made available through the Services, only if such interruption is\ndue to either (i) failure by GlobalCenter to manage a server anomaly as agreed\nin Exhibit II so as to avoid interruption in Web availability, or (ii) a\ndisruption in the connection between any such server and the Internet. For\npurposes of this Section. the Internet is deemed to consist of services that\ncommence where GlobalCenter transmits a Client's content to GlobalCenter's\ncarrier(s) at the GlobalCenter border router port(s). Such carriers provide\nGlobalCenter with private and dedicated bandwidth. GlobalCenter undertakes no\nobligation for the circuit or link between GlobalCenter's facilities and such\ncarrier's services. If router packet loss is excess of seventy percent (70%) and\nis sustained for sixty (60) seconds or more, GlobalCenter will classify this an\n'outage.' If an 'outage' continues for a time period of more than two (2)\nminutes, then such outage will be deemed Downtime.\n\n6.2. Investigation of Service Interruptions. GlobalCenter will investigate any\nreport of Downtime, and attempt to remedy any Downtime expeditiously.\nGlobalCenter reasonably \n\n\n                                                                               4\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\ndetermines that all facilities, systems and equipment furnished by GlobalCenter\nare functioning properly, and that Downtime arose from some other cause.\nGlobalCenter reserves the right to recover labor and materials cost for services\nactually performed at the usual and customary rates for similar services\nprovided by GlobalCenter to clients in the same locality.\n\n6.3. Termination. Client may terminate a Service Order in the event of Downtime\nof either twenty-four (24) hours of cumulative time during any continuous twelve\n(12) month period, or any continuous Downtime of eight (8) hours or more.\n\n6.4. Sole Remedy. The terms and conditions of this Section 6 shall Client's sole\nremedy and GlobalCenter's sole obligation for any Downtime.\n\n7. USER CONTENT GlobalCenter acknowledges that GlobalCenter shall have no right,\ntitle or interest in or to any of the services, any postings, data or\ntransmission using the services (the 'Content'). Disruptions include without\nlimitation distribution of unsolicited advertising or chain letters, repeated\nharassment of other network users, wrongly impersonating another such user,\nfalsifying one's network identity for improper or illegal purposes, sending\nunsolicited mass e-mailings, propagation of computer worms and viruses, and\nusing the network to make unauthorized entry to any other machine accessible via\nthe network. If GlobalCenter has reasonable grounds to believe that Client or a\nUser is utilizing the Services for any such illegal or disruptive purpose,\nGlobalCenter may suspend or terminate Services immediately upon notice to Client\nprovided that GlobalCenter shall attempt to give client reasonable notice of\nsuch problem and an opportunity to cure. Client shall defend, indemnify, hold\nharmless GlobalCenter from and against all liabilities and costs (including\nreasonable attorney's fees) arising from any and all claims by any person\narising out of Client's use of the Services, including without limitation any\ncontent.\n\n8. PRICING AND PAYMENT TERMS\n\n8.1. Payment Terms. Client shall pay the fees set forth in the Services Order\nForm according to the terms set forth therein. Client agrees to pay a late\ncharge of one percent (1%) above the prime rate as reported by the Wall Street\nJournal at the time of assessment or the maximum lawful rate, whichever is less,\nfor all undisputed amounts not paid within thirty (30) days of receipt of\ninvoice.\n\n8.2. Late Payments. In the event of non-payment by Client of sums over-due\nhereunder for more than sixty (60) days, GlobalCenter may upon written notice to\nClient request Client to remove equipment from GlobalCenter's premises within\nten (10) days. If Client fails to so remove, GlobalCenter may deliver the\nequipment to Client at the latter's address for notices at Client's expense for\nshipment and insurance, and Client shall be obligated to accept such delivery.\n\n8.3. Price Increases. GlobalCenter shall not increase the prices for services\nduring the initial term of any Service Order. Pricing for additional service is\nspecified in Exhibit III.\n\n9. MAINTENANCE AND SUPPORT. GlobalCenter shall provide Client with maintenance\nand support Software and Hardware, if any ('Maintenance and Support') as\nspecified in Exhibit II.\n\n9.1. Exclusions. Maintenance and Support shall not include services for problems\narising out of (a) modification, \n\n\n                                                                               5\n\n\nalteration or addition or attempted modification, alteration or addition of the\nHardware or Software undertaken by persons other than GlobalCenter or\nGlobalCenter's authorized representatives. Client Duties. Client shall document\nand promptly report all errors or malfunctions of the Hardware or Software to\nGlobalCenter. Client shall take all steps necessary to carry out procedures for\nthe rectification of errors or malfunctions within a reasonable time after such\nprocedures have been received from GlobalCenter. Client shall maintain a current\nbackup copy of all programs and data. Client shall properly train its personnel\nin the use and application of the Hardware and Software.\n\n10. TERM AND TERMINATION\n\n10.1. Term. The term of this Agreement shall commence on the Effective Date and\ncontinue indefinitely terminated in accordance with this Section 10. At the end\nof the initial term, the agreement will be automatically extended on month to\nmonth basis and can be canceled by either party with ninety (90) days written\nnotice.\n\n10.2. Termination Upon Default. Either party may terminate this Agreement in the\nevent that the other party materially defaults in performing any obligation\nunder this Agreement and such default continues unremedied for a period of\nthirty (30) days following written notice of default. In the event this\nAgreement is terminated due to GlobalCenter's breach, GlobalCenter shall refund\nto Client any Services fees on a straight line prorated basis.\n\n10.3. Termination Upon Insolvency. This Agreement shall terminate, effective\nupon delivery of written notice by a party, (i) upon the institution of\ninsolvency, receivership or bankruptcy proceedings or any other proceedings for\nthe settlement of debts of the other party; (ii) upon the making of an\nassignment for the benefit of creditors by the other party; or (iii) upon the\ndissolution on of the other party.\n\n10.4. Effect of Termination. The provisions of Sections 1, 2.3, 3.2, 3.3, 7,\n10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. All other\nrights and obligations of the parties shall cease upon termination of this\nAgreement. The term of any license granted hereunder shall expire upon\nexpiration or termination of this Agreement\n\n11. CONFIDENTIAL INFORMATION. All information identified disclosed by either\nparty ('Disclosing Party') to the other party ('Receiving Party'), if disclosed\nin writing, labeled as proprietary or confidential, or if disclosed orally, or\nthrough access to the services of the type of information which would normally\nbe deemed to be confidential ('Confidential Information') shall remain the sole\nproperty of Disclosing Party. Except for the specific rights granted by this\nAgreement, Receiving Party shall not use any Confidential Information of\nDisclosing Party for its own account. Receiving Party shall use the highest\ncommercially reasonable degree of care to protect Disclosing Party's\nConfidential Information. Receiving Party shall not disclose Confidential\nInformation to any third party without the express written consent of Disclosing\nParty (except solely for Receiving Party's internal business needs, to employees\nor consultants who are bound by a written agreement with Receiving Party to\nmaintain the confidentiality of such Confidential Information in a manner\nconsistent with this Agreement who or which are actually working on the project\non a need to know basis and such Party shall not distribute any reports or other\ninformation with respect to or which contain the other Party's Confidential\nInformation to any other\n\n\n                                                                               6\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nemployees, consultants or otherwise, without the prior written consent of the\nParty which owns such Confidential Information). Confidential Information shall\nexclude information (i) available to the public other than by a breach of this\nAgreement; (ii) rightfully received from a third party not in breach of an\nobligation of confidentiality; (iii) independently developed by Receiving Party\nwithout access to Confidential Information; (iv) known to Receiving Party at the\ntime of disclosure; or (v) produced in compliance with applicable law or a court\norder, provided Disclosing Party is given reasonable notice of such law or order\nand an opportunity to attempt to preclude or limit such production. Subject to\nthe above, Receiving Party agrees to cease using any and all materials embodying\nConfidential Information, and to promptly return such materials to Disclosing\nParty upon request.\n\n12. LIMITATION OF LIABILITY GLOBALCENTER'S LIABILITY FOR ALL CLAIMS ARISING OUT\nOF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO\nGLOBALCENTER UNDER THIS AGREEMENT. IN NO EVENT SHALL GLOBALCENTER BE LIABLE FOR\nANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL,\nCONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT\nOR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF\nLIABILITY. THIS LIMITATION WILL APPLY EVEN IF GLOBALCENTER HAS BEEN ADVISED OR\nIS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.\n\n13. DISCLAIMER OF WARRANTIES EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,\nGLOBALCENTER SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING\nBUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A\nPARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY\nGLOBALCENTER HEREUNDER.\n\n14. MISCELLANEOUS\n\n14.1. Independent Contractor. The relationship of GlobalCenter and Client\nestablished by this Agreement is that of independent contractors, and nothing\ncontained in this Agreement shall be construed to (i) give either party the\npower to direct and control the day-to-day activities of the other; (ii)\nconstitute the parties as partners, joint ventures, co-owners or otherwise as\nparticipants in a joint undertaking; or (iii) allow either party to create or\nassume any obligation on behalf of the other party for any purpose whatsoever.\n\n14.2. Notices. Any notice required or permitted hereunder shall be in writing\nand shall be given by registered or certified mail addressed to the addresses\nfirst written above. Such notice shall be deemed to be given upon the earlier of\nactual receipt or three (3) days after it has been sent, properly addressed and\nwith postage prepaid. Either party may change its address for notice by means of\nnotice to the other party given in accordance with this Section.\n\n14.3. Assignment. Client or GlobalCenter may not assign this Agreement, in whole\nor in part, either voluntarily or by operation of law without written consent of\neither party, and any attempt to do so shall be a material default of this\nAgreement and shall be void. Notwithstanding the foregoing, Client may assign\nsuch right in conjunction with a sale of all or substantially all of its assets,\na \n\n\n                                                                               7\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nmerger, consolidation or similar transaction without GlobalCenter's consent\nprovided that such assignment is not to a direct competitor of GlobalCenter or\nto an entity which is not in good financial standing with or in litigation with\nGlobalCenter In the event an assignment is contemplated, per the provisions of\nthe foregoing sentence, client shall notify GlobalCenter of such assignment\nprior to its effect or such assignment shall be null and void.\n\n14.4. Governing Law. This Agreement shall be interpreted according to the laws\nof the State of New York without regard to or application of choice-of-law rules\nor principles. The parties hereby agree to the exclusive jurisdiction of the\nstate and federal courts located in New York, NY.\n\n14.5. Entire Agreement and Waiver. This Agreement shall constitute the entire\nagreement between GlobalCenter and Client with respect to the subject matter\nhereof and all prior agreements, representations, and statement with respect to\nsuch subject matter are superseded hereby, including without limitation any\nnon-disclosure agreement previously executed between the parties. This Agreement\nmay be changed only by written agreement signed by both GlobalCenter and Client.\nNo failure of either party to exercise or enforce any of its rights under this\nAgreement shall act as a waiver of subsequent breaches; and the waiver of any\nbreach shall not act as a waiver of subsequent breaches.\n\n14.6. Severability. In the event any provision of this Agreement is held by a\ncourt of other tribunal of competent jurisdiction to be unenforceable, that\nprovision will be enforced to the maximum extent permissible under applicable\nlaw, and the other provisions of this Agreement will remain in full force and\neffect.\n\n14.7. Non-Solicitation. During the term of this agreement and for a period of\none (1 ) year thereafter neither the Client nor GlobalCenter shall not solicit,\nnor attempt to solicit the services, of any employee or subcontractor of\nGlobalCenter without the prior written consent of GlobalCenter\n\n14.8. Substitution. GlobalCenter may substitute, change or modify the Software\nor Hardware at any time, but shall not thereby alter the technical parameters of\nthe Services.\n\nGlobalCenter                            Client\n\n\n\/s\/ Thomas Alvary                       \/s\/ Eric W. Bingham\n----------------------------            ----------------------------\nBy: Thomas Alvary                       By: Eric W. Bingham\nTitle: VP Sales                         Title: Vice President \n                                               Business Operations\n\n\n                                                                               8\n\n\n                GLOBALCENTER Master Service Agreement No. ____\n\n------------------------------------------------------------------------------\n\nSERVICE SPECIFICATION\n\nCollocation Service\n\nGlobalCenter will provide a level of service which includes the following\nfeatures and options:\n\nGeneral Features:\n\nMaintenance of the Space (including Janitorial Services):\n\nIn connection with the Space made available hereunder, GlobalCenter or its\nlandlord shall perform services that support the overall operation of each Space\nat no additional charge to Client. Those services include the following\n\n* Janitorial Services\n* 24 x 7 Access to the Space\n* Authorized Security System Access to Raised Floor Collocation Space \n* Primary A\/C 110 volt Power to the Space\n* Backup Power- UPS Systems &amp; Battery Plant (30 - 60 minute survivability\nobjective)\n* Generator Back-up (Sustained backup power)\n* HVAC Systems for facility air conditioning\n* Fire Control Systems\n* Network Monitoring Systems\n* Redundant Network Connectivity and Hardware\n* 19' Rack Spaces for installation of Hardware\n* 10-base-T or 100-base-T switched port with direct high speed Internet backbone\nconnection.\n\n24x7 NOC support: Will provide proactive site monitoring with ExpressLane(TM)\nstatistics on Client information base; including bandwidth usage, statistics and\nnetwork availability reporting, host monitoring and management interface, access\nto GlobalCenter incident tracking system to expedite fault resolution and remote\nserver reboot.\n\n24x7 console access: GlobalCenter facilities in Sunnyvale and Herndon will\nprovide systems which allow Clients access to a terminal with a connection to\nservers inside the Data Centers.\n\nGlobalCenter Escalation Plan and Procedures: To be provided in the GlobalCenter\nWelcome Package 5-10 days after contract signing.\n\nRight-of-Way and Access:\n\nGlobalCenter will allow 24 x 7 access and right-of-way to Client Hardware\nlocated in GlobalCenter facility at no charge. Clients will be escorted at all\ntimes while in the facility. Access to the facilities will not be unreasonably\nbe withheld by GlobalCenter to Clients for performing appropriate procedures and\nmaintenance of Hardware, facilities, and systems.\n\n\n                                                                               9\n\n\nSERVICE ORDER # 8.0            SERVICE ORDER TERM:            12 MONTHS\nMSA # 1.0                      SERVICE ORDER DATE:            01\/29\/99\nSite Express                   Estimated Install Date:        1\/25\/98\n\n--------------------------------------------------------------------------------\n\nPrimary Contact:   Eric Bingham            Contact:  Joe Bransom\nSecondary Contact: Sara Plath                        Account Executive\nCompany:           MiningCo.com, Inc.      Address:  Frontier GlobalCenter, Inc.\nAddress:           220 East 42nd Street              188 Pine Street\n                                                     New York, NY 10005\nCity\/St\/Zip:       New York, NY            Phone:    212-618-9608\nPhone:             212-849-2012            FAX:      212-571-2000\nFAX:                                       Pager:    800-963-5881\nPager:                                     Cell:     917-907-1874\nEmail:             ebingham@miningco.com   Email:    bransom@globalcenter.net\n\n--------------------------------------------------------------------------------\n\nSite Express One Time Installation Fees:\n\n\n\n--------------------------------------------------------------------------------------------\n   Item #                    Description               Qty.      Unit price         Total\n--------------------------------------------------------------------------------------------\n                                                                           \n1                  Port Installation:                   1        $750               $0.00\n\n                   Dedicated Switched 10Mbps Ethernet \n                   port on Frontier GlobalCenter Cisco \n                   Catalyst 5500 switch.\n--------------------------------------------------------------------------------------------\n2                  Co-location Installation:            1        $0.00              $0.00\n\n                   7' x 19' Rack Unit w\/ 20 amps power\n--------------------------------------------------------------------------------------------\n3                  Technical Account manager (TAM)      2        $200\/Hour          $0.00\n                   Installation Per Server,\n                   Application and\/or device:\n\n                   Installation includes IP address\n                   allocation, customized monitoring\n                   procedure setup, Express Control\n                   and KickStart Remote Reboot setup,\n                   hardware and software installation\n                   and setup.  $200 Per Hour for all\n                   installations occurring during\n                   non-standard business hours\n                   (8AM-6PM Monday through Friday)\n                   and\/or less than 72 Hours\n                   notification.\n--------------------------------------------------------------------------------------------\n                                                               One Time Total       $0.00\n--------------------------------------------------------------------------------------------\n\n\nSite Express Monthly Recurring Fees:\n\n\n\n--------------------------------------------------------------------------------------------\n   Item #                    Description               Qty.      Unit price         Total\n--------------------------------------------------------------------------------------------\n                                                                           \n1                  Committed Bandwidth:                 9        $800               $7,200\n\n                   Guaranteed dedicated switched\n                   xMbps bandwidth to the Frontier\n                   GlobalCenter backbone via Cisco\n                   Catalyst 550 switch\n--------------------------------------------------------------------------------------------\n1A                 Burstable Bandwidth:                 x        $1000              TBD\n\n                   Bandwidth above the committed\n                   XMbps determined and billed via\n                   the 95th Percentile Rule\n--------------------------------------------------------------------------------------------\n\n\n\n                                                                              10\n\n\nSERVICE ORDER # 8.0            SERVICE ORDER TERM:            12 MONTHS\nMSA # 1.0                      SERVICE ORDER DATE:            01\/29\/99\nSite Express                   Estimated Install Date:        1\/25\/98\n\n--------------------------------------------------------------------------------\n\n\n--------------------------------------------------------------------------------------------\n                                                                           \n2                  Co-location:                         24       $800               $19,200\n\n                   Full Rack:  7' x 19' Rack w\/20\n                   amps power.\n--------------------------------------------------------------------------------------------\n3                  Technical Account Manager (TAM)      x        $150 Per Hour      TBD\n                   Consulting Time:\n\n                   Pre-contracted time billed at $150\n                   per hour during standard business\n                   hours (8AM-6PM Monday through\n                   Friday excluding major holidays).\n                   All non-standard business and non\n                   contracted hours billed at $200\n                   per hour.\n--------------------------------------------------------------------------------------------\n                                                   Monthly Recurring Total          $26,400\n--------------------------------------------------------------------------------------------\n\n\nThis information (data) contained in this Service Order is confidential and\nproprietary information, and contains trade secrets and other privileged\ninformation. It is furnished to the Buyer in confidence and upon the condition\nthat it be used only for internal evaluation purposes, and not divulged or\ndisclosed to third parties without the written consent of Frontier GlobalCenter.\nTerms outlined in this Service Order\/Quote\n\n\n                                                                              11\n\n\nSERVICE ORDER # 8.0            SERVICE ORDER TERM:            12 MONTHS\nMSA # 1.0                      SERVICE ORDER DATE:            01\/29\/99\nSite Express                   Estimated Install Date:        1\/25\/98\n\n--------------------------------------------------------------------------------\n\n95th Percentile Rule\n\nEvery GlobalCenter client purchases a certain amount of guaranteed bandwidth on\nGC\/ISl's Internet Backbone per month for an entire year. We realize that there\nare certain instances that your Web Site will burst over your purchased amount\nof bandwidth. Therefore, we have devised a billing method to accommodate for\nbandwidth burst over your subscribed amount using the '95th Percentile Rule.'\n\nFirst of all, you will be billed monthly for the bandwidth you have committed to\neach month. GlobalCenter's SNMP bandwidth monitoring will sample (take a data\npoint reflecting how much bandwidth you are utilizing at that particular\ninstance) your Internet connection every 5 minutes and store those samples for a\nperiod of one month.\n\nAt the end of the month, all the data samples ABOVE the amount of bandwidth you\nhave committed to will be collected and then be sorted from highest to lowest\nand the top 5% will be discarded. The remaining data sample will then be\nreferred to as the '95th Percentile' number. This number will then be used as\nthe basis in computing the additional bandwidth rate for that particular month\nover what bandwidth you have already purchased.\n\nService Order subject to a GlobalCenter Master Service Agreement. Service Order\nserves as a Purchase Order when signed by an authorized representative. Please\nsend or FAX signed Service Order to the above address.\n\n\nAccepted by: \/s\/ Eric W. Bingham\n             ----------------------------\nPrinted Name: Eric W. Bingham                  Title: Vice President\n                                                      Business Operations\nPO #:                                          Date: 1\/29\/99\n             ----------------------------           \n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6551],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42561","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-aboutcom-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42561","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42561"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42561"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42561"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42561"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}