{"id":42597,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/network-access-agreement-psinet-inc-and-earthlink-network-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"network-access-agreement-psinet-inc-and-earthlink-network-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/network-access-agreement-psinet-inc-and-earthlink-network-inc.html","title":{"rendered":"Network Access Agreement &#8211; PSINet Inc. and Earthlink Network Inc."},"content":{"rendered":"<pre>\n                           NETWORK ACCESS AGREEMENT\n\n\nPSINet Inc.               Purchaser: EarthLink Network, Inc.\n510 Huntmar Park Drive         3100 New York Drive\nHerndon, VA 22070              Pasadena, CA 91107\n703.904.4100                   818.296.2400\n703.904.4200 (fax)             818.296.4161 (fax)\n\nBusiness Contact:              Contact: Garry Betty\nPhone\/Fax:                     Phone\/Fax: 818 296 2408\nBusiness Contact:              Business Contact: Same\nTitle\/Phone\/Fax:               Title\/Phone\/Fax: President\/CEO, fax 818 296 4161:\n\n\nTHIS AGREEMENT is made between PSINet Inc., a corporation incorporated under \nthe laws of the State of New York and having its principal place of business \nat 510 Huntmar Park Drive, Herndon, Virginia 22070 (\"PSINet\"), and the \nwholesale customer of PSINet's wide-area computer network system (\"EarthLink\" \nor \"Purchaser\") as specified above.\n\nWITNESSETH:\n\nWHEREAS, Purchaser desires to obtain from PSINet network access for the \nbenefit of Purchaser's customers desiring access at speeds up to 128Kbps \n(hereinafter, \"Customers\"); and\n\nWHEREAS, PSINet is willing and able to provide such access;\n\nNOW, THEREFORE, in consideration of the mutual promises and covenants \ncontained herein, the parties agree, intending to be legally bound, as \nfollows:\n\n1.      DEFINITIONS. The following terms shall have the following meanings for\n        purposes of this Agreement and for purposes of the Exhibits hereto:\n\n1.2     \"HOST\" shall mean a computer with a Network address (IP address).\n\n1.3     \"NETWORK\" shall mean the combination of computer hardware, computer \n        software programs and data transmission facilities operated by PSINet\n        which will permit computers operated by Purchaser's Customers to\n        communicate with\n\n- --------------------------------------------------------------------------------\nPSINet\/EarthLink\nNetwork Access Agreement           Page: 1                               7\/24\/96\n\n\n* - Redacted Material subject to Confidential Treatment Application\n\n\n\n\n\n        computers at remote locations which are operated by others and to \n        provide access to Internet.\n\n1.4     \"POP\" shall mean a Network point-of-presence where PSINet equipment \n        will be located and these POPs will be positioned throughout the world\n        in order to permit authorized users to access the Network by telephone.\n\n1.5     \"PSINET CUSTOMER\" will be EarthLink's non-dedicated \n        (non-static-addressed) or non-LAN dial-up customers designated by\n        EarthLink as having their principal dial-up access through PSINet's\n        dial-up network in the U.S. and Canada.\n\n1.6     \"NON-PSINET CUSTOMER\" will be EarthLink's dial-up customers \n        designated by EarthLink as having their principal dial-up access\n        through another network than PSINet's, whether it be EarthLink's own\n        network, or another of EarthLink's network vendors.\n\n1.7     \"CUSTOMER\" will be a customer of EarthLink, whether a \"PSINet \n        Customer\" or \"Non-PSINet Customer\".\n\n2.      INTERNET CONNECTION SERVICES.\n\n2.1     GENERAL. PSINet agrees to provide Purchaser with dialup (also call \n        \"switched\") telephone connection services for Purchaser's Customers to\n        access the Network and the Internet. Purchaser and its Customers may\n        access the Network from any PSINet POP in the United States and Canada.\n        The fees to be paid by Purchaser to PSINet for such access services are\n        set forth in Section 5.1.\n\n2.2     PROVISION OF ACCESS. Throughout the term of this Agreement, PSINet\n        shall provide Purchaser's Customers with the right to access at \n        speeds up to 128 Kbps using standard telephone and ISDN lines, and \n        use its Network at the levels then provided and supported by PSINet\n        (\"Access\"). A recent estimated listing of Network POPs can be retrieved\n        by sending electronic mail at 'pop-info@psi.com' or through access to \n        PSINet's world-wide web site at 'http:\/\/www.psi.net'. PSINet reserves \n        the right to install new POPs and\/or to close existing POPs as it, in \n        its sole discretion, deems appropriate. In the event PSINet deems it \n        necessary to close an existing POP, PSINet shall provide Purchaser with\n        sixty (60) days written notice thereof. Purchaser may order such Access\n        on behalf of its present or future Customers and there shall be no \n        limit on the number of Customers who may use the Network; provided, \n        however, subject to the Service Level Agreement in Section 3.7 that \n        PSINet may refuse service to Purchaser because there is insufficient \n        capacity on the Network or in the POP to provide the Access amount \n        requested.\n\n2.2.1   TERMINATION OF ACCESS. PSINet shall terminate the Access rights of \n        any Purchaser Customer as soon as is reasonably practicable upon written\n        notice from Purchaser to do so or upon mutually agreed upon electronic\n        process with receipt confirmed, but shall have no liability in\n        connection therewith.\n\n- --------------------------------------------------------------------------------\nPSINet\/EarthLink\nNetwork Access Agreement           Page: 2                               7\/24\/96\n\n\n\n\n2.2.2   ISDN SERVICE. PSINet shall make ISDN 64k and 128k Internet connection \n        services available to Purchaser for Purchaser's dial-up customers. The\n        fees to be paid by Purchaser for such services are set forth in Section\n        5.1.\n\n3.      PURCHASER OBLIGATIONS.\n\n3.1     PURCHASER RESPONSIBILITY FOR ITS CUSTOMERS. Purchaser shall be \n        responsible for all Customer support, pricing and service plans, billing\n        and collections with respect to its own Customers.\n\n3.2     PURCHASER CONNECTION TO THE NETWORK. Purchaser may provide, at its \n        own expense, the telecommunications circuit for its connection to the\n        Network which shall run between the best suited PSINet POP (as\n        determined by PSINet) and the Purchaser's operations center (which\n        includes the local telephone company or Competitive Access Provider\n        circuits). In addition, Purchaser may provide an estimate of the traffic\n        it anticipates between Purchaser's network and PSINet's Network.\n\n3.3     [INTENTIONALLY LEFT BLANK]\n\n3.4     [INTENTIONALLY LEFT BLANK]\n\n3.5     CUSTOMER EQUIPMENT. PSINet shall not be responsible for the \n        installation, operation or maintenance of any computer equipment or\n        computer software programs used by any Purchaser Customer.\n\n3.6     OPTIONAL PEERING. In addition to the connection of Purchaser's \n        network and PSINet's Network as set forth in Section 3.2, Purchaser may,\n        but shall not be obligated to, provide telecommunications circuits\n        interconnecting Purchaser's network with PSINet's network at a location\n        agreed upon by the parties and, from time to time, in other locations.\n        The parties will use these circuits only for traffic originating within\n        one party's network (or the networks of its Customers) and destined only\n        to the other party's network (or the networks of its Customers).\n\n3.7     SERVICE LEVEL AGREEMENT. Purchaser will maintain a 90 day rolling \n        forecast of predicted PSINet Customers at each POP, and provide this\n        forecast to PSINet as requested. This forecast will include comparative\n        historical numbers as they become available. Except as set forth in the\n        section below, Purchaser will have no liability for the inaccuracy of\n        this forecast.\n\n        The number forecasted at each POP 60 days prior to a given day will \n        give rise to mutual obligations for that day at that POP as follows:\n\n             1. If the number of actual PSINet Customers for a given POP on a \n                given day is greater than 110% of the number forecasted, no\n                penalty or Service Level Agreement (\"SLA\") applies.\n\n- --------------------------------------------------------------------------------\nPSINet\/EarthLink\nNetwork Access Agreement           Page: 3                               7\/24\/96\n\n\n\n\n             2. If the number of PSINet Customers on a given day is less than \n                90% of the number forecasted, Purchaser will pay a penalty of *%\n                above the applicable fees for that POP for that day.\n\n             3. For each POP where neither 1 nor 2 applies, PSINet will be \n                required to provide 99.5% availability for dial-in-access. For\n                each day less than 99.5% availability is provided, Purchaser\n                will be credited *** ********** ********* ***** ****** *** ****\n                ****** ******** ******** ********* ******* ** **** ***. For\n                example, if on April 2, 1997 Purchaser forecasted that there\n                would be 910 PSINet Customers on the Smalltown POP, and the\n                actual number of PSINet Customers on the Smalltown POP on \n                June 1, 1997 were 1000, and the total number of PSINet\n                Customers on June 30, 1997 were 155,001, and the availability of\n                Smalltown POP fell below 99.5% on June 1, 1997, Purchaser would\n                be credited ***** * ******* ** ******* for that service lapse.\n\n        Purchaser will provide at least 60 days' notice if it decides to \n        build a POP to service existing PSINet Customers in a particular city,\n        provided the existing PSINet Customers for that POP exceed 5,000\n        customers.\n\n4.      PSINET OBLIGATIONS.\n\n4.1     QUALITY OF SERVICE. PSINet shall provide to Purchaser (for its \n        Customers) Internet connection services that meet reasonable commercial\n        standards, including, without limitation, with respect to accessibility,\n        latency, packet loss, and throughput. For example, PSINet shall maintain\n        throughput of 80% of nominal port speed (e.g. 23 Kbps for a 28.8 Kbps\n        connection, 51 Kbps for a 64 Kbps single ISDN connection) 90% of the\n        time. PSINet shall keep and maintain its Network in good condition and\n        repair. The Network shall be properly maintained, serviced and upgraded\n        by PSINet as it, in its sole discretion, shall determine is necessary in\n        order to ensure connectivity to Purchaser Customers.\n\n4.1.1   REPORTS AND INFORMATION REGARDING SERVICE.\n\n4.1.1.1 ACCESS TO NETWORK MONITORING SYSTEMS. PSINet shall provide Purchaser \n        with read-only access to all applicable network monitoring systems used\n        by PSINet to monitor its network. Such access will permit Purchaser to\n        determine availability at each POP.\n\n4.1.1.2 PSINET NETWORK OUTAGES. PSINet shall provide to Purchaser prompt \n        notification of any PSINet network outages that affect Purchaser's \n        Customers. When possible, at least three days advance notice of planned\n        outages shall be given to Purchaser so that Purchaser's Customers may be\n        alerted.\n\n4.1.1.3 SNMP ACCESS. PSINet shall provide to Purchaser SNMP access to \n        PSINet's Network (i.e., direct read-only access to the dialup equipment,\n        as well as, if\n\n\n* - Redacted Material subject to Confidential Treatment Application\n\n- --------------------------------------------------------------------------------\nPSINet\/EarthLink\nNetwork Access Agreement           Page: 4                               7\/24\/96\n\n\n\n\npossible, the devices used to provide backbone transport) with respect to \nPurchaser's dial-up Customers, as soon as such access is practicable.\n\n4.1.1.4  TECHNICAL INTERCONNECT. PSINet will develop a means to allow PSINet \nCustomers to be authenticated via Purchaser's RADIUS serves in Purchaser's \ndata center. PSINet Customers will be set up by Purchaser to log into \nPSINet's network with an \"ELN\/\" in front of their username.\n\nPSINet will provide real-time monitoring capabilities for Purchaser's \ntechnical and support staff to track access of PSINet Customers on PSINet's \nnetwork. PSINet will provide 24X7 NOC-to-NOC support for Purchaser.\n\n5.  PRICE AND PRICING TERMS.\n\n5.1  CHARGES.  Purchaser will pay PSINet the applicable monthly fee for each \nPSINet Customer who has access to PSI's network during a particular month. \nWhere the PSINet Customer did not have access for the entire month, the \nmonthly fee will be prorated. Where the PSINet Customer has signed up AND \ncanceled Purchaser's service within an initial 30 day period, no monthly fee \nwill be due PSINet for that PSINet Customer.\n\nIn addition to PSINet Customers, Purchaser will have customers who use \nPurchaser's own dial-up TCP\/IP network or other networks provided by vendors \nother than PSINet. Purchaser will make reasonable efforts to ensure that it \nsegregates customers to one network or another in a given billing month. \nHowever, for such Non-PSINet customers who access the PSINet network in a \ngiven month, PSINet will charge Purchaser $**** for each day such Non-PSINet \ncustomer accesses the PSINet network, but no more than the applicable flat \nmonthly rate for each PSINet Customer.\n\nFor each PSINet customer in the United States, monthly charges to Purchaser \nshall be based upon the number of PSINet Customers, calculated at the end of \neach month, as follows:\n\n      TIER       PRICE       VOLUME\n       A         ******      0-10,000\n       B         *****       10,001-125,000\n       C         *****       125,001 +\n\nFor each PSINet Customer in Canada, the monthly charge to the Purchaser will \nbe $**** more (U.S. dollars) than the price noted above. Canadian and US \nCustomers will count together cumulatively for the purpose of determining \nPurchaser's pricing tier above.\n\nThe minimum volume required to maintain Tier C pricing shall increase \naccording to the month from the period beginning April 30, 1997 until \nDecember 31, 1997, after which the minimum monthly volume necessary to \nmaintain Tier C pricing shall remain at 250,000 Customers.\n\n\n* - Redacted Material subject to Confidential Treatment Application\n\n\n                                      5\n\n\n\n\nMonth-ending Tier C minimum commitment table:\n\n<\/pre>\n<table>\n<caption>\n<p><s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n<s><br \/>\n4\/97        5\/97        6\/97        7\/97        8\/97        9\/97        10\/97        11\/97        12\/97<\/p>\n<p>135,000     145,000     155,000     170,000     185,000     190,000     210,000      230,000      250,000<\/p>\n<p><\/s><\/s><\/s><\/s><\/s><\/s><\/s><\/s><\/s><\/caption>\n<\/table>\n<p>The applicable base charges above are applied to all PSINet Customers<br \/>\nirrespective of the rate that previously was applied to<br \/>\neach group of Customers. That is, when the volume threshold for a certain<br \/>\ntier is reached, Purchaser shall be entitled to the pricing for that tier for<br \/>\nall PSINet Customers (e.g. at and below that tier volume).<\/p>\n<p>ISDN Service:  Charges will be the same as above for ISDN 64K connection<br \/>\nservices. Charges will be twice the 64K rate for 128K service.<\/p>\n<p>5.1.1  MOST FAVORED NATION.  PSINet commits that the pricing provided to<br \/>\nPurchaser will be at least as low as for comparable volume levels and similar<br \/>\nservices as that provided any other PSINet customer.<\/p>\n<p>5.2  ADJUSTMENTS TO BASE CHARGE.  When the number of PSINet Customers exceeds<br \/>\n500,000, PSINet and purchaser will begin good faith negotiations on new<br \/>\npricing terms.<\/p>\n<p>5.3  MINIMUM COMMITMENT: On January 1, 1997, Purchaser&#8217;s minimum monthly<br \/>\ncommitment to PSINet shall become $******* per month for each month of 1997.<br \/>\nThis minimum commitment will expire on December 31, 1997.<\/p>\n<p>5.4  TAXES. Purchaser shall be liable for and shall reimburse PSINet for all<br \/>\ntaxes and related charges however designated, imposed in connection with or<br \/>\narising from the provision of access to the PSINet network by Purchaser or<br \/>\nits Customers. This clause is intended to cover &#8220;per-subscriber&#8221; or<br \/>\n&#8220;per-byte&#8221; charges targeted at the Internet traffic of Purchaser or its<br \/>\ncustomers. These taxes will not include the following:<\/p>\n<p>         -Taxes on T1 or PRI local loop lines to PSINet POPs<br \/>\n         -Taxes on PSINet&#8217;s equipment or facilities<br \/>\n         -Taxes on PSINet&#8217;s dedicated data circuits<\/p>\n<p>5.5  INVOICES. PSINet shall invoice Purchaser monthly in arrears for all<br \/>\ncharges under this Agreement. Except where inapplicable per Section 5.9, all<br \/>\ninvoices will be payable within (30) days of receipt of invoice.<br \/>\nDelinquent payments are subject to a late payment charge at the annualized rate<br \/>\nof prime plus four percent computed monthly (4%), or portion thereof, of the<br \/>\namount due (but not to exceed the maximum lawful rate). In the event<br \/>\nPurchaser shall fail to pay PSINet any amount due under this Agreement for a<br \/>\nperiod of forty (40) days, PSINet, in addition to charging applicable<br \/>\ndelinquency fees, may discontinue providing to Purchaser and its Customers<br \/>\nupon seven (7) days&#8217; prior written notice to Purchaser. PSINet shall resume<br \/>\nproviding Access immediately upon receipt of <\/p>\n<p>* &#8211; Redacted Material subject to Confidential Treatment Application<\/p>\n<p>                                      6<\/p>\n<p>such payment, and in such event Purchaser shall pay PSINet a reasonable<br \/>\nreconnection fee. However, Purchaser shall not be deemed to be delinquent,<br \/>\nnor may access be terminated, until Purchaser has exhausted the line of<br \/>\ncredit described in Section 5.9<\/p>\n<p>5.6  CUSTOMER CHARGES.  Purchaser is solely responsible for establishing and<br \/>\ncollecting its Customer charges for services it offers its customers through<br \/>\nthe Network and for preparing and mailing invoices to its Customers.<br \/>\nPurchaser is responsible for payment of the total amounts invoiced it by<br \/>\nPSINet regardless of whether Purchaser is paid by its Customers.<\/p>\n<p>5.7  MARKETING REFERRALS.  Until January 1, 1997, PSINet will provide<br \/>\nPurchaser with the first opportunity to sell to all leads calling into PSINet<br \/>\ninquiring about or seeking the purchase of non-dedicated, dial up Internet<br \/>\naccess. At Purchaser&#8217;s discretion, such leads will be transferred<br \/>\ntelephonically directly to Purchaser&#8217;s telemarketing group, where Purchaser<br \/>\nwill attempt to sell the lead a dial-up access account. Purchaser will pay<br \/>\nPSINet a one-time bounty of $***** for each lead that signs up for services<br \/>\nand remains a paying customer for more than 60 days. By 30 days after the end<br \/>\nof each month, Purchaser shall provide PSINet an accounting of the number of<br \/>\nleads received and the number successfully converted into sign-ups, along<br \/>\nwith payment of applicable bounties.<\/p>\n<p>5.8  USAGE REPORTS.  PSINet will provide full usage reports at the end of<br \/>\neach day. These reports shall include detailed accounting of each Purchaser<br \/>\nnetwork customer (PSINet Customer or Non-PSINet Customer) login to PSINet&#8217;s<br \/>\nnetwork. Additionally, PSINet and Purchaser will work to set up a system<br \/>\nwhereby Purchaser can track usage (connects and disconnects) in real time.<\/p>\n<p>5.9  ADDITIONAL CONSIDERATION.  In exchange for Purchaser issuing to PSINet<br \/>\nthe sum of 200,000 warrants to purchase the same number of shares of common<br \/>\nstock of Purchaser (or the equivalent thereof to compensate for any changes<br \/>\nin the capital structure of Purchaser between the time of grant and the time of<br \/>\nexercise by PSINet, with 4 years to exercise), the exercise price to be the fair<br \/>\nmarket value at the time of grant, PSINet will provide the following credit<br \/>\nand rental facilities to Purchaser:<\/p>\n<p>         1. A credit line for Purchaser&#8217;s payables to PSINet hereunder<br \/>\naccording to these terms:<\/p>\n<p>         &#8211; Up to $5,000,000<br \/>\n         &#8211; Accruing interest at prime plus 4% per annum<br \/>\n           Applied to payables beyond the 30 day payment term described above<br \/>\n         &#8211; Balloon payment at the end of the initial term hereof<\/p>\n<p>         2. A commitment to a rental facility for $5,000,000 of equipment<br \/>\n(owned or leased by PSINet) for deployment in Purchaser&#8217;s network. Such<br \/>\nrental charges shall include all costs, such as service maintenance, and<br \/>\nshall be for equipment agreed to in advance by the parties.<\/p>\n<p>* &#8211; Redacted Material subject to Confidential Treatment Application<\/p>\n<p>                                      7<\/p>\n<p>                   The equipment shall be Sun servers, Ascend Max Hubs and<br \/>\n                   other network equipment. The maximum initial value of<br \/>\n                   assets being rented shall not exceed $5,000,000 in value.<\/p>\n<p>                   Rental agreement shall include Fair Market Value buyout<br \/>\n                   provisions, a 3-year term and an effective rate of not<br \/>\n                   more than prime plus 3% per annum.<\/p>\n<p>                   Monthly rental payments will be due beginning 30 days<br \/>\n                   after funding of Purchaser&#8217;s IPO, or February 1, 1997,<br \/>\n                   whichever is sooner.<\/p>\n<p>        Terms of Purchaser&#8217;s warrants shall include a term of 4 years;<br \/>\n        will provide for appropriate adjustments to the exercise price<br \/>\n        and number of shares which may be purchased in the event of stock<br \/>\n        splits, dividends and the like. In addition, PSINet shall receive<br \/>\n        registration rights in respect to the shares (the &#8220;Shares&#8221;) issuable<br \/>\n        upon the exercise of the Warrants as described in the attached<br \/>\n        Exhibit &#8220;A&#8221;. PSINet shall be entitled to receive financial<br \/>\n        information regarding the Company for so long as PSINet holds the<br \/>\n        Shares.<\/p>\n<p>6.      TERM\/EXTENSIONS\/TERMINATION. The term of this Agreement shall be two<br \/>\n        (2) years, commencing on August 1, 1996 and ending July 31, 1998,<br \/>\n        and, unless either party notifies the other in writing not less than<br \/>\n        one-hundred eighty (180) days prior to the end of the initial term or<br \/>\n        any extension thereof, this Agreement shall be automatically renewed<br \/>\n        annually thereafter for a period of one year. Notwithstanding the<br \/>\n        foregoing, such termination notice shall not be given by either party<br \/>\n        prior to December 31, 1997.<\/p>\n<p>        Either party may terminate this Agreement if such other party has<br \/>\n        materially breached this Agreement and has failed to cure such breach<br \/>\n        within thirty (30) days after receiving written notice of such<br \/>\n        breach; provided, however, that this notice period shall not apply to<br \/>\n        a termination by PSINet in accordance with the provisions of Section<br \/>\n        5.5.<\/p>\n<p>7.      WARRANTIES EXCLUDED. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PSINet<br \/>\n        MAKES NO WARRANTIES IN CONNECTION WITH ITS NETWORK OR THE PROVISION<br \/>\n        OF ACCESS AS CONTEMPLATED HEREIN, WHETHER WRITTEN OR ORAL, STATUTORY,<br \/>\n        EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF<br \/>\n        MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE<br \/>\n        OR USE. PURCHASER&#8217;S SOLE AND EXCLUSIVE REMEDY SHALL BE PSINET&#8217;S<br \/>\n        OBLIGATION TO ADJUST THE FEES PAYABLE BY PURCHASER AS SET FORTH<br \/>\n        ELSEWHERE HEREIN.<\/p>\n<p>8.      LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS<br \/>\n        AGREEMENT TO THE CONTRARY, THE PARTIES AGREE THAT NEITHER PARTY SHALL<br \/>\n        IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY<br \/>\n        ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,<br \/>\n        RELIANCE, PUNITIVE OR ANY OTHER DAMAGES OR FOR ANY LOST PROFITS OF ANY<\/p>\n<p>                                  Page: 8<\/p>\n<p>        KIND OR NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF,<br \/>\n        ARISING OUT OF THE PROVISION OF ACCESS OR IN ANY WAY ARISING OUT OF<br \/>\n        THIS AGREEMENT, WHETHER IN AN ACTION ARISING OUT OF BREACH OF<br \/>\n        CONTRACT, BREACH OF WARRANTY, DELAY, NEGLIGENCE, STRICT TORT<br \/>\n        LIABILITY, PATENT MATTERS OR ANY OTHER THEORY. NO ACTION OR<br \/>\n        PROCEEDING AGAINST EITHER PARTY MAY BE COMMENCED MORE THAN TWO YEARS<br \/>\n        AFTER THE SERVICES ARE RENDERED. THIS CLAUSE SHALL SURVIVE FAILURE OF<br \/>\n        AN EXCLUSIVE REMEDY. EITHER PARTY&#8217;S TOTAL LIABILITY FOR GROSS<br \/>\n        NEGLIGENCE DURING THE LIFETIME OF THIS AGREEMENT SHALL IN NO EVENT<br \/>\n        EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000) IN THE AGGREGATE.<\/p>\n<p>9.      INDEMNIFICATION OF PSINET.  Purchaser shall indemnify and hold<br \/>\n        harmless PSINet and PSINet&#8217;s directors, officers, employees, agents<br \/>\n        and advisors from and against any and all claims of other persons or<br \/>\n        entities arising out of material, data, information or other content<br \/>\n        transmitted by Purchaser Customers or other acts or omissions of<br \/>\n        Purchaser and\/or its Customers.<\/p>\n<p>10.     CONFIDENTIAL INFORMATION.<\/p>\n<p>10.1    Nondisclosure. If either party acquires Confidential Information of<br \/>\n        the other, such receiving party shall maintain the confidentiality of<br \/>\n        the disclosing party&#8217;s Confidential Information shall use such<br \/>\n        Confidential Information only for the purposes for which it is<br \/>\n        furnished and shall not reproduce or copy it in whole or in part,<br \/>\n        except for use as authorized in this Agreement. Confidential<br \/>\n        Information shall mean all information of the disclosing party which<br \/>\n        it treats as confidential or proprietary. Confidential Information<br \/>\n        shall not include information which is or hereafter becomes generally<br \/>\n        available to others without restriction or which is obtained by the<br \/>\n        receiving party without violating the disclosing party&#8217;s rights under<br \/>\n        this Article 10 or any other obligation of confidentiality. The terms<br \/>\n        and conditions of this Agreement shall constitute Confidential<br \/>\n        Information. The provisions in the Bilateral Nondisclosure Agreement<br \/>\n        executed between the parties on July 18, 1996 shall survive the<br \/>\n        execution and termination of this Agreement for any reason.<\/p>\n<p>10.2    Duration. With respect to all Confidential Information, the parties&#8217;<br \/>\n        rights and obligations under this Article shall remain in full force<br \/>\n        and effect following the termination of this Agreement.<\/p>\n<p>10.3    Ownership. All materials and records which constitute Confidential<br \/>\n        Information, other than service orders and copies of this Agreement,<br \/>\n        shall be and remain the property of, and belong exclusively to, the<br \/>\n        disclosing Party, and the receiving party agrees either to surrender<br \/>\n        possession of and turn over or to destroy all such Confidential<br \/>\n        Information which it may possess or control upon request of the<br \/>\n        disclosing party or upon the termination of this Agreement.<\/p>\n<p>                                  Page: 9<\/p>\n<p>10.4    Injunctive Relief. The parties acknowledge and agree that, in the<br \/>\n        event of a breach or threatened breach by any party of any provision<br \/>\n        of this Article 10, the other party will have no adequate remedy in<br \/>\n        money or damages and, accordingly, shall be entitled to an injunction<br \/>\n        against such breach. However, no specification in this Section of a<br \/>\n        specific legal or equitable remedy shall be construed as a waiver or<br \/>\n        prohibition against any other legal or equitable remedies in the<br \/>\n        event of a breach of this Article of this Agreement.<\/p>\n<p>10.5    Legal Obligation to Disclose. Each party shall be released from its<br \/>\n        obligations under this Article 10 with respect to information which<br \/>\n        such party is required to disclose to others pursuant to obligations<br \/>\n        imposed by law, rule or regulation; provided, however, that prior to<br \/>\n        any such required disclosure, if practicable, such party provides<br \/>\n        written notice to and consults with the other party.<\/p>\n<p>11.     MISCELLANEOUS.<\/p>\n<p>11.1    Independent Parties\/No Agency. The relationship of PSINet and<br \/>\n        Purchaser shall be that of independent third parties. Except as<br \/>\n        otherwise expressly provided in this Agreement, this Agreement does<br \/>\n        not constitute either party as the agent or legal representative of<br \/>\n        the other party and does not create a partnership or joint venture<br \/>\n        between the parties. Except as otherwise expressly provided in this<br \/>\n        Agreement, neither party shall have any authority to contract for or<br \/>\n        bind any other party in any manner whatsoever. This Agreement confers<br \/>\n        no rights of any kind upon any third party.<\/p>\n<p>11.2    Force Majeure. PSINet shall not be liable for failure to fulfill its<br \/>\n        obligations hereunder if such failure is due to causes beyond its<br \/>\n        control, including, without limitation, acts of God, fire,<br \/>\n        catastrophe, governmental prohibitions or regulations, viruses which<br \/>\n        did not result from the acts or omissions of PSINet, its employees or<br \/>\n        agents, national emergencies, insurrections, riots or wars, or<br \/>\n        strikes, lockouts, work stoppages or other labor difficulties. The<br \/>\n        time for any performance required hereunder shall be extended by the<br \/>\n        delay incurred as a result of such act of force majeure, and PSINet<br \/>\n        shall act with dilligence to correct such force majeure.<\/p>\n<p>11.3    Delays or Omissions. No delay or omission to exercise any right,<br \/>\n        power or remedy accruing to a party under this Agreement shall impair<br \/>\n        any such right, power or remedy of such party nor shall it be<br \/>\n        construed to be a waiver of any such breach or default, or an<br \/>\n        acquiescence therein, or of or in any similar breach or default<br \/>\n        thereafter occurring; nor shall any waiver of any single breach or<br \/>\n        default be deemed a waiver of any other breach or default theretofore<br \/>\n        or thereafter occurring.  Any waiver, permit, consent or approval of<br \/>\n        any kind or character on the part of either party of any breach or<br \/>\n        default under this Agreement, or any waiver on the part of either<br \/>\n        party of any provisions or conditions of this Agreement must be made<br \/>\n        in writing and shall be effective only to the extent specifically set<br \/>\n        forth in such writing. All remedies, either under this Agreement or<br \/>\n        by law or otherwise afforded to a party, shall be cumulative and not<br \/>\n        alternative.<\/p>\n<p>                                  Page: 10<\/p>\n<p>11.4  BENEFIT AND ASSIGNMENT. No party hereto shall assign this Agreement, in<br \/>\n      whole or in part, whether by operation of law or otherwise, without the<br \/>\n      prior written consent of the other party hereto (which consent shall not<br \/>\n      be unreasonably delayed or withheld); and any purported assignment in<br \/>\n      violation of the foregoing shall be void. This Agreement shall be<br \/>\n      binding upon and shall inure to the benefit of the parties hereto and<br \/>\n      their respective successors and assigns as permitted hereunder. No<br \/>\n      person or entity other than the parties hereto is or shall be entitled<br \/>\n      to bring any action to enforce any provision of this Agreement against<br \/>\n      any of the parties hereto, and the covenants and agreements set forth<br \/>\n      in this Agreement shall be solely for the benefit of, and shall be<br \/>\n      enforceable only by, the parties hereto or their respective successors<br \/>\n      and assigns as permitted hereunder.<\/p>\n<p>11.5  ADDITIONAL ACTIONS, DOCUMENTS AND INFORMATION: AUDIT. Each of the<br \/>\n      parties hereto agrees that it will, at any time, prior to, at or after<br \/>\n      the date hereof, take or cause to be taken such further actions, and<br \/>\n      execute, deliver and file or cause to be executed, delivered and filed<br \/>\n      such further documents and instruments and obtain such consents, as may<br \/>\n      be reasonably requested in order to fully effectuate the purposes,<br \/>\n      terms and conditions of this Agreement. In addition, PSINet may, at<br \/>\n      reasonable intervals and upon reasonable notice to Purchaser, either by<br \/>\n      itself or by its outside audit firm, audit the relevant books, records<br \/>\n      and electronic data of Purchaser to assure proper payments have been<br \/>\n      made by Purchaser hereunder. PSINet shall bear the costs of each such<br \/>\n      audit unless the results of such audit show that Purchaser has<br \/>\n      underpaid PSINet by 5% or more, in which case the cost of such audit<br \/>\n      and the following correctional audit shall be borne by Purchaser.<\/p>\n<p>11.6  NOTICES.<\/p>\n<p>(a)   All notices and other communications required or permitted hereunder<br \/>\n      shall be in writing and shall be mailed by certified or registered mail<br \/>\n      (return receipt requested), express air courier, charges prepaid, or<br \/>\n      facsimile addressed as follows:<\/p>\n<p>                 To Purchaser: as provided above<\/p>\n<p>                 To PSINet:<\/p>\n<p>                       PSINet Inc.<br \/>\n                       510 Huntmar Park Drive<br \/>\n                       Herndon, Virginia 22070<br \/>\n                       Facsimile:  (703) 904-1608<br \/>\n                       Attn: Harold S. Wills, Chief Operating Officer<\/p>\n<p>      or to such other address as either party shall have furnished to the<br \/>\n      other in writing.<\/p>\n<p>(b)   If a notice is given by either party by certified or registered mail,<br \/>\n      it will be deemed received by the other party on the third business day<br \/>\n      following the date on which it is deposited for mailing. If a notice is<br \/>\n      given by either party by air express courier, it will be deemed<br \/>\n      received by the other party on the next business day following the date<br \/>\n      on which it is provided to the air express courier. If a notice is<br \/>\n      given by facsimile, it will be deemed received by the other party after<\/p>\n<p>&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nPSINet\/EarthLink                                                      7\/24\/96<br \/>\nNetwork Access Agreement            Page: 11               <\/p>\n<p>      confirmation of receipt. Notwithstanding the foregoing, any payments<br \/>\n      made under this Agreement shall be deemed received only when actually<br \/>\n      received.<\/p>\n<p>11.7  SEVERABILITY. In case any provision of this Agreement shall be invalid,<br \/>\n      illegal or unenforceable, such provision shall be construed so as to<br \/>\n      render it enforceable and effective to the maximum extent possible in<br \/>\n      order to effectuate the intention of this Agreement; and if such<br \/>\n      provision shall be wholly invalid, illegal or unenforceable, the<br \/>\n      validity, legality and enforceability of the remaining provisions<br \/>\n      hereof shall not in any way be affected or impaired thereby.<\/p>\n<p>11.8  SURVIVAL OF OBLIGATIONS. The parties&#8217; rights and obligations that, by<br \/>\n      their nature, would continue beyond the termination, cancellation, or<br \/>\n      expiration of this Agreement, shall survive such termination,<br \/>\n      cancellation or termination.<\/p>\n<p>11.9  TITLES AND SUBTITLES. The titles of the Articles and Sections of this<br \/>\n      Agreement are for convenience of reference only and are not to be<br \/>\n      considered in construing this Agreement.<\/p>\n<p>11.10 COUNTERPARTS. This Agreement may be executed in any number of<br \/>\n      counterparts, each of which shall be an original, but all of which<br \/>\n      together shall constitute one instrument.<\/p>\n<p>11.11 GOVERNING LAW. This Agreement shall be governed in all respects by the<br \/>\n      laws of the State of New York without reference to its principles of<br \/>\n      conflicts of laws.<\/p>\n<p>11.12 ENTIRE AGREEMENT\/AMENDMENTS. This Agreement (including all Exhibits and<br \/>\n      the Bilateral Nondisclosure Agreement) constitutes the full and entire<br \/>\n      understanding and agreement between the parties with regard to the<br \/>\n      subjects hereof and thereof. Neither this Agreement nor any term hereof<br \/>\n      may be amended, waived, discharged or terminated, except by a written<br \/>\n      instrument signed by the parties hereto.<\/p>\n<p>&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nPSINet\/EarthLink                                                      7\/24\/96<br \/>\nNetwork Access Agreement            Page: 12<\/p>\n<p>BOTH PARTIES REPRESENT AND WARRANT THAT THEY HAVE FULL CORPORATE POWER AND<br \/>\nAUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM THEIR<br \/>\nOBLIGATIONS HEREUNDER, AND THAT THE PERSON WHOSE SIGNATURE APPEARS BELOW IS<br \/>\nDULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE PARTY.<\/p>\n<p>IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE<br \/>\nDATE SET FORTH:<\/p>\n<p>Charles G. Betty<br \/>\n&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nAuthorized Purchaser Representative\/Title (please type or print)<\/p>\n<p>Charles G. Betty                                                        7\/22\/96<br \/>\n&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nPurchaser Signature                                                      Date<\/p>\n<p>Harold S. Wills<br \/>\n&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nAuthorized PSINet Representative (please type or print)<\/p>\n<p>Harold S. Wills                                                         7\/22\/96<br \/>\n&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nPSINet Representative Signature                                          Date<\/p>\n<p>                                     [GRAPHICS]<\/p>\n<p>&#8211; &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\nPSINet\/EarthLink                                                      7\/22\/96<br \/>\nNetwork Access Agreement            Page: 13<\/p>\n<p>                        AMENDMENT TO NETWORK ACCESS AGREEMENT<\/p>\n<p>This Amendment to the Network Access Agreement (this &#8220;Amendment&#8221;) is made as of<br \/>\nthis _____ day of October, 1996 between PSINet, a New York corporation and<br \/>\nEarthLink Network, Inc., a Delaware corporation.<\/p>\n<p>                                       RECITALS<\/p>\n<p>    A. PSINet and EarthLink entered into that certain Network Access<br \/>\nagreement for network access for the benefit of EarthLink&#8217;s customers, on<br \/>\nJuly 22, 1996.<\/p>\n<p>    B. The parties wish to amend the Original Agreement to reflect certain<br \/>\nrevisions as discussed between the parties.<\/p>\n<p>NOW, THEREFORE, in consideration of the mutual obligations in this Amendment and<br \/>\nfor other good consideration, the receipt and sufficiency of which are<br \/>\nacknowledged, the parties to this Amendment agree as follows:<\/p>\n<p>1.  MODIFICATION OF CLAUSE 5.1.  Clause 5.1 of the Original Agreement, titled<br \/>\nCharges, specifically the third paragraph relating to monthly charges, is<br \/>\nmodified to read in its entirety as follows:<\/p>\n<p>    Tier           Price          Volume<br \/>\n    &#8212;-           &#8212;&#8211;          &#8212;&#8212;<\/p>\n<p>    A              ******         0-10,000<br \/>\n    B              *****          10,001-100,000<br \/>\n    C              *****          100,000+<\/p>\n<p>    The fifth paragraph of Clause 5.1 is modified to read as follows:<\/p>\n<p>The minimum volume required to maintain Tier C pricing shall increase according<br \/>\nto the month from the period beginning July 30, 1997 until December 31, 1997,<br \/>\nafter which the minimum monthly volume necessary to maintain Tier C pricing<br \/>\nshall remain at 165,000 Customers.<\/p>\n<p>The sixth paragraph of Clause 5.1 is modified to read as follows:<\/p>\n<p>7\/97        8\/97        9\/97        10\/97        11\/97        12\/97<br \/>\n100,000     110,000     120,000     135,000      150,000      165,000<\/p>\n<p>2.  MODIFICATION OF CLAUSE 5.3.  Clause 5.3 of the Original Agreement, titled<br \/>\nMinimum Commitment, is modified to read in its entirety as follows:<\/p>\n<p>On January 1, 1998, Purchaser&#8217;s minimum monthly commitment to PSINet shall<br \/>\nbecome $******* per month for each month until expiring on July 31, 1998.<\/p>\n<p>3.  MODIFICATION OF CLAUSE 5.7.  Clause 5.7 of the Original Agreement, titled<br \/>\nMarketing Referrals, shall read as follows:<\/p>\n<p>    Beginning December 1, 1996, and continuing through March 31, 1997, PSINet<br \/>\nwill provide Purchaser with the first opportunity to sell to all leads calling<br \/>\ninto PSINet inquiring about or seeking the purchase of non-dedicated, dial up<br \/>\nInternet access.  At Purchaser&#8217;s discretion, such leads will be transferred<br \/>\ntelephonically directly to Purchaser&#8217;s telemarketing group, where Purchaser will<br \/>\nattempt to sell the lead a dial-up access<\/p>\n<p>* &#8211; Redacted Material subject to Confidential Treatment Application<\/p>\n<p>account.  Purchaser will pay PSINet a one-time bounty of $***** for each lead<br \/>\nthat signs up for services and remains a paying customer for more than 60 days.<br \/>\nBy 30 days after the end of each month, Purchaser shall provide PSINet an<br \/>\naccounting of the number of leads received and the number successfully converted<br \/>\ninto sign-ups, along with payment of applicable bounties.<\/p>\n<p>    CANCELING CUSTOMERS.  The following text is added to the Original Agreement<br \/>\nas the second paragraph of Clause 5.7:<\/p>\n<p>    Existing PSINet service customers who don&#8217;t want to move to Mindspring or<br \/>\nwho are otherwise canceling the PSINet service will be offered by PSINet<br \/>\nEarthLink as an alternative.  If interested, PSINet will transfer or otherwise<br \/>\ndirect such customers to EarthLink&#8217;s sales group to be closed.<\/p>\n<p>4.  CONTINUED EFFECT OF ORIGINAL AGREEMENT.  All provisions of the Original<br \/>\nAgreement, except as modified by this Amendment, shall remain in full force and<br \/>\neffect and are hereby reaffirmed.<\/p>\n<p>IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto<br \/>\nhave executed this Amendment as the date first written above.<\/p>\n<p>EARTHLINK NETWORK, INC.                PSINet, INC.<\/p>\n<p>By: \/s\/ CHARLES G. BETTY               By: \/s\/ HAROLD S. WILLS<br \/>\n   &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;       &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<br \/>\n   Charles G. Betty                       Harold S. Wills<br \/>\n   Chief Executive Officer                Title:<br \/>\n   EarthLink Network, Inc.                PSINet, Inc.<br \/>\n   3100 New York Drive                    510 Huntmar Park Drive<br \/>\n   Pasadena, California 91107             Herndon, Virginia 22070<br \/>\n   Phone (818) 296-2400                   Phone:<br \/>\n   Fax (818) 296-4161<\/p>\n<p>* &#8211; Redacted Material subject to Confidential Treatment Application<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7397,8600],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42597","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-earthlink-inc","corporate_contracts_companies-psinet-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\/42597","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=42597"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42597"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42597"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42597"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}