Co-Location Service Agreement - Cybernet Data Systems Inc. and Globix Corp.
July 23, 1998
Globix Corporation
295 Lafayette Street
New York, New York 10012
Ladies and Gentlemen:
This is to set forth our agreement and understanding as follows:
1. Concurrently with the execution hereof, Cybernet Data Systems, Inc.
("Cybernet") has executed and delivered certain agreements with Globix
Corporation ("Globix"), copies of which are attached hereto as Exhibit A (the
"Current Agreements"). Cybernet hereby agrees to keep the Current Agreements in
full force and effect during the term of this Agreement. Cybernet will fully
comply with the Current Agreements and will not, without the prior written
consent of Globix, engage any other person, firm, corporation or entity to
provide services of the type provided by Globix during the term of this
Agreement. Cybernet will provide recognition of Globix as the host of its
website on Cybernet's website and will provide an appropriate "click through" to
Globix's home page. Globix shall have the right to refer to Cybernet as a
customer and generally describe the services it provides Cybernet in Globix's
marketing and other materials.
2. In the event that, during the term of this Agreement, Cybernet shall
require hardware, software or services of the type provided by Globix
(including, without limitation, Internet services), which hardware, software or
services are not covered by the Current Agreements, Globix shall have the right
of first refusal to provide such hardware, software or services at its then
prevailing standard rates. Cybernet agrees that it will not, without the prior
written consent of Globix, purchase such hardware, software or services from any
other vendor at prices higher than those offered by Globix. It is understood and
agreed that, in the event Globix is unwilling to match the price offered by
another vendor for such hardware, software or services, Cybernet shall be free
to purchase such hardware, software or services from such other vendor. In the
event Cybernet enters into an agreement for services with Globix pursuant to
this paragraph, Cybernet agrees to keep such agreement in full force and effect
during the term of this Agreement and will not engage any person, firm,
corporation or entity to provide services of the type provided by Globix during
the term of this Agreement. It is understood and agreed that the foregoing shall
not apply to hardware purchased by Cybernet from Gateway 2000, Inc. pursuant to
the agreement between Cybernet and Gateway 2000, Inc., dated January 27, 1998.
3. This Agreement shall terminate on the earlier of (a) the fifth
anniversary hereof and (b) the later of that date on which (i) Cybernet shall
not be indebted to Globix and (ii) Globix shall not hold at least 2.5% of the
issued and outstanding common shares of Cybernet.
4. This Agreement shall inure to the benefit of and be binding upon the
successors, assigns and transferees of each of the parties.
<PAGE> 2
5. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, as applied to contracts made and performed
wholly within the State of New York, without regard to principles of conflicts
of law.
6. Each of the parties hereto hereby irrevocably and unconditionally:
(i) submits to the non-exclusive jurisdiction of the courts of the State of New
York and the courts of the United States of America for the Southern District of
New York, and appellate courts thereof, and consents and agrees to such action
or proceeding being brought in such courts; and (ii) waives any objection that
it may now or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in any inconvenient
court and agrees not to plead or claim the same.
7. The parties agree that there is no adequate remedy at law for any
breach of this Agreement by Cybernet. Therefore, in addition to any other
remedies available to Globix, Globix shall be entitled to a permanent injunction
and/or specific performance of this Agreement.
If the foregoing is in accordance with your understanding, kindly so
indicate by signing this letter in the place provided below.
Very truly yours,
CYBERNET DATA SYSTEMS, INC.
By: /s/ Susan Strausberg, Co-CEO
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(Title)
Agreed:
GLOBIX CORPORATION
By: /s/ Marc Bell
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President (Title)
<PAGE> 3
EXHIBIT A
<PAGE> 4
[GLOBIX LOGO]
GLOBIX CORPORATION CO-LOCATION SERVICE AGREEMENT
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//Ops(orig) //SM //nte //Acct. //Rep. //Mar.
Company Name: Cybernet Data Systems
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Address: 50 Washington Street Flr/Suite:
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City: Norwalk State: CT Zip Code: 06854
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Administrative Contact:
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Name: Tom Vos
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Address: 50 Washington Street e-mail: tom.vos@edgar-online.com
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Tel: (203)852-5666 Fax: (203)852-5667 pager:
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Technical Contact: // Same as above
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Name: Stefan Chopin, Pequot Systems
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Address: 50 Washington Street, Norwalk CT 06854 e-mail: schopin@pequot.com
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Tel: 203-852-5610 Fax: pager: 1-800-sprint6,3547865
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Billing Contact: /x/Same as above
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Name: Tom Vos
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Address: e-mail:
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Tel: Fax: pager:
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/x/New Service Request //Renewal of existing service
//Upgrade of existing service
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One time start-up fees: (Check all that apply) Total Globix start-up fees $TBD
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// Internet Port Setup $-------
// Globix photo ID card Qty---- $-------
// Globix key card (ref deposit) Qty---- $-------
// Local loop (Bell Atlantic) installation $-------
/x/ Co-location service Setup $2,000
// Domain name registration $-------
/x/ Custom monitoring/notification setup $780 per Stephan Chopin
/x/ Other Hardware (SEE ATTACHED) $-------
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Payment in full of one-time start-up fees, any hardware costs, and installation
charges are due prior to the start of service.
Monthly Recurring Fees: (Check all that apply)
Total Globix monthly charges: $2,999
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/x/ 1.54 M bps Internet Port incl. News Access $1,999/mo
// bps burstable Internet Port incl. News Access
(details attached) $-----/mo
/x/ Full rack co-location service (full rack includes UPS) $1,000/mo
// Bell Atlantic circuit(s)
--(plus taxes and applicable Federal fees) $-----/mo
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Globix to configure customer equip?
// yes (full scope of work must be attached) // no
Network requirements: /x/10bT //100bT (3Mbps port minimum)
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Length of Contract: 60 months in accordance with the commencement date
detailed below.
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Commencement Date: In accordance with Paragraph 5 of the Terms and Conditions
agreement attached hereto.
A. Upon signing off this agreement/purchase order: Payment in full of one-time
start-up fee, any hardware costs, and installation charges are due.
B. Globix port charges: Billing will begin on the first day of the month
following the month that IP packets are passed between Globix and customer.
The first such payment will be prorated for a partial month. First month port
access charges, first month rack rental charges, and any charges for the
first partial month of service are due immediately upon the start of service.
C. All charges are subject to state and local sales taxes.
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Please sign here indicating your acceptance of the above agreement that is
subject to the Terms and Conditions on the following page.
Signature: [Susan Strausberg] Title: Co CEO Date: 7/21/98
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Forms attached: //domain name //network diagram //equipment order
//credit application //other
Consultant Colin Gribbin Approved by:---------
<PAGE> 5
[GLOBIX CORPORATION LETTERHEAD]
GLOBIX CORPORATION CO-LOCATION SERVICE AGREEMENT
A. Internet Port Speed: / /T3 / /Fractional T3 ________ (specify)
/X/T1 / /Fractional T1 ________ (specify)
/ /56K / /Other_________________ (specify)
B. Requested # of IP addresses: / /16 / /32 / /64 /X/126 / /other______
If requesting more than 32 IP addresses, please provide the following
information on a separate page:
1. How many modems do you support?
2. How many websites do you support?
3. How many ISDN or leased lines do you support?
4. Please provide a subnet layout.
5. Please provide a basic network diagram.
6. Please detail any plans to expand your network during the next six
months.
C. Order Type: /X/Establishing new connectively only / /Replacing existing
service (from another ISP)
D. Please indicate if your access to the Internet will be:
/ / Single homed (standard)
/ / Multi-homed (to run connectivity with an existing ISP)
/ / Back-up connection to existing service (only one line at a time)
If you require BGP, please ask your Globix Corporation Consultant for
our BGP questionnaire.
E. If Globix Corporation is replacing, backing up, or multi-homing an existing
Internet connection what is your current:
ISP: _____________________________________________
Contact Name: ____________________________________
Connection Speed: ________________________________
Connection Type: _________________________________
F. Does your company have existing IP addresses? If so please provide your:
Address Block: ___________________________________
Subnet Mask: _____________________________________
Address Provider: ________________________________
G. Does your company have a currently registered domain name? / /Yes / /No
If "yes," what is your domain name: http://www.edgar-online.com
______________________________
Please attach a Domain Registration Worksheet to register any new
domain names.
H. Would you like Globix Corporation to provide DNS service for your current
domain? / /Yes / /No
If "yes," would you like us to provide:
/ /Primary DNS / /Secondary DNS / /Both
If Globix Corporation is providing Secondary DNS only,
please list the Primary DNS server IP Address: ______________________
I. Requested Due Date:
/ /Standard Installation (2-3 weeks)
/ /Rush Installation:
* Requested date: ______________________________
* Reason for rush order: ________________________________________
J. Please attach any additional instructions to this form.
___________________________________________________________________________
Page 2 of 3 Consultant Colin Gribbin Approved by:
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[GLOBIX LOGO]
GLOBIX CORPORATION CO-LOCATION SERVICE AGREEMENT
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CONDITIONS OF SALE BY GLOBIX CORPORATION
The Conditions of Sale herein represent the terms and conditions of the Sale
from Seller to Purchaser and no amendment, modification, waiver, statement or
representation not contained herein shall be binding upon Seller unless in
writing and executed by an officer of Globix Corporation.
1. Payment and Credit Interest: Seller reserves the right to request credit
references and/or an official purchase order from Purchaser. The Purchase Price
is due upon delivery unless other terms have been agreed to by Seller prior to
delivery of goods and services ("Merchandise"). Accounts in default (30 days
after delivery) are subject to a charge of 1.5% per month on any outstanding
balance unless a lesser fee is permitted under the laws of the State of New
York, in which case the legal interest rate shall be the rate charged. A $25.00
charge will be imposed on any check in which payment is refused by Purchaser's
bank. Seller shall retain title to delivered Merchandise until the purchase
price of such Merchandise has been paid in full.
2. Internet Services Payment and Credit Interest: Billing for Service
provided by Seller will commence when the connection from Seller's hub is
completed to Purchaser's site and the connection allows information to be sent
through the connection to Purchaser. Service shall then be invoiced to
Purchaser on a monthly basis for succeeding months. In the event that services
have not been paid within 60 days, Seller has the right, without notice to
discontinue service. Upon full payment and a reconnection fee of 10% of the
monthly recurring charge, service will be restored in two (2) days. If full
payment is not received in thirty (30) days Seller will assume that Purchaser
has terminated its agreement.
3. Shipment: Purchaser agrees to notify the Seller and the shipping company,
in writing by Certified Mail, return receipt requested, within two (2) business
days after delivery of any defect or damage to the merchandise, including, but
not limited to, any discrepancy between the shipping document and the
merchandise received. Failure to do so shall constitute a waiver of any claim
which Purchaser may have against Seller for non-delivery, damaged delivery
and/or failure to conform to merchandise ordered.
4. Installation: If Purchaser has requested Seller to install the merchandise
at Purchaser's premises or other premises, then Purchaser agrees to pay all
installation charges, including, but not limited to all costs associated with
providing a suitable place of installation, the cost of providing electric
power, outlets, air conditioning, etc., required or suggested for operation of
the Merchandise in the manufacturer's installation manual.
5. Internet Service Connectivity: If "local" loop is necessary it is provided
by your Phone Company Local Exchange Carrier ("LEC") and is independent of the
service provided by Seller. Inclusion of the local loop on your monthly Globix
invoice does not imply that Globix Corporation provides this service.
6. Limitation of Liability: In no event shall Seller be liable for any loss of
use, revenue, profit or custom, or for any direct, indirect or consequential
damages arising out of, connected with, or resulting from the sale of
Merchandise, including, but not be limited to the loss of data resulting from
delays, non-deliveries, mis-deliveries or service interruptions caused by
Purchaser's own negligence, errors or omissions. No agent, employee or
representative of Seller has authority to bind Seller to any warranty and such
representation shall be void. In the event that Purchaser installs any
applications, utilities, software or programs or re-configures the Merchandise
or otherwise modifies or alters it, the sole responsibility of Seller will be
to make repairs covered by the Manufacturer's Warranty. Seller makes no
express or implied warranty relating to the design, quality or condition of the
merchandise, its fitness for a particular use, non-infringement of any
copyright and/or warranties arising from the course of dealing or usage in the
trade or business or for any other purpose.
7. Internet Service Liability: Seller exercises no control whatsoever over the
content of the information passing through its services. Seller's services may
only be used for lawful purposes. Transmission of any material in violation of
any United States, state or local law, rule or regulation is prohibited;
including, but not limited to copyrighted material, material legally judged to
be threatening or obscene and/or material protected as trade secret. Purchaser
agrees to hold Seller harmless from any claims resulting from its use of
Seller's services which damages Purchaser or any other party whose claim is
asserted based upon rights or obligations supposedly granted through or by
Purchaser.
8. Returns: No merchandise shall be returned by Purchaser to Seller unless
Purchaser has first obtained a returned Merchandise Authorization ("RMA")
number from Seller. Merchandise returned by Purchaser without first obtaining
an RMA number from Seller shall be refused by Seller and no credit shall be
given for the return of such merchandise. In the event Merchandise is accepted
by Seller without an RMA, it will be returned to Purchaser within two (2)
business days of receipt and shall be treated as Merchandise which has been
received by Purchaser and no credit shall be given for the return of such
merchandise and the outstanding amount shall still be owed by Purchaser to
Seller pursuant to the Conditions of Sale.
9. Charges and Cancellation: In the event of a failure to pay the amount
billed for ninety (90) days, Seller may repossess and remove all or part of
such notice without notice or demand; such remedy shall be in addition to any
other right and/or remedy which may be available under law. In any action
brought by Seller to collect outstanding bills, in which a judgment is awarded
to Seller, Seller shall be entitled to collect legal fees in the amount of 20%
of the amount outstanding, plus all costs and expenses of bringing the action
and/or collection.
10. Termination of Service Agreement: In the event Purchaser terminates an
agreement for services prior to the conclusion of the term of the agreement
then Purchaser shall be liable to Seller for 75% of the remaining charges for
service in the agreement.
11. Renewal of Service Agreement: This Service Agreement will automatically
renew for a term of one month at the end of the original Length of Contract (as
specified on page one) unless Purchaser terminates this agreement or enters a
new Service Agreement with Seller. Such termination or new Service Agreement
must be received by Seller no later than 30 days prior to the expiration of the
original Contract Length. In the event that Seller does not receive notice of
termination or a New Service Agreement from Purchaser prior to the expiration
of the one month renewal period, Seller will continue to provide services (as
specified on page one) at the current list price as determined on the first day
of the renewal period.
Any notice to the Seller provided for herein shall be in writing and shall be
sent by Certified or Registered Mail, Return Receipt Requested to Globix
Corporation, 295 Lafayette Street, Third Floor, New York, NY 10012.
PLEASE SIGN BELOW TO INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS.
Company Name: Cybernet Data Systems
Address: 50 Washington St., Norwalk, CT
Signature: /s/ Susan Strausberg Title: Co CEO Date: 7/21/98
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Page 3 of 3 Consultant Colin Gribbin Approved by: _____________________