Business Connectivity Service Order Form - Digex Inc. and WebSideStory Inc.
DIGEX Rep. Jamie Shupe
[DIGEX LOGO]
BUSINESS CONNECTIVITY SERVICE ORDER FORM
<TABLE>
<CAPTION>
SECTION A - TO BE COMPLETED BY DIGEX INITIAL MONTHLY
CHARGE CHARGE
<S> <C> <C>
Customer - WEB SIDE STORY
Access Type LEASED LINE Post Speed - 45 Mbps CIR - 45 Mbps *** ***
--------- ----------
Hardware Router - NONE CSU/DSU- NONE
--------- ----------
Firewall
--------- ----------
Brand Service Level
--------- ----------
License Platform
--------- ----------
Other Services- Managed Service: [ ] Pager [ ] UPS
--------- ----------
Contract Term - 3 year(s) Total Contract Value- *** Total Charges *** ***
--------- ----------
Special Instruction
</TABLE>
SECTION B - TO BE COMPLETED BY CUSTOMER
Company Name WEBSIDESTORY, INC.
-------------------------------------------------------------------
Site Address 6450 Lusk Blvd. E204
-------------------------------------------------------------------
City San Diego State CA ZIP 92121
------------------------------- ---------- --------------------
SITE PHONE (619) 546-0040 FAX (619) 546-0480
------------------ ----------------
Primary Technical Contact JIM VAN BAALAN
---------------
Phone 619 546 0040 FAX 619 546 0840 Email Jim@websidestory.com
-------------- ------------- ------------------------
Secondary Technical Contact Neil Bartolome
----------------------------------------------------
Phone FAX Email
------------------------------ --------------- -----------------
Customer Type - Corporate Existing Customer? [ ] Yes [X] No [ ] N/A
Telco [X] DIGEX Provided [ ] Customer Provided [ ] Extended Demarc
DIGEX Provides Primary DNS [ ] Yes [X] No [ ] N/A
Customer has already registered Domains [X] Yes [ ] No [ ] N/A
Customer Authorizes DIGEX to transfer Domains [ ] Yes [ ] No [X] N/A
Number of IP Addresses needed /22
-----------------------
Requested Domain Name 1. N/A 2. N/A
---------------------------- ----------------------
Customer hereby orders from DIGEX the Products and Services for the term
specified in this Service Order Form. This Service Order Form is valid when
accepted by an authorized representative of DIGEX and accompanied by an
executed DIGEX Terms and Conditions agreement. Charges do not include any
special construction or inside/extended wiring costs, shipping and handling, or
applicable taxes. Telco rates are estimated based on current Telco carrier
tariffs. All orders subject to credit approval. Customer will be billed
separately by InterNIC for Domain Name registration, and will be charged a
$100.00 one-time DIGEX fee for each additional primary Domain Name. Customer
may be required to provide documentation to justify allocation of IP addresses.
ACCEPTED BY CUSTOMER ACCEPTED BY DIGEX
/s/ BLAISE BARRELET
------------------------------------- ---------------------------------
Customer Signature Signature
BLAISE BARRELET
------------------------------------- ---------------------------------
Name Date Name Date
PRESIDENT MAY 29 1998
------------------------------------- ---------------------------------
Title Title
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
DIGEX TERMS AND CONDITIONS
DIGEX SERVICE: Customer agrees to purchase the DIGEX Products and or Services
outlined in the front page of this Agreement per the terms and conditions
described herewith. Customer agrees to remain as a subscriber of the service for
the period identified from the date of service activation. At the end of the
service commitment this Agreement shall be automatically renewed for successive
one (1) year periods on the same terms and conditions contained herein, with the
exception of the price of services, and shall continue to be automatically
renewed until terminated by either party as provided herein. Notice of
termination should be made in writing to the DIGEX Customer Service Department
at One DIGEX Plaza, Beltsville Maryland 20705 no less than thirty (30) days
prior to the expiration of any term of this Agreement.
RIGHTS AND OBLIGATIONS OF CUSTOMER: DIGEX's services are only to be used for
lawful purposes. Customer shall not transmit, retransmit or store material in
violation of any federal or state laws or regulations, including, but not
limited to, obscenity, indecency, defamation, or infringement of trademark or
copyright. In particular, by signing these terms and conditions, Customer agrees
to adhere to DIGEX's Acceptable Use Policy. Failure to comply with these
obligations shall constitute violation of these terms and conditions and
possible termination of this Agreement at DIGEX's discretion should the
infringement not be rectified to DIGEX's satisfaction. If Customer operates
hardware or software that DIGEX determines may cause hazard, interference, or
service interruption to DIGEX provided equipment or services or the DIGEX
network, Customer shall immediately remove the offending hardware or software
upon notice.
PROPRIETARY RIGHTS: DIGEX grants Customer a non-exclusive, non-transferable
license to use the Products and Services provided hereunder. Title, property
rights, software licenses and hardware licenses and agreements, including all
intellectual property rights to such Products and Services, are and shall remain
with DIGEX, whether or not they are embedded in any Product or Service. Customer
recognizes that the Products and Services used hereunder constitute valuable
trade secrets of DIGEX. Customer will use its best efforts to protect and keep
confidential any and all Products and Services used by it and shall not attempt
in any way to copy, examine, alter, re-engineer, tamper with, or otherwise
misuse such Products and Services. In all cases the IP addresses assigned for
Customer use remain the property of DIGEX and shall revert back to same upon
Customer termination.
INSTALLATION: Installation and one-time charges set forth on the service order
are due upon order. Installation charges are nonrefundable. Customer shall
provide all necessary preparations to permit installation, maintenance and
operation of Products and Services provided hereunder unless otherwise specified
in this Agreement and shall provide to DIGEX and its suppliers reasonable access
to Customer's premises including the point at which leased telco services are
provided to Customer. Customer is also responsible for any and all additional
telco charges arising as a result of necessity to reschedule telco suppliers, as
well as all telco maintenance and diagnostics charges that may be needed. Once
DIGEX services have been installed, Customer shall be ' responsible for any fees
associated with relocation of services if requested by Customer, including a one
time DIGEX installation fee, and corresponding adjusted recurring telco fees
dependent on the geographical relocation. If at any time during this contract
the Customer wishes to downgrade bandwidth, the Customer agrees to pay a
one-time downgrade fee of $750 and any applicable telco fees.
CUSTOMER PREMISE EQUIPMENT: Customer is responsible for all maintenance and
upgrades of equipment purchased from DIGEX beyond the manufacturer's standard
warranty on said equipment. Any unused hardware or software purchased from DIGEX
may be returned for full refund, less a 20% restocking fee, within 60 days of
purchase provided such items are unused, in original packaging and in full
working order. In the event that DIGEX provides equipment to Customer in
conjunction with Service wherein such equipment remains the property of DIGEX;
(i) the configuration and type of equipment to be used shall be determined
solely by DIGEX, (ii) DIGEX shall provide the initial equipment configuration
and verify operability with the DIGEX network,
<PAGE> 3
DIGEX TERMS AND CONDITIONS
(iii) Customer is responsible for operating the equipment within the parameters
of the manufacturer's specifications, and (iv) DIGEX may choose at its sole
discretion to provide software upgrades for hardware. Additional support of
DIGEX staff to reconfigure equipment once installed, should service be required
due to Customer intervention, shall be chargeable to Customer at DIGEX's
then-current support rates.
SERVICE OF EQUIPMENT PROVIDED BY DIGEX: In the event of failure of DIGEX owned
equipment provided to Customer in conjunction with Service, like equipment shall
be provided by DIGEX as promptly as reasonably possible, via next business day
delivery to Customer site. Equipment shall be pre-configured by DIGEX in
conjunction with configuration guidelines. Once operability is verified,
Customer shall return the faulty equipment to DIGEX with 15 days of receipt of
new equipment. Failure to do so shall result in the Customer being billed for
the faulty equipment in the amount equaling vendor's list price as determined by
DIGEX. At termination of the Agreement, all DIGEX owned equipment must be
returned in good working order within 30 days. Failure to do so shall result in
liability to the Customer for the cost of repair of the faulty equipment or the
cost of replacement of the non-returned equipment in an amount equaling vendor's
list price as determined by DIGEX.
INVOICING AND PAYMENT OF SERVICE: Initial rates for the services are set forth
on the DIGEX Order Form. The initial rates shall be in effect for the duration
of the initial service commitment. During any renewal terms, the rates shall be
those contained in the then current DIGEX price list unless otherwise agreed by
the parties. DIGEX will invoice Customer monthly in advance. The price of the
service described within does not include sales, usage, excise, ad valorem,
property or any other taxes now or hereafter imposed, directly or indirectly, by
any governmental authority or agency with respect to the Service. Customer
agrees to pay such taxes directly or reimburse DIGEX for any such taxes. This
bill is due and payable in full on the date shown on the bill. Customers also
have the option of prepayment of services for term of Agreement. For Customers
receiving DIGEX burstable services, charges are billed one month in arrears,
based upon actual usage.
NON-PAYMENT / CUSTOMER TERMINATION: A late charge of the lesser of 1-1/2% per
month or the maximum rate permitted by law may be applied to each of Customer's
service bills not paid by the due date. This late charge is applicable to the
unpaid balance as of the due date. Customer shall pay DIGEX all costs including,
without limitation, reasonable attorney fees, the fees of any collection agency,
and any other costs incurred by DIGEX in exercising any of its rights under the
Agreement. If Customer terminates the Agreement, Customer will pay a lump sum
equal to the charges for the remainder of the then current term of the Agreement
but, except as described in the next sentence, in no case greater than one year.
If the Customer is terminated by DIGEX for violation of the Acceptable Use
Policy, Customer shall pay immediately a lump sum equal to the charges for the
remainder of the then current term of the Agreement.
MAINTENANCE WINDOW: DIGEX maintains specified time periods during which it may
perform necessary network maintenance and/or network upgrades. These specified
time periods are referred to as "Scheduled Maintenance Windows". In the event
DIGEX plans to bring down the Service or the Equipment during a Scheduled
Maintenance Window, DIGEX will provide a 24-hour notice to Customer in advance
of the Scheduled Maintenance Window. In addition, DIGEX reserves the right to
perform any required maintenance work outside of the Scheduled Maintenance
Window with a minimum of 12 hours notification to Customer. However, Customer
understands that at any time DIGEX may perform emergency maintenance as needed
to preserve the overall integrity of the products and services offered as
determined by DIGEX with no notice.
DIGEX SERVICE LEVEL GUARANTEE: If the Customer notifies DIGEX in writing
immediately upon failure to access DIGEX's Services and or Equipment and DIGEX
determines in its reasonable commercial judgment that the outage has been caused
by DIGEX, the Customer will receive a credit against its next monthly invoice.
In the event of a service interruption that exceeds one hour in
<PAGE> 4
DIGEX TERMS AND CONDITIONS
any calendar day, DIGEX will grant a credit allowance for that entire day of
service, equivalent to 1/30th of the monthly port and telco service charge, for
the service affected. In the event of service interruptions of, in the
aggregate, two to eight hours in any calendar month, DIGEX will credit
Customer's account for a week of service. In the event of service interruptions
of, in the aggregate, eight hours to two days in any calendar month, DIGEX will
credit Customer's account for two weeks of service. In the event of service
interruptions of, in the aggregate, two days to four days in any calendar month,
DIGEX will credit Customer's account for three weeks of service. In the event of
service interruptions of, in the aggregate, more than four days in any calendar
month, DIGEX will credit Customer's account for the entire month of service. If
Customer has the right, pursuant to this clause to credits equal to or greater
than one week of service in two consecutive calendar months, Customer may
terminate this agreement, without penalty, on written notice to DIGEX. A service
interruption will be deemed to have occurred if Customer is unable to
communicate with or access any other Internet Service Provider via the IP
Transmission Protocol and as a result of failure of DIGEX's facility, equipment
or personnel used to provide the service in question, and only where the
interruption is not the result of a Scheduled Maintenance Window.
CREDIT INFORMATION: Customer consents to standard credit check by DIGEX in order
to confirm credit-worthiness and to DIGEX's disclosure of account information to
or from credit reporting agencies, credit bureaus, private credit reporting
associations, or to or from other providers of telecommunications services at
any time during Customer's service with DIGEX.
LIMITATION OF LIABILITY: DIGEX exercises no control whatsoever over the content
of any information passing through its network and is not responsible for
damages Customer suffers for any reason, including, but not limited to, loss or
degradation of data resulting from delays, nondeliveries, wrong deliveries and
any and all service interruptions whether caused by the acts and omissions of
DIGEX and its employees, of Customer or of any other party. DIGEX makes no
representation that it can provide uninterrupted service. Furthermore, DIGEX
shall have no liabilities other than the credits outlined within due to
interrupted service unless caused by the gross negligence of DIGEX. DIGEX shall
not be liable for acts or omissions of other carriers, equipment failures or
modifications, acts of God, strikes, government actions, or other causes beyond
its reasonable control. DIGEX MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS
OR SERVICES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED. DIGEX
SHALL NOT BE LIABLE TO ITS CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. Any legal action arising out of
the provision of DIGEX's services shall be brought within a period of one year
of the occurrence or shall be deemed waived. Customer agrees to indemnify and
hold harmless DIGEX from any and all claims resulting from Customer's use of the
equipment or services which cause damage to Customer or any other party.
TRANSFER AND ASSIGNMENT: Neither party, other than for collateral purposes, may
sell, assign or transfer this Agreement without the prior written consent of the
other party, except that DIGEX may assign this Agreement to any of its
affiliates or any person who acquires substantially all of the assets of DIGEX.
Customer may not resell IP accounts or Internet services of any kind from a
DIGEX provided connection without explicit written permission of DIGEX.
GOVERNING LAW: This Agreement is governed by the laws of the State of Maryland
without regard to its choice of law provisions.
ACCEPTANCE: These Terms and Conditions of the "Agreement" together supersede all
previous representations, understandings or agreements and shall prevail
notwithstanding any variance with terms and conditions of any order submitted.
---------------------------------------- -------------------------
Customer Date
----------------------------------------
Print Customer Name
---------------------------------------- -------------------------
DIGEX Date
<PAGE> 5
DIGEX TERMS AND CONDITIONS
DIGEX SERVICE: Customer agrees to purchase the DIGEX Products and/or Services
outlined in the front page of this Agreement per the terms and conditions
described herewith. Customer agrees to remain as a subscriber of the service
for the period identified from the date of service activation. At the end of
the service commitment this Agreement shall be automatically renewed for
successive one (1) year periods on the same terms and conditions herein, with
the exception of the price of services, and shall continue to be automatically
renewed until terminated by either party as provided herein. Notice of
termination should be made in writing to the DIGEX Customer Service Department
at One DIGEX Plaza, Beltsville, Maryland 20705 no less than thirty (30) days
prior to the expiration of any term of this Agreement.
RIGHTS AND OBLIGATIONS OF CUSTOMER: DIGEX's services are only to be used for
lawful purposes. Customer shall not transmit, retransmit or store material in
violation of any federal or state laws or regulations, including, but not
limited to, obscenity, indecency, defamation, or infringement of trademark or
copyright, in particular, by signing these terms and conditions. Customer
agrees to adhere to DIGEX's Acceptable Use Policy. Failure to comply with these
obligations shall constitute violation of these terms and conditions and
possible termination of this Agreement at DIGEX's discretion should the
infringement not be rectified to DIGEX's satisfaction. If Customer operates
hardware or software that DIGEX determines may cause hazard, interference, or
service interruption to DIGEX provided equipment or services or the DIGEX
network, Customer shall immediately remove the offending hardware or software
upon notice.
PROPRIETARY RIGHTS: DIGEX grants Customer a non-exclusive, non-transferable
license to use the Products and Services provided hereunder. Title, property
rights, software licenses and hardware licenses and agreements, including all
intellectual property rights to such Products and Services, are and shall
remain with DIGEX, whether or not they are embedded in any Product or Service.
Customer recognizes that the Products and Services used hereunder constitute
valuable trade secrets of DIGEX. Customer will use its best efforts to protect
and keep confidential any and all Products and Services used by it and shall
not attempt in any way to copy, examine, alter, re-engineer, tamper with, or
otherwise misuse such Products and Services. In all cases the IP addresses
assigned for Customer use remain the property of DIGEX and shall revert back to
same upon Customer termination.
INSTALLATION: Installation and one-time charges set forth on the service order
are due upon order. Installation charges are nonrefundable. Customer shall
provide all necessary preparations to permit installation, maintenance and
operation of Products and Services provided hereunder unless otherwise
specified in this Agreement and shall provide to DIGEX and its suppliers
reasonable access to Customer's premises including the point at which leased
telco services are provided to Customer. Customer is also responsible for any
and all additional telco charges arising as a result of necessity to reschedule
telco suppliers, as well as all telco maintenance and diagnostics charges that
may be needed. Once DIGEX services have been installed, Customer shall be
responsible for any fees associated with relocation of services if requested by
Customer, including a one time DIGEX installation fee, and corresponding
adjusted recurring telco fees dependent on the geographical relocation. If at
any time during this contract the Customer wishes to downgrade bandwidth, the
Customer agrees to pay a one-time downgrade fee of $750 and any applicable
telco fees.
CUSTOMER PREMISE EQUIPMENT - Purchased by Customer: Customer is responsible
for all maintenance and upgrades of equipment purchased from DIGEX
(manufacturer's warranty may apply in some circumstances). Any unused hardware
or software purchased from DIGEX may be returned for a full refund, less a 20%
restocking fee, within 15 days of receipt by Customer, provided such items are
unopened, in original packaging, and in full working order, except that if
Customer purchases equipment with a custom configuration, as detailed in an
attachment hereto, it is not returnable by Customer.
CUSTOMER PREMISE EQUIPMENT - Provided by DIGEX: In the event that DIGEX
provides DIGEX-owned equipment to Customer in conjunction with service, (i) the
configuration and type of equipment to be used shall be determined solely by
DIGEX (except that DIGEX may agree to obtain a custom equipment configuration
specifically for Customer as detailed in a separate attachment); (ii) DIGEX
shall provide the initial equipment configuration and verify operability with
the DIGEX network; (iii) Customer is responsible for operating the equipment
within the parameters of the manufacturer's specifications; and (iv) DIGEX may
choose at its sole discretion to provide software upgrades for hardware.
Additional support of DIGEX staff to reconfigure equipment once installed,
should service be required due to Customer's action, shall be chargeable to
Customer at DIGEX's then-current support rates. In the event of failure of
DIGEX-owned equipment provided to Customer in conjunction with service, like
equipment shall be provided by DIGEX as promptly as reasonably possible via next
business day delivery to Customer site. In the case of equipment with a
customer configuration, as detailed in an Attachment hereto, DIGEX may agree to
a shorter replacement period. DIGEX shall pre-configure equipment in
conjunction with configuration guidelines. Once operability is verified,
Customer shall return any faulty equipment to DIGEX within 15 days of receipt
of new equipment. Failure to do so shall result in the Customer being billed
for the faulty equipment in the amount equal to vendors list price as
determined by DIGEX. At termination of the Agreement, all DIGEX-owned equipment
must be returned in good working order within 30 days. Failure to do so shall
result in liability to the Customer for the cost of replacement of the
non-returned equipment in the amount equal to vendors list price as determined
by DIGEX.
INVOICING AND PAYMENT OF SERVICE: Initial rates for the services are set forth
on the DIGEX Order Form. The initial rates shall be in effect for the duration
of the initial service commitment. During any renewal terms, the rates shall be
those contained in the then current DIGEX price list unless otherwise agreed by
the parties. DIGEX will invoice Customer for services in advance on a monthly
basis. Except that, for those Customers receiving DIGEX burstable services,
charges for burstable services above and beyond the base tier rate are billed
one month in arrears because such charges are based upon actual usage. The
price of the service described within does not include sales, usage, excise,
ad valorem, property or any other taxes now or hereafter imposed, directly or
indirectly, by any governmental authority or agency with respect to the
Service. Customer agrees to pay such taxes directly or reimburse DIGEX for
any such taxes. This bill is due and payable in full on the date shown on the
bill. Customers also have the option of prepayment of services for term of
Agreement. Customer shall be responsible and will reimburse Company for
telephone company or other service provider installation or any other charges,
including monthly service charges, incurred by Company in the fulfillment of
this Agreement if: (i) the Agreement is terminated after execution but prior to
initiation of the Products and Services; or (ii) there is a delay in the
initiation of the Products and Services that is caused, through action or
inaction, by the Customer.
NON-PAYMENT/CUSTOMER TERMINATION: A late charge of the lesser of 1-1/2% per
month of the maximum rate permitted by law may be applied to each of Customer's
service bills not paid by the due date. This late charge is applicable to the
unpaid balance as of the due date. Customer shall pay DIGEX all costs
including, without limitation, reasonable attorney fees, the fees of any
collection agency, and any other costs incurred by DIGEX in exercising any of
its rights under the Agreement. If Customer terminates the Agreement Customer
will pay a lump sum equal to the charges for the remainder of the then current
term of the Agreement but, except as described in the next sentence, in no case
greater than one year. If the Customer is terminated by DIGEX for violation of
the Acceptable Use Policy, Customer shall pay immediately a lump sum equal to
the charges for the remainder of the then current term of the Agreement.
MAINTENANCE WINDOW: DIGEX maintains specified time periods during which it may
perform necessary network maintenance and/or network upgrades. These specified
time periods are referred to as "Schedule Maintenance Windows". In the event
DIGEX plans to bring down the Service or the Equipment during a Scheduled
Maintenance Window, DIGEX will provide a 24-hour notice to Customer in advance
of the Scheduled Maintenance Window. In addition, DIGEX reserves the right to
perform any required maintenance work outside of the Scheduled Maintenance
Window with a minimum of 12 hours notification to Customer. However, Customer
understands that at any time DIGEX may perform emergency maintenance as needed
to preserve the overall integrity of the products and services offered as
determined by DIGEX with no notice.
DIGEX SERVICE LEVEL GUARANTEE; If the Customer notifies DIGEX in writing
immediately upon failure to access DIGEX's Services and or Equipment and DIGEX
determines in its reasonable commercial judgment that the outage has been caused
by DIGEX, the Customer will receive a credit against its next monthly invoice.
In the event of a service interruption that exceeds one hour in any calendar
day, DIGEX will grant a credit allowance for that entire day of service,
equivalent to 1/30th of the monthly port and telco service charge, for the
service affected. A service interruption will be deemed to have occurred if
Customer is unable to communicate with or access any other Internet Service
Provider via the IP Transmission Protocol and as a result of failure of DIGEX's
facility, equipment or personnel used to provide the service in question, and
only where the interruption is not the result of a Scheduled Maintenance Window.
CREDIT INFORMATION: Customer consents to standard credit check by DIGEX in
order to confirm credit-worthiness and to DIGEX's disclosure of account
information to or from credit reporting agencies, credit bureaus, private
credit reporting associations, or to or from other providers of
telecommunications services at any time during Customer's service with DIGEX.
LIMITATION OF LIABILITY: DIGEX exercises no control whatsoever over the content
of any information passing through its network and is not responsible for
damages Customer suffers for any reason, including, but not limited to, loss or
degradation of data resulting from delays, non-deliveries, wrong deliveries and
any and all service interruptions whether caused by the acts and omissions of
DIGEX and its employees, of Customer or of any other party. DIGEX makes no
representation that it can provide uninterrupted service. Furthermore, DIGEX
shall have no liabilities other than the credits outlined within due to
interrupted service unless caused by the gross negligence of DIGEX. DIGEX shall
not be liable for acts or omissions of other carriers, equipment failures or
modifications, acts of God, strikes, government actions, or other causes beyond
its reasonable control. DIGEX makes no warranties with respect to the products
or services of any kind whatsoever, express or implied, except as specifically
provided in this agreement. The implied warranties of merchantability and
fitness for any particular purpose are hereby disclaimed and excluded. DIGEX
shall not be liable to its customer or any third party for any special,
punitive, incidental, or consequential damages. Any legal action arising out of
the provision of DIGEX's services shall be brought within a period of one year
of the occurrence or shall be deemed waived. Customer agrees to indemnify and
hold harmless DIGEX from any and all claims resulting from Customer's use of
the equipment or services which cause damage to Customer or any other party.
TRANSFER AND ASSIGNMENT: Neither party, other than for collateral purposes, may
sell, assign or transfer this Agreement without the prior written consent of
the other party, except that DIGEX may assign this Agreement to any of its
affiliates or any person who acquires substantially all of the assets of DIGEX.
Customer may not resell IP accounts or Internet services of any kind from a
DIGEX provided connection without explicit written permission of DIGEX.
GOVERNING LAW: This Agreement is governed by the laws of the State of MD
without regard to its choice of law provisions. ACCEPTANCE: These Terms and
Conditions of the "Agreement" together supersede all previous representations,
understandings or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted.
WEBSIDESTORY May 29, 1998
------------------------- --------------------
Customer Date
/s/ BLAISE BARRELETT
-------------------------
Print Customer Name
------------------------- --------------------
DIGEX Date
<PAGE> 6
[DIGEX LOGO]
CONTRACT ADDENDUM
NON-PAYMENT/ CUSTOMER TERMINATION
Paragraph 8 the 4th sentence should be stricken and replaced to read as
follows:
"If the Customer is terminated by DIGEX for persisting in violation of the
Acceptable Use Policy (after Customer receives notice and a 30-day period to
cure or desist in any such violation), then the Customer will pay (in lieu of
any charges for the remainder of the then current term of the Agreement)
liquidated damages. Liquidated damages will be equal to $150,000 minus the
product of $150,000 and a fraction, the numerator of which is the number of
whole months in the current term of the Agreement already paid for by Customer
and the denominator of which is the total number of months constituting the
current term of the Agreement."
DIGEX SERVICE LEVEL GUARANTEE
Paragraph 10 the 3rd sentence should read as follows:
In the event of a service interruption that exceeds one hour in any calendar
day, DIGEX will grant a credit allowance for that entire day of service,
equivalent to 1/30th of the monthly port and telco monthly service charge or if
the customer experiences eight hours of contiguous service interruption DIGEX
will credit 3 days of monthly port and telco service charges.
AGREED TO BY:
Customer Signature /s/ BLAISE BARRELET Title: President Date: May 28, 1998
---------------------
Blaise Barrelet
DIGEX ACCEPTANCE:
DIGEX Signature__________ Title:_________ Date____________
<PAGE> 7
[DIGEX LOGO]
May 29, 1998
SERVICE LEVEL GUARANTEE:
For Purposes of this agreement, any of the following shall constitute a
breach of Agreement by DIGEX unless the result of matters beyond DIGEX's
control: (i) failure of the service to remain fully operational to its end-users
for at least 99.98% of the total number of hours in any month, or (ii) the
failure to remain fully operational to its end users for a period of more than
one hour and forty five minutes, contiguous or noncontiguous, during any
consecutive 30 day period. If a failure should occur as a result of matters
beyond DIGEX's control, DIGEX shall use its best reasonable efforts to
investigate the cause and to remedy such failure as soon as possible.
DIGEX
By:
-------------------------
WEB SIDE STORY
By: /s/ BLAISE BARRELET
-------------------------
Blaise Barrelet, President