Enterprise Network Service Master Agreement - Cavion Technologies Inc. and Convergent Communications
CONVERGENT
COMMUNICATIONS
ENTERPRISE NETWORK SERVICE MASTER AGREEMENT
PROPRIETARY INFORMATION Agreement Number-----------------
CUSTOMER INFORMATION
(Customer Legal Name) (Effective Date)
Cavion Technologies, Inc.,
a Colorado corporation
doing business as cavion.com October 22, 1999
(Billing Address [Street,
Building, Floor, Room]) (City, State and Zip Code)
7475 Dakin Street, Suite 607 Denver, CO 80221-6920
(Billing Contact) (Telephone, Facsimile, E-Mail,
Pager)
Heather Knop 303.412.3167 hknop@cavion.com
303.657.8210 fax
(Primary Address [Street, Building,
Floor, Room]) (City, State and Zip Code)
Same as above
(Contact Person - Technical and
work direction) (Telephone, Facsimile, E-Mail,
Pager)
Chris Knauer 303.412.3162 cknauer@cavion.com
(Primary Authorized Contact
Person - Amendments) (Telephone, Facsimile, E-Mail,
Pager)
Marshall Aster 303.412.3182 master@cavion.com
Dave Selina 303.412.3165 dselina@cavion.com
SERVICE FEES. The monthly Service Fee for purposes of this Agreement
shall be calculated according to the Fees Schedule, and payable in
accordance with the Agreement Terms.
TERM. The term of this Agreement shall begin on the Effective Date and
shall continue in effect for a period of five (5) year(s) from the
Commencement Date. Both the "Effective Date" and the "Commencement Date"
are defined in the Agreement Terms below.
Customer and Company shall initial below all applicable Schedules to this
Agreement, the terms and conditions of which shall apply as of such date:
[x] -- ENS Equipment Schedule [ ] -- Additional Equipment Schedule
[x] -- Maintenance/Managed
Services Schedule [x] -- Scope of Work Schedule
[ ] -- Telecommunications
Schedule [ ] -- Guaranty
[ ] -- Wireless Schedule [x] -- Certificate of Acceptance
[ ] -- Internet Services
Schedule [x] -- Fees Schedule
[x] -- Network Response Plan
Schedule
This Agreement, together with all Schedules attached hereto (or to be
attached at a later date) is further subject to the Agreement Terms
("Agreement Terms") attached hereto (collectively referred to hereafter as
the "Agreement"). Customer and Company have read and understand the
Agreement Terms and agree to be bound thereby. This Agreement shall not
be effective until signed and dated by a duly authorized representative of
Company and Customer. The parties have executed this Agreement as of the
last date shown below.
Company: Customer:
CONVERGENT COMMUNICATIONS CAVION TECHNOLOGIES, INC.
SERVICES, INC.
By:------------------------------- By:-----------------------------
David J. Selina, President
Name:-----------------------------
Title:----------------------------
Date:------------------------------ Date:----------------------------
Agreement Terms
1. SERVICES. Beginning on the Effective Date, Company shall provide
Customer with the "Services" as described in this Agreement and as
described in the schedules attached hereto (the "Schedules"). All
such Schedules shall be subject to the terms and conditions of this
Agreement and any terms or conditions printed on the Schedules. The
term "Services", when used in a Schedule hereto, shall refer to the
services to be provided under that Schedule only.
2. TERM. The term (the "Term") of this Agreement shall begin on the
Commencement Date. For purposes of this Agreement and each Schedule,
the "Commencement Date" shall be the first day of the month following
the month in which the Effective Date occurs (unless the Effective
Date is the first day of a month, in which case the Effective Date
and the Commencement Date shall be the same.) The Term shall end
upon expiration or termination by Company in accordance with the
terms hereof. For purposes of this Agreement, the "Effective Date"
shall be the date referenced on the face of this Agreement, except to
the extent stated otherwise in a Schedule hereto. Within ten (10)
days of the date Company informs Customer that installation is
complete, Customer shall execute the Certificate of Acceptance,
evidencing Customer's acceptance of the equipment described in an
Equipment Schedule hereto (the "Equipment") and installation
described in this Agreement. In the event that Customer fails to so
deliver the executed Certificate of Acceptance, Customer will be
deemed to have accepted delivery and installation as complete upon
such tenth day. Customer acknowledges that no Services (except the
delivery and installation of Equipment) shall be provided hereunder
or in connection with any amendment or Schedule until Customer
executes the Certificate of Acceptance.
3. PAYMENT. Payment of the Service Fee shall be made monthly in advance
for each month during the Term, beginning with the first payment of
the Service Fee on the Effective Date of this Agreement, and
continuing on the first day of each month thereafter. If the
Effective Date is other than the first day of the month, Customer
shall make an initial payment in an amount equal to the Service Fee
divided by thirty (30), multiplied by the number of days from the
Effective Date to (but not including) the Commencement Date.
Whenever any payment by Customer is past due, Customer shall pay to
Company, as an additional fee, interest on the payment amount until
and including the date payment is received, at the rate of 1.5% per
month or the maximum allowable rate of interest permitted by
applicable law. Customer shall be liable for all costs incurred in
collection of past due balances including but not limited to
collection fees, reasonable attorneys' fees, filing fees and court
costs. Customer agrees and acknowledges that all payments of the
Service Fee, at Company's option, shall be made by electronic
transfer from Customer's bank account to Company or Company's
designated bank account and Customer, upon Company's request, shall
execute all documents reasonably necessary to authorize and
effectuate such means of payment. TIME IS OF THE ESSENCE IN THE
PERFORMANCE OF ALL PAYMENT OBLIGATIONS BY CUSTOMER. Subject to the
Interruption or Unavailability of Service provision below, Customer's
agreement to pay Service Fees hereunder shall be absolute and
unconditional and shall not be subject to any abatement, reduction,
set-off, defense, or counterclaim for any reason whatsoever. Company
reserves the right to require Customer to make a deposit, or provide
a letter of credit satisfactory to Company, in the event (i) Customer
is a new account and has no credit history; (ii) Customer's account
is past due more than twenty-nine (29) days; or, (iii) Customer
indicates an unwillingness or inability to pay. In the event that
Customer fails to provide Company with the required deposit or letter
of credit, Company shall have the right to terminate this Agreement
in accordance with the Default and Remedies provision below.
4. AUTHORIZED CONTACT PERSON. Customer has designated one or more
Contact Person(s) above. Likewise, Customer may have designated one
or more Contact Person(s) with respect to individual Schedules
attached hereto. The Technical Contact Person(s) shall be the points
of contact for and shall provide all work direction to Company. The
Authorized Contact Person(s) shall also have the authority described
in any writing executed by the parties, including without limitation
the authority to execute amendments to this Agreement as defined
below. If during the Term of this Agreement, Customer wishes to
change the Contact Person(s), Customer shall notify Company in
writing of the name, address, and telephone numbers of the new
Contact Person(s).
5. ACCESS TO PREMISES. With respect to Services to be performed on
property owned by Customer, Customer represents that it has the
authority to allow and does grant Company the right of ingress and
egress over Customer's real property and further grants Company a
license to provide those Services described in any Schedule issued
hereunder within the premises described therein. With respect to
Services to be performed for Customer on property not owned by
Customer, it shall be Customer's responsibility to secure, at its own
cost, prior to the commencement of any Services, any necessary rights
of entry, licenses, permits or other permission necessary for
Company to provide Services. Company shall not be liable for delay
in performance or nonperformance of any term or condition of this
Agreement directly or indirectly resulting from Customer's denial to
Company of full and free access to Customer's systems and components
thereof, or Customer's denial to Company of full and free access to
Customer's personnel or premises pursuant to this Agreement essential
for completion of the Services.
6. WARRANTIES AND LIMITATIONS OF LIABILITY
6.1. NEITHER THE COMPANY NOR ITS ASSIGNS MAKES ANY WARRANTY,
REPRESENTATION OR COVENANT, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO THE DESIGN, QUALITY,
CAPACITY OR CONDITION OF THE EQUIPMENT; COMPLIANCE OF THE
EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION
OR AGREEMENT; OR PATENT OR COPYRIGHT OR LATENT DEFECTS. NEITHER
THE COMPANY NOR THE ASSIGNS SHALL HAVE ANY LIABILITY WHATSOEVER
FOR THE BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY THE
MANUFACTURERS OF THE EQUIPMENT. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTY OF
MERCHANTABILITY WITH RESPECT TO SERVICES, EQUIPMENT OR PRODUCTS
FURNISHED HEREUNDER.
6.2. At all times during this Agreement, Company will perform
the obligations expressed herein. In the event that any item of
Equipment is unable to correctly accept, process or display the
year 2000 and any following years (a "Year 2000 Issue"), Company
shall contact the manufacturer of such Equipment in an effort to
remedy the Year 2000 Issue and shall work diligently and
continuously until the remedy is achieved to the maximum
reasonable extent. Except to the extent Company fails to
perform in accordance with preceding sentence and
notwithstanding the contrary, Company shall not be liable for
any delay in performance or nonperformance of any term or
condition of this Agreement directly or indirectly resulting
from a Year 2000 Issue.
6.3. In no event shall either party be liable for any indirect,
incidental, special, punitive, or consequential damages
whatsoever arising out of or in connection with this Agreement,
including, but not limited to, loss of profits, revenue, data or
use, incurred or suffered by either party or any third party,
whether in an action in contract or tort, even if the other
party or any other person has been advised of the possibility of
damages.
6.4. Company shall not be responsible for delay in performance
or nonperformance of any term or condition of this Agreement or
for damage to any Equipment (except as expressly stated in the
Insurance provision below), resulting directly or indirectly
from causes beyond its control, including, without limitation,
neglect, accident, unreasonable use, or servicing or
modification of the work by anyone other than Company or an
organization certified by Company ( "Force Majeure event").
Company makes no claim that it can install or maintain any item
of Equipment in a manner to prevent unauthorized intrusions of
Customer's systems and, therefore, Company shall have no
liability whatsoever, in connection with the unauthorized
intrusion or other abuse of any item of Equipment, other
equipment or system.
6.5. EXCEPT FOR PERSONAL INJURY CAUSED BY COMPANY'S NEGLIGENCE
OR WILLFUL MISCONDUCT, THE ENTIRE LIABILITY OF COMPANY AND ITS
AFFILIATES AND SUBSIDIARIES AND THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND SUPPLIERS FOR ANY DAMAGE OR EXPENSE FROM
ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE TOTAL OF ALL
SERVICE FEE PAYMENTS MADE HEREUNDER.
7. INDEMNIFICATION. Customer hereby agrees to indemnify, defend and
hold Company harmless from and against any and all loss, damage,
cost, expense or liability, including reasonable attorneys' fees,
(collectively called "Damages") to the extent arising from the acts
or omissions of Customer. Customer shall indemnify, defend and hold
Company harmless from any and all Damages arising out of or related
to (i) Customer's possession, use or resale of any product or
Equipment installed or owned by Company; and (ii) the use and content
of any Services provided by Company.
8. CONFIDENTIAL INFORMATION. Company and Customer in the course of
their negotiations and performance of this Agreement and subsequent
relationship may be handling financial, accounting, statistical,
personnel, customer and other business data of Customer or Company.
During the Term of this Agreement, Customer shall furnish to Company
Customer's audited financial statements for the most recent fiscal
year within ninety (90) days of fiscal year-end and quarterly
statements within forty-five (45) days of quarter-end. All such data
is confidential, proprietary and the sole property of Customer or
Company, as the case may be, and shall not be deemed released to the
other party, in the public domain, or for any other reason deemed to
be usable by the other party in any form. Company and Customer agree
not to use, disclose, license or otherwise transfer any such
knowledge relating to the other party in any manner except as is
necessary to implement this Agreement. Notwithstanding the forgoing,
Company reserves the right to disclose Customer data for purposes of
financing to its Assigns, as defined below. Such Assigns will be
bound by a confidentiality agreement similar to this Paragraph before
any data is disclosed.
9. EMPLOYMENT RECRUITMENT. Customer acknowledges that Company provides
a valuable service by identifying and assigning personnel to provide
Services to Customer. Customer further acknowledges that the Customer
would receive substantial additional value and Company would be
deprived of the benefits of Company's work force, if Customer were to
directly hire Company's personnel after they have been introduced to
Customer. As such, Customer shall not, without the prior written
consent of Company, recruit or hire any personnel of Company who are
or have been assigned to perform services during the Term of this
Agreement and until one year after the expiration of this Agreement.
In the event that Customer breaches this Section, Customer shall pay
Company a recruiting fee equal to two (2) times the total annual
compensation paid to Company's employee by Company.
10. ASSIGNMENT. Neither party shall assign all or part of this Agreement
without the prior written consent of the other, which consent will
not be unreasonably withheld or delayed. NOTWITHSTANDING THE
FOREGOING, THE CUSTOMER AGREES THAT COMPANY MAY ASSIGN THIS AGREEMENT
TO CONVERGENT CAPITAL CORPORATION OR ANOTHER FINANCING ORGANIZATION
("ASSIGN(S)") FOR THE PURPOSE OF FINANCING PROVIDED THAT COMPANY
REMAINS RESPONSIBLE FOR THE ULTIMATE PERFORMANCE OF ITS OBLIGATIONS
HEREUNDER. IN THE EVENT OF ANY SUCH ASSIGNMENT TO AN ASSIGN, THE
CUSTOMER SHALL NOT ASSERT ANY DEFENSES COUNTERCLAIM OR SET-OFF
AGAINST THE ASSIGN. Any such assignment shall be subject to
Customer's right to possess and use the Equipment, and shall not
release any of Company's obligations hereunder. To the extent that
an approved assignment by Customer occurs, the terms and conditions
of this Agreement shall be binding upon the successors and assigns of
the parties hereto.
11. INSURANCE. Customer, at its own expense, shall insure the Equipment
at full replacement cost against an Event of Loss (as defined in the
Equipment Schedule hereto, if any) and shall evidence such insurance
by providing Company with an insurance certificate within 10 days of
the Effective Date ("Insurance Certificate"). The Insurance
Certificate shall be issued by an insurance carrier reasonably
acceptable to Company and shall name the Company and its Assigns as
additional insured. The proceeds of such insurance, if any, shall be
used at Company's discretion to either: (i) pay for the replacement
of the Equipment; or (ii) be applied to Customer's payment obligation
hereunder. If applied to Customer's payment obligation, the proceeds
will be discounted at the then current yield of the one year US
Treasury Note and applied to the most time-distant payments first.
The Insurance Certificate shall state that in the event the insurance
coverage is reduced or canceled, then thirty (30) days prior to the
effective date of such event, the insurer will inform Company and any
Assigns of such reduction or cancellation in writing. In addition
to the coverage required above, additional minimum limits of coverage
to be provided by Customer shall be: (i) $100,000/$300,000 for
bodily injury; and (ii) $100,000 for property damage.
12. TAXES. Customer agrees to promptly report, file, pay and indemnify
and hold Company harmless with respect to any and all Taxes. The
term "Taxes" as used herein shall mean all taxes (including sales,
use, excise, personal property, ad valorem, stamp, documentary and
other taxes), and all other governmental fees, charges and
assessments (general or special) due, assessed or levied by any
foreign, federal, state, county or local government or taxing
authority, and any penalties, fines or interest thereon, which are
imposed against, upon or relating to the Equipment or Services or the
use, registration, rental, shipment, transportation, delivery,
ownership or operation thereof, and on or relating to the Service Fee
hereunder, but shall not include any taxes solely based upon or
measured by the income of the Company. Customer further agrees to
pay all property taxes upon the Equipment during the Term and will
reimburse Company for the taxes it pays and for its costs for
preparing, reviewing and filing the personal property tax returns.
Any tax returns filed by Customer shall show Company as the owner of
the Equipment. Customer's Service Fee does not include any
applicable sales, use or personal property tax. If any taxes are
due, Customer agrees to pay the tax in addition to Customer's monthly
Service Fee.
13. UNIFORM COMMERCIAL CODE. Customer shall provide to Company all
instruments and assurances deemed necessary by Company for the
confirmation or perfection of Company's rights hereunder. Customer
authorizes Company or its Assign to file financing statements (with
respect to the Equipment) signed only by Company or the Assign or
signed by Company or the Assign on behalf of Customer, as Customer's
attorney in fact. The parties acknowledge that this Agreement is not
intended to be a secured transaction, as defined by Article 9 of the
Uniform Commercial Code. In the event that this Agreement is deemed
to constitute a secured transaction, Customer acknowledges that
Customer has granted to Company or the Assign, concurrent with
execution of this Agreement, a first priority security interest in
the Equipment and any additions, attachments, upgrades, accessions,
repairs, modifications, replacements thereto and proceeds thereof,
including insurance proceeds, to secure Customer's payment of the
Service Fee and all other payment obligations when due, and
Customer's performance of all of the terms and conditions of this
Agreement. Customer agrees to reimburse Company for any expenses
incurred in preparing and filing such financing statements and other
related documentation costs.
14. DEFAULT AND REMEDIES.
14.1 If Customer shall (i) fail to make payment within ten (10)
days after it becomes due, or breaches one or more of its other
obligations hereunder without correcting the same within 30 days
of written notice (or, where correction cannot be made within
such 30 day period, as soon after such notice as is reasonably
possible using continuous and diligent efforts) from Company
specifying the nature thereof, or (ii) shall apply for, consent
to or suffer the appointment of a receiver, trustee, custodian
or liquidator of all or any substantial part of its assets,
(iii) shall make a general assignment for the benefit of
creditors, or (iv) shall file a petition or answer seeking, or
admitting or shall otherwise take advantage of bankruptcy,
reorganization or other relief under applicable bankruptcy law,
or (v) shall fail to be able to meet its current financial or
other obligations as they become due then this shall be
considered by Company to be an "Event of Default". Upon such
Event of Default, Company may thereupon terminate this Agreement
by giving the Customer thirty (30) days written notice of
termination. Notwithstanding any other provision of this
Agreement, Company may terminate this Agreement upon ten (10)
days prior written notice if the Customer fails or refuses to
pay Company in accordance with the provisions of this Agreement.
14.2 Upon an Event of Default, Company shall have all remedies
available to it under this Agreement, at law or in equity, and
all such remedies shall be cumulative.
14.3 In the event Customer fails to cure a default for non-
payment of amounts due under any payment schedule or invoice, in
addition to terminating this Agreement, Company may retain all
prepayments and recover all remaining sums due under all
Schedules outstanding at the time of the default. In addition to
any other remedies available in law or equity, upon a material
Event of Default by Customer, Company will have the right to
repossess all or part of the Equipment, notwithstanding its
attachment to real estate. In such event, Company may lawfully
enter upon the property of Customer during reasonable hours,
without judicial process, to retake possession of such
Equipment, and may sell or lease such Equipment, continuing to
hold Customer responsible for the difference in the proceeds of
such sale (or lease) and any amounts due in connection with this
Agreement. However, Company's right of repossession is subject
to the transitional provisions described in Section 16.
15. INTERRUPTION OR UNAVAILABILITY OF SERVICE. If, during any month
within the Term, the Services described in any Telecommunications,
Wireless, or Internet Services Schedule are interrupted or become
unavailable to Customer, due to no fault of Customer, a refund of a
portion of the monthly Service Fee will be paid to Customer by
Company. Payment of any refund under this provision is expressly
conditioned upon Customer providing prompt notice of the interruption
to Company by telephone at the telephone number indicated herein and
in writing within ten (10) days. Any such refunds will be made on an
annual basis within 30 days of each anniversary of the Commencement
Date of the Agreement, and will be calculated in accordance with the
following: (A) For telecommunications or wireless Services, a refund
will accrue when telecommunications or wireless Service is
interrupted for any period lasting four (4) or more consecutive hours
after notice from Customer. The amount of the refund shall be
determined by dividing the Customer's average monthly usage charge,
based upon the applicable services and rates, by 1440, and then
multiplying the result by the number of one-half (1/2) hour
increments, or major fraction thereof, of interruption, in excess of
the initial four (4) hours. (B) For Internet Services, if Company
determines, in its reasonable commercial judgment, that (i) Company's
network was unavailable for one (1) or more consecutive hours during
any calendar month a refund equal to the pro-rated charges for (1)
day's Internet Services will accrue; or (ii) Company's network was
unavailable for an aggregate of four (4) or more hours during any
calendar month a refund equal to the pro-rated charges for one (1)
week's Internet Services will accrue. Company shall not be
responsible for, and no refund will be paid in the event that, an
interruption or unavailability of Service is caused by (i)
Customer's, or any other third party's misuse, neglect, accident,
unauthorized modification, or uses in violation of instructions
furnished by Company or the manufacturer; (ii) the failure of
facilities or equipment provided by Customer or any third party;
provided that such failure is not caused by the gross negligence or
willful misconduct of Company; (iii) Company's inability to gain
access to Customer's equipment and facilities; (iv) Customer's
failure to release the telecommunications, wireless or Internet
Service, when requested by Company, to perform testing and
maintenance; (v) equipment for which the serial number has been
removed or altered or, (vi) a Force Majeure event, as described
herein. Scheduled maintenance shall not be deemed to be an
interruption or unavailability of Company's network. Likewise, to
the extent that any amount due under this Agreement is unpaid, any
refund accrued and payable by Company shall be applied to any such
unpaid balance, with any remainder being paid to Customer. This
Section states Company's sole obligation and Customer's exclusive
remedy for any unavailability of Company's network.
16. TERMINATION. This Agreement may be terminated by either party at the
end of the Term or any renewal term thereof provided written notice
of termination is given, at least ninety (90) and not more than one-
hundred twenty (120) days, before the end of the Term. If notice of
termination is not given or if the Equipment is not returned to
Company as notified, the Term of the Agreement shall be extended
month-to-month on the same terms and conditions. Thereafter, the
Agreement may be terminated by either party at the end of any
calendar month by giving the other party six (6) months prior written
notice.
17. RETURN OF THE EQUIPMENT. At the end of the Term, Customer agrees to
immediately return the Equipment, in condition as good as received,
less normal wear and tear, to such place within the United States as
Company designates. The Equipment shall at Customer's sole expense
be properly crated and shipped, by such reasonable means as
designated by Company, freight prepaid and properly insured.
18. NOTICES. Notification of either party to this Agreement shall be
effective upon receipt, or refusal of delivery, when deposited in the
United States Mail, first class mail, certified or return receipt
requested, postage prepaid, or when sent by a nationally recognized
overnight delivery service, to (for Customer) the addresses set forth
above or (for Company) 400 Inverness Drive South, Suite 400,
Englewood, Colorado 80112, Attn: Contracts Administration, or such
other address provided for such purposes by either party.
19. MODIFICATIONS. This Agreement may be modified or amended only by a
written amendment or additional Schedules specifically referencing
this Agreement by number, date, title and parties and executed by a
person authorized to execute agreements on behalf of Customer and
Company. Notwithstanding the foregoing, Customer has delegated
authority to Customer's Authorized Contact Person to execute such
amendments and subsequent Schedules, provided that any such single
document shall not involve an increase in the monthly Service Fee
greater than 10% of the original Service Fee. Any such modification
shall be effective as of the Effective Date applicable thereto.
20. APPLICABLE LAW. This Agreement shall be governed and interpreted
according to the laws of the State of Colorado.
21. SURVIVAL OF PROVISIONS. The parties agree that Section 6, 7, 8, 9,
12, 13, and 18 shall survive termination of this Agreement.
22. COUNTERPARTS. This Agreement is the only original Agreement
assignable for purposes of financing or pledging the assets described
hereunder.
23. COMPLIANCE WITH APPLICABLE LAWS. Each party agrees to comply with
all laws, rules and regulations applicable to the performance of its
obligations hereunder. Without limiting the generality of the
foregoing, the Customer will have responsibility for ensuring that,
except in respect to work performed hereunder by Company, or
Company's subcontractors or agents, the premises meet all applicable
codes or other laws. Customer agrees to promptly correct any
noncompliance with applicable codes and other laws if such
noncompliance in any way prevents Company from performing under this
Agreement.
24. FINAL AGREEMENT. In the event that there are any conflicting terms or
conditions between Agreement Terms and the Schedule Terms, the
Schedule Terms shall control. Likewise, in the event that Customer
submits a purchase order for any Services or Equipment to be provided
by Company, Company shall not be bound by any of the terms or
conditions printed on the purchase order and such terms and
conditions shall be null and void. Any purchase orders shall be
governed by the terms and conditions of this Agreement and any
Schedule(s), as applicable. In the event any provision contained in
this Agreement is for any reason held to be unenforceable in any
respect, such unenforceability shall not affect any other provision
of this Agreement, and the Agreement shall be then construed as if
such an unenforceable provision or provisions had never been included
in this Agreement. The failure of either party to enforce or insist
upon compliance with any of the terms and conditions of this
Agreement, the waiver of any term or condition of this Agreement, or
the granting of an extension of the time for performance, shall not
constitute an Agreement to waive such terms with respect to any other
occurrences. This Agreement, together with any Schedules attached
hereto, or to be attached in the future, or Amendments attached
hereto, sets forth the entire understanding of the parties and
supersedes any and all prior agreements, arrangements or
understandings related to the Services described herein and therein,
and no representation, promise, inducement or statement of intention
has been made by either party which is not embodied herein. Company
shall not be bound by any agents' or employees' representations,
promises or inducements not set forth herein.
CONVERGENT
COMMUNICATIONS
Master Agreement No. -
Schedule No. F - 001
FEES SCHEDULE
Customer Legal Name: Cavion Technologies, Inc.
Company shall issue monthly itemized invoices for (a) Services rendered
under this Agreement, (b) equipment purchased by Customer from Company
under this Agreement but not included in the Equipment described herein,
and (c) any services rendered by Company on a time and materials basis, as
described herein.
The monthly Service Fee includes Customer's use of the Equipment
provisioned by Company under this Agreement, all Equipment management,
monitoring, maintenance and support, and all network connectivity to
Customer's clients and data centers provisioned by Company and described
in the Agreement, and any Schedules thereto, , and will vary to the
extent that additional Equipment or Services may be added to the Services
after the Effective Date. The fees for Services as of the Effective Date
are calculated as follows:
$6,155.28 per month for use of Equipment.
$5,000.00 per month for support.
$1,440.00 per month for DS-3 circuit to Customer's
-------- Denver data center with monitoring.
$12,595.28 total monthly Service Fee
Each additional circuit will be priced as follows (subject to adjustment
as described below) and added to the monthly Service Fee:
$1,285.00 per month for each 1.536K frame relay
connection with monitoring.
$1,060.00 per month for each 1.024K frame relay
connection with monitoring.
$890.00 per month for each 768K frame relay
connection with monitoring.
$740.00 per month for each 512K frame relay
connection with monitoring.
$625.00 per month for each 384K frame relay
connection with monitoring.
$490.00 per month for each 256K frame relay
connection with monitoring.
$410.00 per month for each 128k frame relay
connection with monitoring
$360.00 per month for each 128k frame relay
connections without monitoring
$125.00 per month for each 56k frame relay
connection with or without monitoring
The monthly Service Fee includes the required frame relay connection and
local loop charge. Monitoring is optional, but will affect the Services as
described in the Scope of Work Schedule(s). No installation charges shall
apply under this Agreement. No other non-recurring charges shall apply,
except for equipment purchased and not included as Equipment hereunder and
services rendered on a time and materials basis, as described herein.
Pricing for future DS-3 circuits, T1, ISDN, DSL, and dial-up will be
negotiated on an as-needed basis.
Company agrees that the above rates for circuits will be evaluated every
six (6) months during the Term and adjusted downward to reflect changes in
market pricing for bandwidth.
If Company files a tariff with an appropriate regulatory agency that is
inconsistent with the terms of this Agreement, this Agreement shall
control with respect to existing Services, unless applicable law dictates
that the tariff terms control.
*Adtran equipment listed below is required
at the client site to enable monitoring
(OVER 56K)
- Adtran TSU IQ
- Adtran ESP Adtran Ethernet Card
(56K AND UNDER)
- Adtran DSU IQ
- Adtran ESP Adtran Ethernet Card
CONVERGENT
COMMUNICATIONS
Master Agreement No. -
Schedule No. E - 001
ENS EQUIPMENT SCHEDULE
Customer Legal Name: Cavion Technologies, Inc.
1. EQUIPMENT. The equipment and other products listed below are
referred to herein as the "Equipment" and shall be provided by
Company hereunder.
2. TITLE TO AND LOCATION OF EQUIPMENT.
2.1. Title to each item of Equipment shall remain with Company
or its Assigns at all times and, except as specifically stated
in this Agreement, Customer shall have no right, title or
interest therein. Customer, at its expense, will keep the
Equipment free and clear of all claims, liens, and encumbrances,
other than those which result from acts of Company, and will, at
all times, protect and defend, at Customer's own cost and
expense, the title of the Company or its Assigns from and
against all claims, liens and legal processes of creditors of
the Customer. All items of Equipment shall at all times remain
personal property notwithstanding that any such Equipment may be
affixed to realty. Company may supply labels, plates or other
markings signifying that Company is owner of the Equipment which
Company may attach on the Equipment.
2.2. The Equipment shall be delivered to the location specified
herein and shall not be relocated, displaced or moved without
Company's prior written consent. Customer shall in no event
permit any Equipment to be removed outside the United States.
2.3. COMPANY HAS NO RIGHTS IN OR TO ANY SOFTWARE, AND NO TITLE
OR OWNERSHIP INTEREST IN SOFTWARE SHALL BE TRANSFERRED TO
CUSTOMER, NOTWITHSTANDING CUSTOMER'S EXERCISE OF ANY RENEWAL
OPTIONS HEREUNDER. COMPANY HAS NO OBLIGATION WITH RESPECT TO
SOFTWARE OR SERVICES RELATED THERETO, WHETHER OR NOT COMPANY
FINANCES THE FEES THEREFOR. IN THE EVENT COMPANY FINANCES
SOFTWARE OR SERVICES RELATED THERETO UNDER A SCHEDULE, CUSTOMER
ACKNOWLEDGES THAT SUCH SOFTWARE OR SERVICES SHALL BE SUBJECT TO
ALL PROVISIONS OF THIS AGREEMENT AND THE SCHEDULE.
3. USE OF EQUIPMENT & INSPECTION. During the Term, Customer may possess
and use the Equipment free and clear of any claims arising by,
through or under Company, provided that Customer is in compliance
with the terms of this Agreement. Company shall have the right, upon
reasonable prior notice to Customer and during regular business
hours, to inspect the Equipment.
4. RISK OF LOSS. If any item of Equipment is lost, stolen, destroyed or
otherwise rendered permanently unfit or unavailable for use from any
cause whatsoever (in each case an "Event of Loss") after its delivery
to Customer, Customer shall immediately notify Company.
5. LOSS OF ANTICIPATED TAX BENEFITS. Customer acknowledges that Company
or the Assign intends to claim all available tax benefits of
ownership with respect to the Equipment ("Tax Benefits"), including,
but not limited to, cost recovery deductions as provided in Section
168 of the Internal Revenue Code of 1986, as amended ("Code"), with
respect to each item of Equipment for each of the Assign's or
Company's taxable years during the Term and any Renewal Term.
Notwithstanding anything herein to the contrary, if Company or the
Assign, as applicable, shall not be entitled to, or shall be subject
to recapture of, the Tax Benefits as a result of any act, omission or
misrepresentation of Customer, or because the transaction is
recategorized by a taxing authority, Customer shall pay to Company or
the Assign, as the case may be, upon demand an amount sufficient to
reimburse Company or the Assign for such loss, together with any
related interest and penalties, based on the highest marginal
corporate income tax rate prevailing at the time of such loss,
regardless of whether Company or the Assign or any member of a
consolidated group of which the Assign is also a member is then
subject to any increase in tax as a result of such loss of Tax
Benefits.
EQUIPMENT DESCRIPTION
Quantity Manufacturer Model Description Serial Number
-------------------------------------------------------------------------
SEE ATTACHMENT A FOR A COMPLETE LIST OF EQUIPMENT.
This Schedule is subject to the Master Agreement and the Agreement Terms,
as defined in the Master Agreement entered into between Customer and
Company, as if fully stated herein, and the terms of this Schedule
("Schedule Terms"). Customer has read and understands the Agreement Terms
and the Schedule Terms and agrees to be bound thereby.
CONVERGENT
COMMUNICATIONS
Master Agreement No. -
Schedule No. MS - 001
ENS MAINTENANCE/MANAGED SERVICES SCHEDULE
CUSTOMER LEGAL NAME: CAVION TECHNOLOGIES, INC.
Service Level: Standard Extended Expanded
Service [ ] Service [ ] Service [x]
1. COVERED EQUIPMENT. This Services described in this Schedule shall
apply to the Equipment, as defined in the Equipment Schedule(s) to
the Agreement.
2. SERVICE LEVELS. For purposes of this Agreement, the Service Levels
and corresponding Periods of Coverage shall be categorized as
follows:
(a) STANDARD BUSINESS HOURS: The hours between 8:00am and
5:00pm local time, as applicable, Monday through Friday
excluding Company's published holidays.
(b) EXTENDED HOURS: Standard Business Hours plus the hours
between 6:00am and 8:00am, and 5:00pm to 10:00pm Monday through
Friday, and 8:00am to 5:00pm on Saturday excluding Company's
published holidays.
(c) EXPANDED HOURS: 24 hours/day, 7 days/week including
weekends and Company holidays.
3. SERVICE SCHEDULE. Company shall use reasonable efforts to dispatch
qualified technicians to the Equipment location within four (4)
hours, twenty-four (24) hours each day, seven (7) days each week
after receiving notification of a major interruption of service and
all remote restoration attempts have been unsuccessful. A "major
interruption of service" is defined as an Equipment outage of all or
a substantial part (50% or main console) of the system. All routine
service requests will normally be responded to as follows: If
Customer has selected Standard Service, on the next business day; and
if Customer has selected Extended or Expanded Service, within four
(4) hours (during the periods of coverage) after receiving
notification of the service request. Routine maintenance service
requested outside of the applicable Period of Coverage will be billed
to Customer in accordance with Company's then current Preferred Rate
Table with a minimum of four (4) hours service charge.
4. WORK BY OTHERS. If any maintenance or service work is performed by
others during the period of this Schedule without prior written
consent of Company, or if Customer shall move the Equipment from its
installed location without the prior written consent of Company,
Customer shall pay, immediately upon demand from Company, any
reasonable amounts incurred by Company to bring the Equipment back
into conformance with the Equipment specifications. Likewise, except
as otherwise specifically provided in the Agreement, Company shall
have no obligation to reimburse Customer for any costs associated
with any maintenance or service work performed by parties other than
Company.
5. SCOPE OF SERVICES. Company's Services under this Schedule shall not
include the repair or replacement of parts, nor the labor associated
therewith, required due to (i) theft, loss, or damaged caused by
negligence, tampering, misuse, abuse or a Force Majeure event; (ii)
repairs, maintenance, modifications, relocation or reinstallation by
anyone other than Company or without Company supervision or written
approval; (iii) the use of supplies other than those recommended or
industry recognized equivalents; (iv) non-compatible software or
service required on software use; (v) telephone or other lines
connecting to the Equipment; (vi) unusual shock or electrical damage,
accident, fire or water damage, neglect, air conditioning failure,
humidity control failure, a corrosive atmosphere harmful to
electronic circuitry, damage during transportation or causes other
than from ordinary use; or (vii) failure by Customer to maintain the
site specifications recommended by Company. If Services are required
as a result of any of the causes described above, such Services will
be offered at Company's then current applicable rates. Likewise, this
Agreement shall not include, unless otherwise specifically stated,
(a) equipment owned or operated outside the United States; (b)
expendable items including, but not limited to, paper ribbons, floppy
disks, print heads, toner cartridges, copier drums, batteries, font
cartridges, filters, print engines, and other operating supplies,
telephone headsets and consumable items; and (c) any software
including, but not limited to, application programs, network support,
network design, databases, files, source code, object code or
Customer's proprietary data, or any support, configuration, upgrade,
installation or reinstallation thereof.
6. MODIFICATION OF EQUIPMENT. Company may, if deemed necessary, with no
additional charge to the Customer, make modifications to improve the
operation and/or reliability of the Equipment being serviced pursuant
to the Agreement. Should the Customer not allow Company to
incorporate such modifications, the Equipment may, at Company's
option, be declared ineligible for Services hereunder.
7. RELOCATION OF EQUIPMENT. As part of the Services hereunder, Company
will relocate Equipment within the same facility to a pre-wired and
active location which has connectivity to Company's system. Any
additional relocation services provided by Company shall not be
included within the Services, and shall be billed to Customer in
addition to the Service Fee in accordance with Company's then current
Preferred Rate Table. Customer shall not relocate any Equipment
without Company's prior written approval and shall be responsible for
any loss or damage to the Equipment during any relocation, whether
authorized or not.
8. CUSTOMER'S RESPONSIBILITIES. Customer at its sole expense, shall:
(i) provide appropriate electric current for any necessary purpose
with suitable outlets; (ii) provide suitable and easily accessible
floor space, adjacent to where the Equipment will be serviced; (iii)
provide a suitable controlled environment for the Equipment with
sufficient temperature and humidity controls for sensitive electronic
equipment; and (iv) ensure the timely backup, removal, protection,
and restoration, as applicable, of any programs, data and removable
storage media contained in the Equipment before rendering the
Equipment for service and the restoration of all data after the
completion of service.
9. ADDITIONS TO EQUIPMENT. If Customer desires to have additional
equipment included as part of the Equipment and covered within the
Services, Customer shall notify Company by written request. Company
may, at its option, inspect any such additional equipment to
determine whether or not it is in satisfactory condition to be
covered under this Agreement. Company may, at its option, charge
Customer for inspecting any item of proposed Equipment using
Company's then current Preferred Rate Table. If an item of
additional equipment is to be covered, Customer shall execute a
subsequent Schedule, and the price for coverage shall be established
at then current rates for such Services and added to the Service Fee.
This Schedule is subject to the Master Agreement and the Agreement Terms,
as defined in the Master Agreement entered into between Customer and
Company, as if fully stated herein, and the terms of this Schedule
("Schedule Terms"). Customer has read and understands the Agreement Terms
and the Schedule Terms and agrees to be bound thereby. This Schedule
shall not be effective until signed and dated by a duly authorized
representative of Company.
CONVERGENT
COMMUNICATIONS
Master Agreement No. -
Schedule No. SOW - 001
ENS SCOPE OF WORK SCHEDULE
CUSTOMER LEGAL NAME: CAVION TECHNOLOGIES, INC.
SCOPE OF WORK. In addition to those Services described under each
independent Schedule to the Agreement, the items listed in this Scope of
Work shall be performed by Company in accordance with the Agreement.
1. GENERAL. Customer is building a secure private communications
network for electronic communications and commerce among credit
unions, their members, leagues, service organizations and vendors of
services to credit unions. The parties have agreed that Company will
provide connectivity, equipment, maintenance and related services for
Customer's network on the terms of the Agreement. Although these
services will be provided on a nonexclusive basis, the parties'
expectation is that Company will provide and manage Customer's entire
network infrastructure. Subject to the terms of the Agreement,
Company shall provide the Services, as defined in the Agreement and
modified from time to time, to Customer and to Customer's clients
throughout the United States beginning on the Effective Date.
2. CONNECTIVITY SERVICES. Company shall establish, maintain and support
network connectivity between Customer's network and Customer's
clients as described below (collectively "Connectivity Services"),
including the local loop circuit. Company shall contract with local
telecommunications carriers as needed for this purpose.
2.1. As soon as practical after receiving Customer's request,
circuits shall be provided based on the best option available,
i.e. largest bandwidth for least cost, subject to the client's
choice of transport method. Customer shall provide the exact
location of circuit connection, NPA and NXX of circuit location,
local contact information and required bandwidth. Company shall
test the circuit to verify installation, and shall inform
Customer when installation is complete.
2.2. Company shall make all reasonable efforts to expedite the
local carrier's installation process. For example, if the local
carrier misses its published Standard Interval Date for the
return of Firm Order Commitment ("FOC") dates, Company shall
make all reasonable efforts to escalate receipt of the FOC date.
Company shall immediately notify Customer of this escalation and
final receipt of the FOC date.
2.3. As soon as practical after the Effective Date, Customer's
existing clients (identified in an Amendment to the Agreement)
shall be converted to Customer's Company-owned network at
Company's expense. Company shall inform Customer when conversion
of each client is complete.
3. DATA CENTER CIRCUITS.
3.1. Company shall provide a DS-3 circuit to Customer's Denver
data center, including (a) multiplex capability, allowing
Customer to multiplex and demultiplex between the DS-3 signal
level and the DS-1 or lower signal level, and (b) customer
facing access, allowing Customer to provide access to DS-1 or
lower portions of the circuit to other entities.
3.2. If requested, Company shall provide a DS-3 circuit to
Customer's future data centers, including multiplex capability
and including customer facing access if available.
3.3. Network connectivity to Customer's future data centers,
when implemented, shall include fail over capability allowing
Customer to reroute traffic from a data center experiencing
system disruption or outage to another data center in Customer's
network.
4. CONNECTIVITY SUPPORT. Company shall provide telephone and onsite
support to Customer for network connectivity issues, including NOC-to-
NOC coverage, 24 hours/day, 7 days/week including weekends and
Company holidays. However, it is acknowledged that the monitoring
option for a circuit requires the specified Adtran TSU/DSU deployed
at the remote (credit union) site. Sites which lack the specified
Adtran TSU will not be monitored, but will be supported via a
reactive service support, where Customer personnel inform Company of
a failure at a particular site. If non-Company provided or supported
equipment is determined to be the cause of the failure, Company will
invoice Customer for the service in accordance with Company's then
current Preferred Rate Table. Customer shall be solely responsible
for providing training and support to its clients regarding their use
of Customer's network and the Services.
5. END USER TERMINATION. Company shall suspend or terminate the network
access of any client of Customer as soon as practical after
Customer's written request (including email), and in no event later
than 24 hours after request.
6. TECHNOLOGICAL LEADERSHIP.
6.1. Company shall make commercially reasonable efforts to
improve the Services so as to remain technologically competitive
with industry leading providers, including in terms of network
availability, quality of service, monitoring, security, and data
loss prevention and disaster recovery.
6.2. After consultation with Customer, Company shall make
commercially reasonable efforts to migrate Customer's network
connectivity from frame relay to whatever transport method may
become more desirable given technological developments and
market conditions. Any such migration shall maintain
compatibility with Customer's existing network infrastructure
and that of Customer's legacy clients.
6.3. Company shall make available to Customer any new features
and functions added to the Services, and any new services
offered to its customers generally, on terms no less favorable
than those granted to any other customer.
7. INSTALLATION SERVICES. Upon Customer's request, Company shall
install Equipment and/or provide engineering support of Customer
installations, during the standard business hours of Monday through
Friday, 8am to 5pm. Customer shall be invoiced for such services in
accordance with Company's then current Preferred Rate Table. Where
Company installs Equipment at a Customer data center, Company and
Customer shall first agree to an implementation schedule for the
installation.
8. MONITORING AND REPORTING. In addition to the monitoring and
reporting functions described in the Network Response Plan Schedule,
Company shall provide the following monitoring and reporting for
Customer's network.
8.1. Company shall immediately notify Customer of any circuit,
server or system outage by telephone, or by any other method
mutually agreed.
8.2. Company shall provide Customer with read access to all
network monitoring systems used by Company to monitor Customer's
network, including SNMP network elements. No write changes to
the SNMP elements shall be allowed unless agreed upon by
Company's Network Operations Center and Customer's Network
Operations Center.
9. PROJECT MANAGER. Company shall assign a senior employee (the
"Project Manager") as the single point of contact for services to
Customer under this Agreement, and shall also designate a second
employee with a substantially equivalent skill set for back-up.
Customer shall have the right to interview any candidate for the
Project Manager position, and to review the performance of the
Project Manager at any time. Any Project Manager shall be replaced
upon Customer's reasonable request. In addition to general
responsibility for the implementation of Company's responsibilities
under this Agreement, the Project Manager shall:
- provide status information as needed for current
installations, open trouble tickets, outages, and other current
issues affecting Customer's network.
- provide confirmation of order receipt, initiate the circuit
design and ordering process, and serve as the primary point of
communication for order status.
- proactively escalate overdue circuit orders.
- monitor and supervise all Company reports to Customer under
this Service Schedule and the Network Response Plan Schedule.
- review Company billing statements before submission to
Customer for any discrepancies, and serve as the primary point
of communication for billing related questions.
- provide network designs upon Customer request, and support
technical design questions from Customer.
- coordinate NOC-to-NOC coverage with Customer.
- provide any additional information relating to the Services
and Customer's network that would aid Customer in business
decisions.
10. SOFTWARE SUPPORT. Telephone (including Help Desk) and onsite support
are provided for Operating System and Networking Software.
Application Software support is not provided under this Agreement.
Labor for all Operating System and Networking Software upgrades is
included in the monthly Service Fee. Labor for all Application
Software upgrades will be priced based on the Company's then current
Preferred Rate Table. For purposes of this Agreement, "Operating
System and Networking Software" means network operating systems,
workstation operating systems, server operating systems, email,
network browsers and internet servers, as applicable; "Application
Software" means any end user software application, including word
processors, electronic spreadsheet, and presentation management
software.
Company represents that all Software provided under the Agreement
will be properly licensed copies and unmodified except to the extent
disclosed to Customer in any future Schedule or Amendment to the
Agreement.
11. COOPERATION UPON TERMINATION. Upon termination of this Agreement at
any time, Company shall provide all reasonable assistance to Customer
to migrate any circuits and services provided hereunder to a carrier
of Customer's choice. Customer shall compensate Company for such
assistance on a time and materials basis, based upon Company's then
current published labor rates, and in addition to any other amounts
due under this Agreement. In the event of termination for Customer's
default under this Agreement, the fees in connection with Company's
transition assistance shall be estimated monthly and paid by Customer
in advance, with any unearned amounts paid being refunded to Customer
at the conclusion of services. Further, unless otherwise agreed in
writing, Company's obligation of assistance in connection with the
migration of Customer's circuits shall in no event exceed one hundred
eighty (180) days following the effective date of termination. The
provisions of this section will survive termination of the Agreement
for the period of time specified in this Section and shall apply
notwithstanding contrary provisions in the Agreement (including
without limitation Sections 13.3 and 17 of the Agreement Terms and
Section 3 of the Equipment Schedule). Customer's Network
Configurations archived by Company under the Network Response Plan
Schedule shall be provided to Customer at any time upon request,
including during the transition period described in this Section.
12. SERVICE LEVEL AGREEMENTS.
12.1. In addition to the Service Level Agreements
described in the Network Response Plan Schedule, Company will
guarantee Customer, for each circuit in Customer's network
including mission critical devices, no less than 99.5% "System
Availability" based on monthly review information being
addressed throughout the term of this Agreement. For purposes
of this Agreement, "System Availability" shall mean
availability of the PVC, Modem and 1 mb phone line, and shall
also include proper routing of Internet Protocol connectivity
between client sites and Customer's data centers.
Functionality includes fault resolution and performance
management.
12.2. The parties agree that any scheduled maintenance or
other routine services which require network or Equipment down-
time to perform shall not be included in calculating System
Availability. Scheduled downtime shall not exceed 5 hours in
any week. Company shall make commercially reasonable efforts
to give Customer as much advance notice of scheduled downtime
as practical, and to limit scheduled downtime to off-peak
hours.
12.3. The Monthly Operations Council shall review the
Service Level Agreements under this Agreement at least every
six months, with the intention to modify such Service Level
Agreements as needed to remain competitive with industry
leading providers. Any modification of Service Level
Agreements shall require mutual agreement.
13. INTERNAL EQUIPMENT. No equipment other than the Equipment (as
defined in the Equipment Schedule) is included in this ENS agreement.
This Agreement does NOT include the replacement of any network
equipment at the credit union (remote) site. As future requirements
are identified they will be added to the agreement via an amendment.
14. TRENDING AND ANALYSIS. Trending and Analysis for Customer's network
shall be performed once a month from the Company's National
Operations Center. A Monthly Operations Council will be developed,
comprised of selected management leaders from the Customer and the
Company. This Council will meet on a monthly basis to review and
report the state of this Agreement based on performance, service,
uptime, training, maintenance, support and staffing. An annual review
will be conducted following each anniversary of the Commencement
Date. Personnel of the Monthly Operations Council shall include at
least:
- from Customer: vice president of network
services, director of customer care;
- from Company: the Project Manager, a
senior manager from Implementation, and a
senior manager from Network Operations.
15. The following client site equipment can be purchased by Customer for
the below listed pricing from Company.
Quantity Model Manufacturer Description Price
-------------------------------------------------------------------------
- CISCO 1601 CISCO Ethernet/
Serial Router $1,185.
- CAB-AC CISCO Power Cord,
110V
- S16RCP-12.0.5T CISCO 1600 Series
IOS IP Plus $317.
- MEM1600R-8U10D CISCO 8MB to 10MB
DRAM Upgrade $197.
- CAB-SS-V35MT V.35 Cable, DTE Male
to Smart Serial,
10 Ft. $79.
TOTAL CISCO EQUIPMENT $1,778.
EQUIPMENT REQUIRED FOR MONITORING OPTION
(OVER 56K)
- Adtran TSU IQ Adtran SNMP CSU $1,023.
- Adtran ESP Adtran Ethernet Card $ 132.
TOTAL ADTRAN EQUIPMENT FOR MONITORING $1,155.
(56K AND UNDER)
- Adtran DSU IQ Adtran SNMP CSU $590.
- Adtran ESP Adtran Ethernet Card $132.
TOTAL ADTRAN EQUIPMENT FOR MONITORING $722.
This Schedule is subject to the Master Agreement and the Agreement Terms,
as defined in the Master Agreement entered into between Customer and
Company, as if fully stated herein, and the terms of this Schedule
("Schedule Terms"). Customer has read and understands the Agreement Terms
and the Schedule Terms and agrees to be bound thereby.
CONVERGENT
COMMUNICATIONS
Master Agreement No. -
Schedule No. NRP - 001
NETWORK RESPONSE PLAN SCHEDULE
CUSTOMER LEGAL NAME: CAVION TECHNOLOGIES, INC.
Service Method Functionality Mode SLA Guarantee
(Convergent
Provided)
Expanded Management PVC, Fault Resolution, Proactive 99.5%
Modem and 1mb Performance
Phone Line Management,
Configuration
Management,
Security
Management
MANAGE SERVICES -Fault management provides for a single point of contact
(on the Customer's behalf) for the trouble resolution of all physical and
logical level alarms related to equipment. Emergency/on-going
configuration management relates to necessary changes needed to maintain
the logical configuration of the Managed equipment (Server, Hub, PBX or
Key System, Router, and DSU) during the term of the contract. A more
detailed level of performance reporting is also provided and includes;
Trouble cause distribution, equipment availability, circuit availability,
event summary and event detail reports. Company's Manage service requires
at minimum a 16K CIR Management PVC from the Host site to the Network
Operations Center and a modem and 1MB phone line at each Customer site.
The management PVC, modem and phone line will be provisioned by the
Company and included in the monthly recurring cost of the service.
EQUIPMENT MAINTENANCE
---------------------
Level 4 Same Day Response within 4 hours
On Site Maintenance
24 hours per day, 7 days per week
SERVICE FEATURES
----------------
NETWORK MONITORING
------------------
Network monitoring refers to the PROACTIVE Monitoring of Customer
transport facilities and Customer premise equipment (WAN/LAN interface
ports) for pre-defined network fault alarms. Activities performed include
the following:
o 7x24 coverage of transport and Equipment under contract
o Diagnostic testing of Equipment and transport under contract
o Continuous monitoring of Equipment interfaces under contract,
including the serial interface of routers
o Network transport and access fault resolution/Physical fault Mgmt
Monitoring shall include both the circuit and the IP layer.
FAULT MANAGEMENT
----------------
Fault management provides for the resolution of all logical problems and
coordination of the resolution of all physical and logical equipment
problems under contract. Verification of logical connectivity relates to
the investigation of routing/configuration issues or software related
faults. The following activities will be performed to troubleshoot and
isolate logical related problems:
o Use of Traceroute to determine proper routing path
o Performing SNMP MIB browsing:
- IP network addressing
- Route Table Checking
- interface states
- Box reset (sysUptime)
- Bridging (forwarding database)
o Statistics: LAN (CRC errors, collisions, runts), bandwidth issues
o Confirmation of routing and configuration tables
A central point of contact will be provided to the Customer by the
Company. This will be driven by the Customer's specific call handling
requirements. All necessary testing, dispatches and repairs will be
coordinated by the Project Manager and the Company's Central Technical
Assistance Center.
ON-GOING CONFIGURATION MANAGEMENT
---------------------------------
On-going configuration management provides for necessary changes needed to
maintain logical configurations of Routers, DSU's, Hubs and Servers that
are under identified as equipment. This includes on-demand modifications
to configurations needed to accommodate changes that can be administered
to a specific device without directly affecting the performance of the
overall network. Examples of this include:
o IP address changes and re-configurations
o Remotely enabling or disabling interfaces
o Access List editing
Re-configuration requests that have a direct impact on the operation of
the entire network will require an in-depth planning and evaluation
session that fall outside the scope of the managed equipment offering.
Requests that have a direct impact on the operation could include new IP
addressing schemes, migrating from one protocol to another or migrating
from one type of transport to another (ISDN to Frame Relay).
Emergency re-configuration/downloads and software revision will also be
performed. However, only when deemed necessary or to resolve performance
problems. If firmware/hardware upgrades are required in conjunction with
such upgrades, they will be performed in accordance with Company's then
current Preferred Rate Table.
All Customer Network Configurations must be archived by the Company. This
archived configuration will be necessary for remote re-installations of
the Customers' equipment configurations. The archived copy will be
updated every time there is a change to the configuration.
PERFORMANCE REPORTS
-------------------
Monthly performance reports are included. Monthly Performance reports
including a network analysis is provided to the Customer through a Web
Interface. This will eventually serve as a network tuning/optimization
tool that will be utilized by Customers and the Company to fine tune
network elements based on historical performance. The level of detail
provided is designed to increase per contracted level of service and type
of monitoring employed (RMON I/II etc.).
REPORTS INCLUDE:
STANDARD REPORTS
Usage Counts - Entire Channel
Utilization and Throughput - Entire Channel
Burst Advisor - Entire Channel
Burst Advisor (Multi-Month) - Entire Channel
End to End PVC Burst Advisor
End to End (Multi-Month) Burst Advisor
Most Active Circuits - Entire Channel
Single Ended PVC Usage Counts
End to End PVC Usage Counts
End to End PVC Utilization and Throughput
Multi-Month End to End PVC Service Level Agreement Data
End to End PVC Service Level Agreement Data
CPU Utilization
Protocol Utilization
QOS Alignments
SERVICE LEVEL VERIFICATION EXECUTIVE REPORTS
Service Level Report (showing uptime by individual circuit)
PVC Availability
PVC Data Delivery Ration
PVC Round Trip Delay
CAPACITY PLANNING EXECUTIVE REPORTS
Most Active Access Channels
Most Active PVC's
Network Usage Profile
Most Over-Utilized Access Channels (Tx)
Most Over-Utilized Access Channels (Rx)
Most Over-Utilized PVC's
Most Under-Utilized Access Channels (Tx)
Most Under-Utilized Access Channels (Rx)
Most Under-Utilized PVC's
SECURITY MANAGEMENT
-------------------
Company will take commercially reasonable steps to ensure that the
Services and Customer's network are protected using appropriate security
measures. All security measures employed with respect to Customer's
network will be discussed with Customer and require mutual agreement.
Company will immediately inform Customer of any known security breach and
take all reasonable actions to address any such known security breach in
accordance with Customer's reasonable direction.
SERVICE LEVEL AGREEMENT
Below are the service levels that the Company will provide to the
Customer. The Company requires a 60 day ramp period to gather baseline
information on the Customer's network performance.
System Percentage Time to Restore Response
to Measure Uptime System to Operate Time to Site
Network 99.5% 4 hours 4 hours
Servers 99.5% 6 hours 4 hours
Client Computer Devices 99.5% Next Business Day 4 hours
Telephony Devices 99.5% 8 hours 4 hours
SERVICE LEVEL AGREEMENT PERFORMANCE TABLE
(1) UPTIME is measured on a 24 hour per day, 7 day per week and 365 day
per year basis.
(2) TIME TO RESTORE is measured from the time a component of the system
is reported as "Out-of-Service" until service is restored.
(3) TIME TO ARRIVE ON-SITE is measured from the time both parties
mutually agree to dispatch technical assistance to a clients site(s).
(4) NETWORK consists of: LAN, WAN components, networked printers/devices,
modem lines, Internet lines, ISDN, dedicated data lines, Frame Relay,
ATM xDSL, Hybrid Network Services.
(5) SERVERS consist of: Network Server & Oss, Firewall, Intranet Server,
Internet Servers, Remote Access Servers, Hybrid Servers.
(6) CLIENT COMPUTER DEVICES consist of Desktop computers, laptop
computers, local printers, and hybrid client computers.
(7) TELEPHONY DEVICES consist of PBX/ Key systems/Centrex systems,
desktop phones, cellular phones, and pagers.
PENALTIES
The Company will refund 10% of the monthly Service Fee for any month
during which the agreed upon Service Levels are not met. This refund is
in addition to any other remedies available to Customer under this
Agreement.
ESCALATION
The Monthly Operations Council will maintain an escalation list and
process for responding to network problems.
CONVERGENT
COMMUNICATIONS
PROPRIETARY INFORMATION
CERTIFICATE OF ACCEPTANCE
CUSTOMER INFORMATION
CUSTOMER.
Cavion Technologies, Inc.
7475 Dakin Street
Suite 607
Denver, CO 80221-6920
INSTALLATION LOCATION.
The Customer (i) acknowledges complete delivery and/or installation of the
goods (the "Goods") and completion of the installation services (the
"Services") described in Enterprise Network Services Agreement Number
________________(the "Agreement"), between the Customer and Company; (ii)
hereby accepts said Goods and Services as conforming to and fulfilling
Company's installation obligations under the Agreement; (iii) acknowledges
that the Goods delivered and/or installed and the Services completed meet
the Customer's needs; and (iv) agrees to pay Company for the Goods and
Services in accordance with the Customer's obligations under the
Agreement.
CAVION TECHNOLOGIES, INC.
By:------------------------------
Name:----------------------------
Title:---------------------------
Date:----------------------------
Attachment A
CAVION.COM
NETWORK ASSETS
SEP-99
CATEGORY SUPPLIER PRODUCT NAME
CSU/DSU Adtran TSU 100
CSU/DSU Adtran TSU 100
CSU/DSU Adtran TSU 100
UPS APC Matrix 5000
UPS APC SmartCell XR
UPS APC SmartCell XR
UPS APC SmartCell XR
Power Strip APC Surge Arrest
Switch, Ethernet Bay Networks Bay Stack 350-12T
Switch, Ethernet Bay Networks Bay Stack 350-12T
Switch, Ethernet Bay Networks Bay Stack 350-12T
Switch, Ethernet Bay Networks Bay Stack 350-24T
Keyboard BTC Mini Keyboard
Router Cisco Systems 3620
Router Cisco Systems ISDN 762
Server Compaq DeskproServer
Server Compaq Deskpro EN-SFF (1)
Server Compaq Deskpro EN-SFF (2)
Server Compaq Proliant PPRO-200
Server Compaq Proliant PPRO-200
Server Compaq Proliant PPRO-200
Miscellaneous Computer Sites, Inc. Wood Floor
Server Cubix ERS Fault Tolerant
Router Digital Equip. Corp. Brouter 90T1
Hub Dlink DE812TP+
Fan Generic 120 VAC
Fan Generic 120 VAC
Fan Generic 120 VAC
Power Strip Generic Power Strip
Power Strip Generic Power Strip
Power Strip Generic Power Strip
Power Strip Generic Power Strip
Rack Generic
Rack Generic
Server Hewlett Packard Netserver LH Pro
Server Hewlett Packard NetServer Storage
System 6
Tape Drive Hewlett Packard Sure Store DLT40
Switch, Server Lightwave Communications 5050
Switch, Server Lightwave Communications PC Server Switch Plus
Switch, Server Lightwave Communications PC Server Switch Plus
Switch, Server Lightwave Communications Server Switch
Switch, Server Lightwave Communications Server Switch
Switch, Server Lightwave Communications Server Switch
Switch, Server Lightwave Communications Server Switch
Mouse Logitech Mouse
Card NewBridge Dual T1
Card NewBridge Dual T1
Card NewBridge LGS/LGE
Card Controller NewBridge Mainstreet 3600
Card NewBridge RS232
Server Nokia IP440
Monitor Sun Microsystems 447Z
Keyboard Sun Microsystems 5C
Mouse Sun Microsystems Mouse
Server Sun Microsystems Netra I
Server Sun Microsystems Ultra 5
Power Strip APC Surge Arrest
Telephone Comdial Impact
UPS APC BK500M
Workstation Compaq AP2400
Workstation Compaq AP2400
Software IPSwitch What's UP Gold
Monitor Princeton Ultra 90 - PD 95A
Software Tivoli Netview
UPS APC SmartUPS 1250RM
Switch, Ethernet Bay Networks Bay Stack 350-24T
Patch Panel Generic Power Strip
Dialup Access Server Shiva Lanrover4E
Hub SMC SMC3512TP
Hub U.S. Logic 16 port
Server Sun Microsystems Ultra 5
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1605-R
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1605-R
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1605-R
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1605-R
Router Cisco Cisco 1601
Router Cisco Cisco 1601
Router Cisco Cisco 1605-R
PRODUCT DESCRIPTION LOCATION SERIAL NUMBER
Computer Room 6508087008
Computer Room 702A8835
Computer Room 702A8835713A0108
Control module for
battery backup Computer Room WM9711600877
Extended run Computer Room EP9713332828
Extended run Computer Room EM9835002514
Extended run Computer Room EP9711323261
6 plugs Computer Room N/A
10/100 Ethernet Switch Computer Room KEU0007049
10/100 Ethernet Switch Computer Room KEU0004175
10/100 Ethernet Switch Computer Room KEU0004132
10/100 Ethernet Switch Computer Room KEW0002431
Small profile ps2 keyboard Computer Room 6004801513
64 Meg RAM, 4 WIC V.35
Serial Interfaces Computer Room 362048175
Computer Room 0040F9-1481D5
333 MHz 64 meg RAM, 4.3 gig
HD, 10/100 ethernet card Computer Room HA9851032172
Small profile 400 Mhz,
10 gig HD, 128 meg RAM,
CD-ROM, 2 X 10/100
ethernet cards Computer Room 6846CBN4C301
Small profile 400 Mhz,
10 gig HD, 128 meg RAM,
CD-ROM, 2 X 10/100
ethernet cards Computer Room 6846CBN4C304
200 MHz, 140 Meg RAM,
3 X 4.3 gig + 9.1 gig +
2.1 gig HD, 2 X SCSI cards,
10/100 ethernet card,
20/40 DLT tape. Computer Room D707BJM10283
200 MHz, 128 Meg RAM,
2.1 gig HD, SCSI card,
10/100 ethernet card Computer Room D709BJM10309
200 MHz, 128 Meg RAM,
2 X 2.1 gig HD, SCSI card,
10/100 ethernet card,
1 DAT drive. Computer Room D709BJM10291
152 sq ft Wood core
access floor Computer Room N/A
3 x 200 MHz,3 x 128
Meg RAM, 3 x 4 gig HD Computer Room 895486
Computer Room DA74100155
12 port hub Computer Room N/A
cooling fans Computer Room N/A
cooling fans Computer Room N/A
cooling fans Computer Room N/A
6 plugs Computer Room N/A
9 plugs Computer Room N/A
9 plugs Computer Room N/A
9 plugs Computer Room N/A
6' rack with 1
sliding shelf (Novell) Computer Room N/A
6' rack with 1
sliding shelf (Telecom) Computer Room N/A
Computer Room SG71600436
SCSI device storage
contains 4 X 9
gig SCSI HDs. Computer Room SG83504294
External tape drive Computer Room 1026136
MultiSwitch (Sun/PC) 5050 Computer Room 052397112
8 port PC switch
w/ full set of cables Computer Room 03109921-V
8 port PC switch
w/ full set of cables Computer Room 03109922-V
5 port Sun server switch Computer Room 09230876
5 port Sun server switch Computer Room 09234317
5 port Sun server switch Computer Room N/A
5 port Sun server switch Computer Room N/A
3 button mouse Computer Room N/A
Link to CoSpgs Computer Room 90-0161-02/C
Link to CoSpgs Computer Room 90-0507-01/C
Link to CoSpgs Computer Room 90-1229-02/C
Link to CoSpgs Computer Room 90 0010-10E
Link to CoSpgs Computer Room 90-1644-D1/A
Computer Room 8A990600566
17" SVGA Monitor Computer Room 0014698-9714GN1723
3651338-02
Keyboard Computer Room
3 button mouse Computer Room 37-1586-3
Scotch the backup server Computer Room 708C0078
C1 Loans server Computer Room FW846504244
6 plugs Computer Room FW85210879
Digital Phone Computer Room FW83530282
Personal UPS Conference Room N/A
AP200 - Professional
Workstation, 400 MHz,
128 Meg RAM, 6 gig HD,
with 10/100 ethernet card Conference Room
AP200 - Professional
Workstation, 400 MHz,
128 Meg RAM, 6 gig HD,
with 10/100 ethernet card JSILVIA PB9828139349
Network Monitoring Software JSILVIA D903CCV70102
19' SVGA monitor JSILVIA D903CCV70101
Network Monitoring Software JSILVIA N/A
10/100 Ethernet Switch JSILVIA N/A
160 ports North Hallway S95014964930
North Hallway KEW0002444
8 port TPO North Hallway N/A
16 port North Hallway HE216867
NS2 - Web and DNS North Hallway N/A
Motorola FTS 100 North Hallway 525018269UE2041-
25144401-425
Motorola DDS 64 TROBY FW85010069
JSILVIA ATAX5024852
Motorola DDS 64 Arapahoe CU JAB025317B
Motorola FTS 100 Aurora CU
Motorola FTS 100 Boise CU
WIC-1DSU-56k4 Carolina Trust CU
Motorola FTS 100 Citizens First CU JAB033350B8
Motorola FTS 100 College CU Greeley JAB03320535W
Motorola DDS 64 Community 1st CU JAB023441kd
Motorola DDS 64 Coors CU JAB09236265
WIC-1DSU-56k4 Decible CU
Motorola FTS 100 Denver Police CU JAB02504152
Motorola FTS 100 Denver Public CU JAB03335003
Motorola FTS 100 Gates Community CU JAB09326195
Motorola DDS 64 Johns Manville FCU JAB02504152
Motorola DDS 64 Member One
WIC-1DSU-56k4 Mountain Bell CU
Motorola FTS 100 Metrum Community CU JAB02525OUR
Motorola DDS 64 Peoples CU JAB0332535G
Motorola FTS 100 Power CU JAB09273357
Motorola DDS 64 Racine Municipal CU
WIC-1DSU-56k4 Santa Ana CU
Motorola DDS 64 School District 12
Motorola FTS 100 Southland Civic FCU JAB033050BA
WIC-1DSU-56k4 St. Vrain CU
Westminister FCU JAB023541V6
Wyhy FCU
<TABLE/>
CONVERGENT
COMMUNICATIONS
ENTERPRISE NETWORK SERVICE AGREEMENT AMENDMENT
ENS Agreement Number:
Amendment Number: 001
CUSTOMER INFORMATION
(Customer Name) (Effective Date)
Cavion Technologies, Inc. 10/22/99
(Main Address) (City, State and Zip Code)
7475 Dakin Street, Suite 607 Denver, CO 80221-6920
(Billing Address) (City, State and Zip Code)
Same as Above
(Original Enterprise Network Service Agreement Effective Date) Referred
to herein as the "Agreement".
10/22/99
(AMENDMENT TERMS)
A. Modifications to the Agreement Terms:
1. The last three sentences of Section 2, Term, shall be revised to read
as follows:
Within ten (10) days of the date Company informs Customer that an
installation is complete, Customer shall execute a Certificate of
Acceptance substantially in the form attached to this Agreement, or a
Certificate of Deficiency detailing any deficiencies with the
installation. If Customer fails to deliver a Certificate of Acceptance or
Deficiency, Customer shall be deemed to have accepted delivery and
installation as complete upon such tenth day. If Customer delivers a
Certificate of Deficiency, Company shall diligently and continuously work
to resolve the deficiencies, with Customer's cooperation. When Company
once again informs Customer that installation is complete, the Certificate
of Acceptance cycle shall begin again. No Services (except the delivery
and installation of Equipment) shall be provided in connection with such
installation until Customer either executes a Certificate of Acceptance or
informs Company that Customer has completed the installation.
2. Section 3, Payment, shall be modified as follows:
a. The words "whichever is less" shall be added to the end of the
third sentence.
b. The fifth sentence shall be deleted in its entirety.
c. Clause (i) of the seventh sentence shall be deleted.
3. Section 4, Authorized Contact Person, shall be modified by adding the
words "email address," between the words "address," and "and telephone
numbers" in the last sentence.
4. Section 6.2 shall be modified as follows:
a. The words "any date in or following" shall be added between the
words "display" and "the Year 2000" in the second sentence.
b. The words "and any following years" following the words "the
Year 2000" in the second sentence shall be deleted.
c. The following sentence shall be added as the last sentence of
the Section: "Company has provided and shall continue to provide Customer
with all Year 2000 related information Company receives from Equipment
manufacturers and software providers with respect to Equipment or software
implemented under this Agreement."
5. Section 6.4 shall be modified as follows:
a. The following language shall be added to the end of the first
sentence thereof: ", provided that Company gives prompt notice to
Customer of the Force Majeure event, and proceeds diligently effect a
remedy."
b. The following language shall be added to the end of the second
(last) sentence thereof: ", except to the extent caused by Company's
gross negligence or willful misconduct."
6. Section 6.5 shall be revised to read as follows:
"6.5. EXCEPT FOR DAMAGE OE EXPENSE CAUSED BY COMPANY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, THE ENTIRE LIABILITY OF COMPANY AND ITS
AFFILIATES AND SUBSIDIARIES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS AND SUPPLIERS FOR ANY DAMAGE OR EXPENSE FROM ANY CAUSE WHATSOEVER
SHALL IN NO EVENT EXCEED THE TOTAL OF ALL SERVICE FEE PAYMENTS MADE
HEREUNDER."
7. Section 7, Indemnification, shall be modified by adding the following
language as the last sentence of the section:
"In each case, the indemnity is subject to the conditions that (a) the
indemnifying party is notified of the claim in a timely manner; (b) the
indemnified party provides all reasonable assistance to defend against the
claim at the indemnifying party's expense; and (c) the indemnifying party
is given control of the defense and settlement."
8. Section 8 shall be modified as follows:
a. The words "and technical" shall be added between the words
"business" and "data of Customer" in the first sentence.
b. The word "furnish" in the second sentence shall be changed to
"make available."
c. The following sentences shall be added to the end of the
Section: "The parties agree that the provisions of this Section are
subject to and shall be governed by the terms of the Nondisclosure
Agreement, of even date herewith, executed between the parties. In the
event of any conflicts between the terms of this Section and the
Nondisclosure Agreement, the terms of the latter shall prevail."
9. Section 9, Employment Recruitment, shall be modified to read as
follows:
"EMPLOYMENT RECRUITMENT. Customer acknowledges that Company provides a
valuable service by identifying and assigning personnel to provide
Services to Customer. The parties further acknowledge that each party
would receive substantial additional value and deprive the other party of
the benefits of such party's work force, if a party were to directly hire
the other party's personnel. As such, neither party shall, without the
prior written consent of the other party, recruit or solicit any personnel
of the other party who are or have been assigned to perform services
during the Term of this Agreement and until one year after the expiration
of this Agreement. In the event that either party breaches this Section,
such party shall pay the aggrieved party a recruiting fee equal to two (2)
times the total annual compensation paid to the employee in question.
Each party hereby agrees to indemnify, defend and hold the other harmless
from and against any and all loss, damage, cost, expense or liability,
including reasonable attorneys' fees, to the extent arising from
enforcement of this Section against personnel of the indemnifying party.
In each case, the indemnity is subject to the conditions that (a) the
indemnifying party is notified of the claim in a timely manner; (b) the
indemnified party provides all reasonable assistance to defend against the
claim at the indemnifying party's expense; and (c) the indemnifying party
is given control of the defense and settlement."
10. Section 10, Assignment, shall be modified as follows:
a. The word "(A)" shall be inserted between the words "PROVIDED
THAT" and "COMPANY REMAINS" in the second sentence.
b. The phrase ",AND (B) COMPANY SHALL NOT ASSIGN WITHOUT CONSENT TO
ANY DIRECT COMPETITOR OF CUSTOMER" shall be added to the end of the second
sentence.
11. Section 11, Insurance, shall be modified by adding the words ",or
contractually require Customer's clients to insure," between the words
"insure" and "the Equipment" in the first sentence.
12. Section 12, Taxes, shall be modified as follows:
a. The parenthetical "(except to the extent disputed in good faith
and with appropriate reserves, and then only for so long as such good
faith dispute is pending)" shall be added between the words "pay" and "and
indemnify" in the first sentence.
b. In the third sentence, the words "and will reimburse Company for
the taxes it pays and for its costs for preparing, reviewing and filing
the personal property tax returns" shall be deleted.
c. The following sentence shall be added as a new fourth sentence:
"Company shall give prompt notice to Customer of the potential imposition
on or payment by Company of any Taxes for which Customer is responsible
under this Section."
d. The following sentence shall be added as a new last sentence to
the Section: "Notwithstanding any contrary limitations periods specified
in the Agreement, the provisions of this Section will survive termination
of this Agreement for a period equal to the statute of limitations
governing any Taxes, and will continue to apply to any claim filed within
that period."
13. Section 13, Uniform Commercial Code, shall be modified by adding the
word "reasonably" between the words "assurances" and "deemed" in the first
sentence, and by deleting the last sentence.
14. Section 14.1, Default and Remedies, shall be modified as follows:
a. The words "ten (10) days", wherever they appear, shall be
changed to "forty-five (45)."
b. The first sentence of the Section shall be modified by adding
the word "material" between the words "other" and "obligations".
c. The last sentence of the Section shall be deleted in its
entirety.
15. Section 14.3, Default and Remedies, shall be modified by changing the
words "default of this Agreement" to "Event of Default by Customer" in the
second sentence.
16. Section 17, Return of Equipment, shall be modified to read as
follows:
"RETURN OF THE EQUIPMENT. At the end of the Term, Customer agrees to
immediately deliver possession of the Equipment to Company, in condition
as good as received, less normal wear and tear, at the Equipment
location."
17. Section 21, Survival of Provisions, shall be modified to read as
follows:
"SURVIVAL OF PROVISIONS. The parties agree that Sections 6, 7, 8, 13, and
18 shall survive termination of this Agreement for two years, Section 9
shall survive termination of this Agreement for one year, and Section 12
shall survive termination of this Agreement as stated therein."
18. Section 24, Final Agreement, shall be modified by changing the last
sentence thereof to read as follows: "Neither party shall be bound by any
agents' or employees' representations, promises or inducements not set
forth herein."
19. A new Section 25, Relationship of Parties, shall be added as follows:
"RELATIONSHIP OF PARTIES. The parties are independent contractors.
Neither party is an agent or partner of the other, or has the right to
incur any obligation on behalf of the other. Each party may use the
other's name and trademarks only with the other's prior written consent.
Upon termination of this Agreement, all use of such names and trademarks
shall immediately be discontinued, and each party shall return to the
other all promotional materials and other items bearing the other's name
or trademarks that are in its possession."
B. Equipment Schedule 001
1. Section 1, Equipment, shall be modified to read as follows: "The
equipment and other products listed below are referred to herein as the
"Equipment" and shall be provided by Company hereunder in exchange for
payment of the Service Fee."
2. Section 2.2 shall be modified to read as follows:
"The Equipment is located at the location specified herein and shall not
be relocated, displaced or moved without Company's prior written consent,
which consent shall not be unreasonably withheld or delayed. Company
acknowledges that Customer plans to move its headquarters to 6446 South
Kenton Street, Englewood, Colorado 80111, on or about January 1, 2000, and
consents to relocation of the Equipment in connection with that move. Any
such move shall be at Customer's sole risk and expense. Upon request by
Customer, Company will provide services in connection with the move, and
bill Customer in accordance with Company's then current Preferred Rate
Table for such services. Customer shall in no event permit any Equipment
to be removed outside the United States. The preceding prohibitions
against moving Equipment shall not apply to portable computing equipment
traveling with Customer employees for Customer's business purposes.
Customer agrees to indemnify, defend and hold Company harmless from and
against any and all loss, damage, cost, expense or liability, including
reasonable attorneys' fees, to the extent arising from Customer's
relocation or transportation of any item of Equipment or software to any
location outside of the United States. In any such case, the indemnity is
subject to the conditions that (a) the indemnifying party is notified of
the claim in a timely manner; (b) the indemnified party provides all
reasonable assistance to defend against the claim at the indemnifying
party's expense; and (c) the indemnifying party is given control of the
defense and settlement."
3. Section 2.3 shall be modified by adding the words "EXCEPT AS
DESCRIBED IN SECTION 10 OF THE SCOPE OF WORK SCHEDULE," to the beginning
of the second sentence.
4. Section 5, Loss of Anticipated Tax Benefits, shall be modified as
follows:
a. In the second sentence, the words "any act, omission or
misrepresentation of Customer, or because the transaction is recategorized
by a taxing authority" shall be deleted and replaced with the words "any
default of Customer under the Agreement".
b. The following shall be added at the end of the Section:
5. "If the transaction is recategorized by a taxing authority, and the
recategorization results in Company or the Assign not being entitled to,
or being subject to recapture of, the Tax Benefits, and Customer is
subject to a decrease in tax as a result of the recategorization, Customer
shall pay to Company or the Assign an amount equal to the lesser of (a)
the amount sufficient to reimburse Company or the Assign for such loss
(as described in the preceding sentence) or (b) the amount of Customer's
decrease in tax as a result of the recategorization. Customer's payment
under the preceding sentence shall be made on an annual basis for each tax
year of the Term and any Renewal Term, and shall be due on the due date
for Customer's taxes affected by the recategorization."
5. A new Section 6, Existing Equipment, shall be added as follows:
"EXISTING EQUIPMENT. Company shall purchase from Customer and Customer
shall grant, sell, transfer, convey and deliver to Company all right,
title and interest in and to the Equipment listed in Attachment A to this
Schedule, at an aggregate price of $285,976.60, payable by Company check
no later than noon Denver time on October 27, 1999. Title and risk of loss
to the Equipment shall pass to Company on the Effective Date, without
further action of the parties and without relocating the Equipment. In
lieu of a Certificate of Acceptance, Customer hereby (I) acknowledges that
no delivery or installation of the Equipment is required under the
Agreement; (ii) acknowledges that the Equipment meets Customer's needs;
and (iii) agrees to pay Company with respect to the Equipment in
accordance with Customer's obligations under the Agreement. Customer
agrees to use reasonable efforts to provide Company with all relevant
information regarding the listed Existing Equipment both before and after
Company's purchase thereof."
6. A new Section 7, Customer's Warranties, shall be added as follows:
"CUSTOMER'S WARRANTIES. Customer warrants that (1) Company will acquire by
the terms of this Agreement good title to the assets to be listed in
Attachment A, free from all liens, claims and encumbrances of any kind,
and (2) Customer has the right to sell such assets. EXCEPT AS DESCRIBED
IN THIS SECTION, NEITHER CUSTOMER NOR ITS ASSIGNS MAKES ANY WARRANTY,
REPRESENTATION OR COVENANT, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, BUT NOT LIMITED TO THE DESIGN, QUALITY, CAPACITY OR
CONDITION OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE
REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR AGREEMENT; OR PATENT OR
COPYRIGHT OR LATENT DEFECTS. NEITHER CUSTOMER NOR THE ASSIGNS SHALL HAVE
ANY LIABILITY WHATSOEVER FOR THE BREACH OF ANY REPRESENTATION OR WARRANTY
MADE BY THE MANUFACTURERS OF THE EQUIPMENT OR SOFTWARE PROVIDERS. EXCEPT
AS EXPRESSLY PROVIDED HEREIN, CUSTOMER EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTY OF
MERCHANTABILITY WITH RESPECT TO THE EQUIPMENT."
7. A new Section 8, Software and Data, shall be added as follows:
SOFTWARE AND DATA. Nothing in this Agreement grants Company any
license, right, title or interest in (a) any software not provided by or
through Company under this Agreement, or (b) any data that may reside on
any Equipment while in use by Customer or Customer's clients. Any such
software and data shall be removed by Customer from the Equipment prior to
delivery of possession of the Equipment to Company. If Company
inadvertently receives any Equipment on which such software or data
resides, it shall promptly inform Customer, shall return or destroy the
software or data at Customer's direction, and shall not use the software
or data for any purpose.
C. Maintenance/Managed Services Schedule 001
1. Section 1, Covered Equipment, shall be modified by adding the
following language to the beginning thereof:
"Company shall provide Equipment installation, management, monitoring,
maintenance and support as described in this Schedule, the Scope of Work
Schedule and the Network Response Plan Schedule (referred to in this
Schedule as the "Services".)"
2. Section 3, Service Schedule, shall be deleted.
3. Section 4, Work by Others, shall be modified by replacing the words
"period of this Schedule" with the word "Term" in the first sentence.
4. Section 5, Scope of Services, shall be modified as follows:
a. In the second sentence, the words "at Company's then current
applicable rates" shall be deleted and replaced with the words "in
accordance with Company's then current Preferred Rate Table".
b. The following shall be added at the end of the Section:
"Notwithstanding the preceding limitations in this Section, Company's
Services under this Schedule shall include (1) any repairs, maintenance,
modifications, relocation or reinstallation done with Company supervision
or with Company's written approval; and (2) software support as described
in Section 10 of the Scope of Work Schedule."
5. Section 7, Relocation of Equipment, shall be modified by adding the
words "by anyone other than Company or its designee" between the word
"relocation" and the comma in the third sentence.
6. Section 8, Customer's Responsibilities, shall be modified by adding
the following at the end of the Section:
Notwithstanding the preceding four sections, Customer may perform
maintenance or service work, make modifications to the Equipment, or
relocate Equipment within the same facility, without the consent of
Company and without affecting Company's responsibilities under this
Agreement, provided that (a) Customer has first requested the work from
Company and Company has failed to perform the work in accordance with
Company's responsibilities under this Agreement, and (b) Customer shall be
responsible for any damage to Equipment caused by Customer's performance
of these functions.
7. Section 9, Additions to Equipment, shall be modified by deleting the
last sentence and by adding the following before the second sentence of
the Section:
"If requested, Company shall provide additional network equipment, either
as Company-owned and managed equipment under this Agreement, or as
equipment available for purchase from Company (such as the Cisco and
Adtran equipment described in Section 14 of the Scope of Work Schedule).
Equipment available for purchase shall be offered on price terms no less
favorable than Customer could obtain elsewhere. Company-owned and managed
equipment shall be made available on terms no less favorable than those
applicable to the Equipment under this Agreement (based on pricing no
higher than would apply if Customer purchased the equipment). Any
additional Company-owned and managed equipment shall be listed on a
subsequent Equipment Schedule, and shall be treated as "Equipment" under
this Agreement. If Company does not provide the additional equipment,"
Except as expressly provided in this Amendment, the terms of the Agreement
shall be unmodified, and of full force and effect.
This Amendment to the Enterprise Network Service Agreement ("Amendment"),
together with all exhibits or schedules attached hereto (or to be attached
at a later date) is further subject to the Agreement Terms, as defined in
the Enterprise Network Service Agreement (collectively referred to
hereafter as the "Agreement"). Both parties have read and understand the
Amendment Terms and the Agreement Terms and agree to be bound thereby.
This Amendment shall not be effective until signed and dated by a duly
authorized representative of each party. The parties have executed this
Amendment as of the last date shown below.
CONVERGENT COMMUNICATIONS Cavion Technologies, Inc.
(Customer)
SERVICES, INC. (Company)
By: By:
Title: Title:
Date: Date:
CONVERGENT
COMMUNICATIONS
NONDISCLOSURE AGREEMENT
PROPRIETARY INFORMATION Agreement Number -------------------
CUSTOMER INFORMATION
(Customer Name) (Date)
Cavion Technologies, Inc. October 25, 1999
(Primary Address) (City, State and Zip Code)
7475 Dakin Street, Suite 607 Denver, CO 80221-6920
A. Company and Customer are contemplating entering into a
relationship in which certain proprietary and confidential information,
which is not readily available to the public, belonging to Company and
Customer ("Information") will be disclosed to the other party.
B. Company and Customer desire that the Information not be
disclosed to any other parties unless authorized herein.
This Nondisclosure Agreement is subject to the Agreement Terms ("Agreement
Terms") printed on the reverse hereof and attached hereto (collectively
referred to hereafter as the "Agreement"). The parties have read and
understand the Agreement terms and conditions and agree to be bound
thereby. This Agreement shall not be effective until signed and dated by a
duly authorized representative of Company. The parties have executed this
Agreement as of the last date shown below.
CONVERGENT COMMUNICATIONS Cavion Technologies, Inc.
SERVICES, INC. (Company) (Customer)
By:------------------------------- By:------------------------------
Title:---------------------------- Title: --------------------------
Date: October 25, 1999 Date: October 25, 1999
1. Company and Customer, their employees, subsidiaries, agents and
assigns agree to hold all Information in strict confidence and with the
same degree of care that they provide for their own proprietary
information.
2. Company and Customer warrant and represent that the degree of
care contemplated in Paragraph 1 is adequate and Company and Customer will
take any and all steps necessary to preserve such Information.
3. No disclosure of any Information shall be made by Company or
Customer, their employees, subsidiaries, agents and assigns without the
express written consent of the other party. Each party will immediately
notify the disclosing party upon discovery of any loss, unauthorized
disclosure, or unauthorized use of Information disclosed by the other. In
addition, neither party shall use the Information for any purpose other
than the performance of their obligations under the Enterprise Network
Service Master Agreement between Company and Customer dated the date
hereof (the "ENS Agreement"). Each party expressly agrees that it shall
not use the Information for purposes of developing competitive strategies
or of competing against the other party. It is understood that any
confidential financial information of Customer's clients and their
members, to which Company may have access as network administrator under
the ENS Agreement, and any data concerning Customer's network
configuration and security measures, will be treated as Information of
Customer.
4. This Agreement shall be effective for the term of the ENS
Agreement plus the longest of the following: (a) two years, or (b) in the
case of any trade secret, as long as such information remains a trade
secret.
5. The foregoing restrictions shall not apply to Information which:
(i) was previously known to Company or Customer free of any obligation to
keep it confidential; (ii) is disclosed to third parties by the disclosing
party without restriction; (iii) is or becomes publicly available by other
than unauthorized disclosure; or (iv) is required to be disclosed pursuant
to judicial or administrative proceedings, provided that before disclosure
the non-disclosing party gives the disclosing party written notice of such
requirement and reasonable assistance in obtaining an order protecting the
information from public disclosure. It is understood that Customer is
required to file the ENS Agreement and Amendment 001 to the ENS Agreement
as public documents with the Securities and Exchange Commission, in
connection with Customer's pending initial public offering.
6. The Information shall be deemed the property of the disclosing
party, and, upon request, the non-disclosing party shall return all copies
of all Information in tangible form to the disclosing party, or shall
destroy all such Information and certify to the disclosing party that all
such Information has been destroyed.
7. No rights or obligations other than those expressly recited
herein are to be implied from this Agreement. In particular, no license
is hereby granted directly or indirectly under any patent or copyright now
held by, or which may be obtained by, or which is or may be licensable by
either party. Further, with respect to the Information, the Parties
understand that such Information is subject to change without notice at
any time and that neither party shall have any liability as a result of
any change in Information.
8. Neither this Agreement, nor the disclosure of Information under
this Agreement, nor the ongoing discussions and correspondence between the
parties, shall constitute or imply a commitment or binding obligation
between the parties or their respective affiliated companies, if any,
regarding the subject matter of the Information. If, in the future, the
Parties elect to enter into a binding commitment regarding the subject
matter of the Information, such commitment will be explicitly stated in a
separate written agreement executed by both parties, and the Parties
hereby affirm that they do not intend their discussions, correspondence,
and other activities to be construed as forming a contract regarding the
subject matter of the Information or any other transaction between them
without execution of such separate written agreement.
9. The Parties hereby acknowledge that neither party, nor any of
its respective servants, agents or assigns makes any representations or
warranties whatsoever concerning the accuracy, completeness or correctness
of the Information supplied hereunder, nor must such representation or
warranty be implied.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado.
11. In the event any one or more of the provisions of this Agreement
shall for any reason be held to be invalid or unenforceable, the remaining
provisions of this Agreement shall be unimpaired, and shall remain in
effect and be binding upon the parties.
12. The failure of either party to enforce or insist upon compliance
with any of the terms or conditions of this Agreement, the waiver of any
term or condition of this Agreement, or the granting of an extension of
time for performance, shall not constitute the permanent waiver of any
term or condition of this Agreement, and this Agreement and each of its
provisions shall remain at all times in full force and effect until
modified by the Parties in writing.
13. This Agreement sets forth the entire understanding of the
Parties and supersedes any and all prior agreements, arrangements or
understandings related to the matter described herein.
14. No subsequent agreement between Company and Customer shall be
effective or binding unless it is made in writing and signed by both
Parties.
15. The Parties warrant and
represent that the person executing this Agreement is duly authorized to
execute this Agreement, and to bind the Parties to the terms and
conditions contained herein.