Internet Services Master Services Agreement - E-centives Inc. and SiteSmith Inc.
Internet Services
Master Services Agreement
This Internet Services Agreement (the "Agreement") is between the Customer named
below and SiteSmith, Inc., which is the legal entity for the Internet Services
Business Unit of Metromedia Fiber Network, Inc., which also includes AboveNet
Communications, and is referred to below as "MFN". This Agreement may be
executed by facsimile and/or in multiple counterparts. Once executed by both
parties, this Agreement is effective as of the Effective Date shown below.
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CUSTOMER: e-centives, Inc. SiteSmith, Inc.
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Authorized Authorized
Signature: /s/ David Samuels Signature: /s/ Lindsey Cox
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(print name): David Samuels (print name): Lindsey Cox
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Title: SVP + CFO Title: DIRECTOR - SALES OPS.
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Company Address 6901 Rockledge Drive, 7th Floor MFN Customer ID#
Bethesda, MD 20817
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MFN Contract No.
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Telephone: 240-333-6100
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Facsimile: 240-333-6250 Effective Date: 12/14/01
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DOCUMENTS ATTACHED AND INCORPORATED BY REFERENCE: (CHECK AS APPLICABLE)
Service Order(s):
/X/ INITIAL SERVICE ORDER
(ADDITIONAL SERVICE ORDERS REFERENCING THIS AGREEMENT WILL BECOME APART OF THIS
AGREEMENT WHEN FULLY EXECUTED)
Addenda for AboveNet Co-location, Transit or Virtual ISX:
/X/ AboveNet Co-location: AboveNet Co-location Terms and AboveNet Bandwidth
Terns [1]
/ / AboveNet Virtual ISX: AboveNet Bandwidth Terms and AboveNet Virtual
ISX Terms
/X/ AboveNet Transit: AboveNet Bandwidth Terms
Service Level Agreement (SLA):
[1] SLA for Managed Services (if Customer has ordered Managed Services and
satisfies the requirements of the SLA for Managed Services)
/X/ SLA for ISX Services (for AboveNet Co-location without Managed Services
[or with Managed Services but not meeting the requirements of the SLA for
Managed Services], or AboveNet Virtual ISX or AboveNet Transit)
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As used in this Agreement,
"SERVICES" means the services ordered by Customer on one or more Service Orders.
"Service Order" means the documents signed by the parties and incorporated
herein by reference, setting forth the specific services to be provided, the
term of service, the prices and payment schedule, and any other provisions upon
which the parties mutually agree. All Service Orders will be subject to the
terms and conditions of this Agreement.
"ISX Services" means the provision of AboveNet Co-location Space and/or
bandwidth on the AboveNet Network
"Managed Services" means services related to management of Internet site
infrastructure.
"AboveNet Co-location Space" means the physical area within a co-location
facility owned or controlled by MFN as identified on an applicable Service
Order.
"AboveNet Network" means the network of routers, switches and communication
channels owned or controlled by MFN.
Additional terms are defined below.
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FEES AND BILLING.
SERVICE CHARGES. Customer agrees to pay the monthly charges for Services and
any set up and other charges indicated on the Service Order(s) or
otherwise due hereunder (collectively, "Service Charges"). Service
Charges do not include any applicable taxes, which may be billed to
Customer in addition to the Service Charges. If a Service Order
provides for deferred payment of set-up costs over time, Customer
acknowledges that it is responsible for paying in full the MSA 01 06-12
2 remaining balance of such set-up costs in the event of any early
termination of the Service Order or this Agreement for any reason
whatsoever:
"BURST" BANDWIDTH. Billing for connectivity beyond the committed level ("burst"
bandwidth) will follow the "95th percentile" rule: Usage samples will
be collected and sorted from highest to lowest and the top 5%
discarded. The next highest sample (the 95th percentile number) will
then be used as the basis in computing the charge for the month for
bandwidth beyond the committed level.
BILLING AND PAYMENT TERMS. Beginning on the date of commencement of the
Services, as set forth in the Service Order or otherwise documented,
Customer will be billed monthly in advance for the contracted Services;
except for specified one-time additional Services ordered by Customer
and for "burst" bandwidth, which will be billed after the end of the
month. All Service Charges and other fees will be due in U.S. dollars
within thirty (30) days of the date of invoice. Late undisputed
payments will accrue interest at a rate of one and one-half percent
(1 1/2%) per month or the highest rate allowed by applicable law,
whichever is lower. As used herein, undisputed amounts shall refer to
all amounts due
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and owning hereunder, excusive of any charges or fees which Customer
in good faith disputes as the result of a disagreement as to usage or
performance. If Customer fails to make payments when due anti does not
cure such failure pursuant to the terms hereof, MFN may require
payment in advance of further Services.
SERVICES. The Services will be provided to Customer on the terms set forth on
the Service Order(s), subject to the provisions of this Agreement. Requests for
additional Services may be made to MFN's sales staff or by e-mail to
contracts@sitesmith.com and will be effective when accepted by MFN. Such
additional Services shall result in an increase in the Service Charges as set
forth in the Service Order. For additional services outside the scope of this
Agreement (including any Service Order), MFN must receive 72 hours advance
notice before commencing such services, or may bill Customer a $500 rush
services charge.
EQUIPMENT.
EQUIPMENT SALES. If any Service Order includes the sale of equipment to Customer
(including hardware, software, or other equipment), Customer agrees to
pay the prices specified in the Service Order plus all applicable
taxes, import and custom duties, and similar charges, upon the terms
set forth herein. All risk of loss or damage to such equipment passes
to Customer upon installation to Customer's data center space or such
other point designated in the Service Order. Title passes to Customer
when all outstanding balances due for such equipment are paid in full.
In the event Customer defaults on its payment obligations hereunder,
MFN may enter the premises wherein the equipment may be found and take
possession and remove such equipment following notice as defined in
Section 9.1.
MFN-SUPPLIED EQUIPMENT. Customer shall have no right or interest in any
MFN-supplied equipment other than the right to use such equipment
during the specified term or until any earlier termination of this
Agreement Customer shall be liable to MFN for any damage to such
equipment to the extent caused by Customer or Customer's
representatives, agents or employees.
WARRANTY. MFN represents and warrants that (i) it has the power and authority to
enter into and perform its obligations under this Agreement and (ii) it will
provide the Services at a professional level of quality conforming to generally
accepted industry standards and in compliance with all applicable laws and
regulations. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CUSTOMER'S USE OF THE
SERVICES ARE AT CUSTOMER'S OWN RISK, AND MFN DOES NOT MAKE, AND HEREBY
DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE, OR TRADE PRACTICE. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THERE IS NO
WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE.
DISCLAIMER OF THIRD PARTY ACTIONS AND CONTROL. MFN does not and cannot control
the flow of data to or from the AboveNet Network and other portions of the
Internet. Such flow depends in
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large part on the performance of Internet services provided or controlled by
third parties. At times, actions or inactions caused by these third parties can
produce situations in which Customer connections to the Internet (or portions
thereof) may be impaired or disrupted. It cannot be guaranteed that such
situations will not occur and, accordingly, MFN disclaims any and all liability
resulting from or related to such events. In the event that Customer's use of
the Service or interaction with the Internet or such third parties is causing
harm to or threatens to cause harm to the AboveNet Network or its operations,
MFN shall have the right to suspend the Service. MFN shall restore Service at
such time as it reasonably deems that there is no further harm or threat of harm
to the AboveNet Network or its operations.
LIMITATIONS OF LIABILITY.
EXCLUSIONS. In no event will either party be liable for any incidental,
punitive, indirect or consequential damages (including without
limitation any lost revenue or lost profits) or for any loss of
technology, loss of data, or interruption or loss of use of Service
(except as set forth in any applicable Service Level Agreement) or any
other similar claims by a party or related to Customer's or MFN's
business, even if MFN or Customer, as applicable, is advised of the
possibility of such damages.
MAXIMUM LIABILITY. Notwithstanding anything to the contrary in this Agreement,
either party's maximum aggregate liability to the other related to or
in connection with this Agreement whether under theory of contract,
tort (including negligence), strict liability or otherwise will be
limited to the total amount due to MFN from Customer hereunder for the
first twelve (12) month period of the Agreement.
INDEMNIFICATION.
COVERED CLAIMS. Each party (the "Indemnifying Party" for purposes of this
Section) will indemnify, defend and hold harmless the other party (the
"Indemnified Party"), its directors, officers, employees, and
affiliates (collectively, the "Indemnified Entities") from and against
any and all claims, actions or demands brought against any of the
Indemnified Entities alleging: (a) infringement or misappropriation of
any intellectual property rights by the Indemnifying Party except to
the extent caused by the Indemnified Party; (b) defamation, libel,
slander, obscenity, pornography, or violation of the rights of privacy
or publicity, or spamming or any other tortious or illegal conduct; (c)
any property loss suffered by any other customer of MFN resulting from
acts or omissions by the Indemnifying Party or its representative(s) or
designees; (d) any personal injury suffered by any representative,
employee or agent of the Indemnified Party arising out of such
individual's activities related to the Services except to the extent
caused by the Indemnified Party's negligence or willful misconduct.
NOTICE PROCEDURE. The Indemnified Party will provide the Indemnifying Party
with prompt written notice of each Covered Claim of which the
Indemnified Party becomes aware. At the Indemnified Party's sole
option, it may elect to participate in the defense and settlement of
any Covered Claim, provided that such participation shall not relieve
the Indemnifying Party of any of its obligations under this Section.
The Indemnifying Party shall have the right to control the defense of
any Covered Claim.
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TERM. This Agreement will commence on the Effective Date and will expire upon
the expiration of all Service Order(s) hereunder, unless sooner terminated as
provided herein. Each Service Order will have the term specified therein, and
after the initial term will automatically renew on a monthly basis until
Customer terminates with 30 days prior written notice to MFN.
TERMINATION.
CONVENIENCE. After the initial term, Customer may terminate this Agreement
upon 30 days prior written notice.
NONPAYMENT. In addition to its rights under Section 9.4 below, MFN may suspend
service to Customer if Customer is in breach of its payment obligations
hereunder and has failed to make such payments after having received 10
days notice of such breach from MFN. Reinstatement of Services may
involve costs, for which a reasonable reconnection fee may be required.
BANKRUPTCY. Either party may terminate this Agreement upon written notice to the
other party if such other party becomes the subject of a petition in
bankruptcy or any proceeding relating to insolvency, receivership, or
liquidation for the benefit of creditors, if such petition or
proceeding is not dismissed within 60 days of filing.
BREACH. Except as otherwise stated, either party may terminate this Agreement
if the other party breaches any material term or condition of this
Agreement and falls to cure such breach within ten (10) days after
receipt of written notice of the same. If Customer terminates the
Agreement pursuant to this Section 9.4, its payment obligations to MFN
shall cease as of the end of the cure period.
EFFECT OF TERMINATION. Upon expiration or termination of this Agreement: (a)
MFN will cease providing the Services and (b) except in the case of
termination by Customer pursuant to Section 9.4, all of Customer's
payment obligations under this Agreement, including but not limited to
the Service Charges through the end of the Term indicated on the
Service Order(s) will become due in full immediately, and (c) MFN
reserves the right to restrict Customer's physical access to its
equipment in any facility of MFN and to hold such equipment securely
until payment in full has been received or until such equipment is
taken in full or partial satisfaction of any lien or judgment.
SURVIVAL. The Parties' respective representations, warranties, and covenants,
together with obligations of indemnification, confidentiality and limitations on
liability will survive the expiration, termination or rescission of this
Agreement and continue in full force and effect.
MISCELLANEOUS PROVISIONS.
FORCE MAJEURE. Other than with respect to failure to make payments due,
neither party shall be liable under this Agreement for delays, failures
to perform, damages, losses or destruction, or malfunction of any
equipment, or any consequence thereof, caused or occasioned by, or due
to fire, earthquake, flood, water, the elements, labor disputes or
shortages, utility curtailments, power failures, explosions, civil
disturbances, governmental actions, shortages of equipment or supplies,
unavailability of
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transportation, acts or omissions of third parties, or any other cause
beyond its reasonable control.
CONFIDENTIALITY. Each party agrees that all information furnished to it by the
other party, or information of the other party to which it has access
under this Agreement, shall be deemed the confidential and proprietary
information (collectively referred to as "Confidential Information") of
the Disclosing Party and shall remain the sole and exclusive property
of the Disclosing Party (the party furnishing the Confidential
Information referred to as the "Disclosing Party" and the other Party
referred to as the "Receiving Party"). Each party shall treat the
Confidential Information and the contents of this Agreement in a
confidential manner, shall use such information only to the extent
necessary to perform its obligations hereunder, and, neither party may
directly or indirectly disclose the same to anyone other than its
employees on a need to know basis and who agree to be bound by the
terms of this Section, without the written consent of the Disclosing
Party. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the Receiving Party
prior to receipt from the Disclosing Party directly or indirectly from
a source other than one having an obligation of confidentiality to the
Disclosing Party; (ii) becomes known (independently of disclosure by
the Disclosing Party) to the Receiving Party directly or indirectly
from a source other than one having an obligation of confidentiality to
the Disclosing Party; (iii) becomes publicly known or otherwise ceases
to be secret or confidential, except through a breach of this Agreement
by the Receiving Party; (iv) is independently developed by the
Receiving Party-, or (v) is required to be released by law or
regulation, provided that the Receiving Party provide prompt written
notice to the Disclosing Party of such impending release, and the
Receiving Party cooperate fully with the Disclosing Party to minimize
such release.
MARKETING. Upon Customer's prior review and approval, MFN may refer to Customer
by name and with logo in MFN's marketing materials and website and may
promote Customer's business and use of the Services through a press
release, advertising, and other marketing literature.
GOVERNMENT REGULATIONS. Customer will not export, re-export, transfer, or make
available, whether directly or indirectly, any regulated item or
information to anyone in connection with this Agreement without first
complying with all export control laws and regulations which may be
imposed by any government within whose jurisdiction Customer operates
or does business.
ASSIGNMENT. Neither party may assign its rights or delegate its duties under
this Agreement either in whole or in part without the prior written
consent of the other party, except to an affiliate or a party that
acquires substantially all of the assigning party's assets or a
majority of its stock as part of a corporate merger or acquisition. Any
attempted assignment or delegation without such consent will be void.
This Agreement will bind and inure to the benefit of each party's
successors and permitted assigns.
NO RESALE. Customer may not resell the Services. For purposes of this
Section, the provisioning of web-hosting on Customer's equipment and/or
ISP service is not considered reselling
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the Services. Customer hereby indemnifies MFN against any harm or any
claims arising out of acts or omissions of any customers of Customer
or other third parties using Customer's equipment or service that is
the subject of this Agreement.
NOTICES. Any required notice hereunder may be delivered personally or by
courier, or mailed by registered or certified mail, return receipt
requested, postage prepaid, to either party at the name and address on
the signature page of this Agreement, or at such other address as such
party may provide to the other by written notice. Such notice will be
deemed to have been given as of the date it is delivered personally or
by courier, or five (5) days after it is sent by mail. In addition,
AboveNet shall have the right to send Customer notices, other than
notices for default or termination, to Customer's email address as
contained on AboveNet's customer contact list. Such email notification
is deemed delivered on the day sent unless returned to sender.
RELATIONSHIP OF PARTIES. This Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between the
parties.
CHANGES PRIOR TO EXECUTION. Each party represents and warrants that any changes
to this Agreement made by it were properly marked as changes and that
it made no changes to the Agreement that were not properly identified
as changes.
CHOICE OF LAW. This Agreement will be governed by and construed in accordance
with the laws of the State of New York, excluding its conflict of laws
principles.
GENERAL. This Agreement, together with the Service Order(s) and Service Level
Agreement(s) and Exhibit(s) (including the policies referred to therein) is the
complete agreement and understanding of the parties with respect to the subject
matter hereof, and supersedes any other agreement or understanding, written or
oral. This Agreement may be modified only through a written instrument signed by
both parties. Should any provision of this Agreement be declared void or
unenforceable, such provision will be deemed amended to achieve as nearly as
possible the same economic effect as the original terms and the remainder of
this Agreement will remain in full force and effect. If a conflict arises
between a party's pre-printed business form and this Agreement or between a
Service Order and this Agreement, this Agreement will take precedence.
End of Internet Services Agreement
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Addendum: AboveNet Co-Location Terms
USE OF SPACE. Customer may use the AboveNet Co-location Space only for the
purposes of maintaining and operating computer equipment as necessary to support
links to the AboveNet Network and from there to third parties.
CUSTOMER EQUIPMENT. Customer is the owner of the Customer Equipment and conveys
no rights or interests therein to MFN except as specifically set forth in this
Agreement. Except as otherwise provided herein, Customer is responsible for all
aspects of installation and removal of its equipment, including bringing
appropriate related equipment, tools and packaging materials. Customer will
install its equipment in the AboveNet Co-location Space after obtaining the
appropriate authorization from MFN to access the premises. Customer will remove
all packaging for its equipment promptly after installation. Should Customer use
an agent or other third party to deliver, install or remove its equipment,
Customer will be solely responsible for the acts of such party. At Customer's
option, MFN will remove and package Customer's equipment and place it in a
designated area for pick-up, on the condition that Customer either provide or
pay for all needed packaging plus pay MFN's packaging fees and charges. Within
five (5) days after authorization from MFN, Customer will remove its equipment
from the designated area or arrange on a pre-paid basis for a carrier to pick-up
and ship such equipment to Customer. Within ten (10) days after any termination
of the Services, Customer will remove all of its equipment and any other
property from MFN's premises and return the AboveNet Co-location Space in the
same condition as it was prior to Customer installation, normal wear and tear
excepted. If Customer does not remove such property within the ten (10) day
period, MFN, at its option and at Customer expense, may remove and store any and
all such property or return such equipment to the Customer, or dispose of such
equipment without liability for any related damages. Notwithstanding the
foregoing, MFN reserves the right to deny Customer the right to remove Customer
equipment from the Co-Location facility in the event Customer is not current in
the payment of its obligations hereunder. Except as specifically provided
herein, Customer expressly assumes all risk of loss to its equipment in the
AboveNet Co-location Space. Customer shall be liable to MFN for any damage to
the AboveNet Co-location Space or equipment of MFN or its other customers to the
extent caused by Customer, Customer's equipment or Customer's representatives,
agents or employees.
SECURITY AND ACCESS PROCEDURES. Customer may access the AboveNet Co-location
Space only in accordance with the AboveNet Co-location Security and Access
Procedures as set forth in the documentation provided to Customer. MFN reserves
the right to suspend for good cause the right of any of Customer employees,
agents or representatives to visit and/or access the AboveNet Co-location Space
and related premises, based on such employees', agents' or representatives'
conduct. It is Customer's responsibility to ensure that Customer's access list
is current and accurate. Customer shall be responsible for any unauthorized
access to its equipment through the Internet and any resulting use of Service.
CROSS CONNECTS. Customer connections to anything inside the Co-location other
than the AboveNet Network is subject to reasonable approval by MFN and may not
be used to (i) provide services inside the Co-location facility that are
competitive to the Internet services provided by MFN inside, or by connections
to, the Co-location facility, or (ii) assist others to provide such services.
Use of any such connections is subject to audit by MFN, who reserves the right
to
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suspend any connection found to be in violation of the foregoing, provided it
gives prompt notice to Customer. Customer is responsible for ordering,
maintaining, terminating and paying for any approved cross-connects or other
circuits provided to Customer.
NO LEASE. This Agreement is a services agreement and is not intended to and will
not constitute a lease of or tenancy or other interest in the Co-location Space
or other MFN premises, any equipment or any other real or personal property.
INSURANCE. Customer will keep in full force and effect during the term of this
Agreement: (i) commercial general liability insurance in an amount not less than
one million dollars ($1,000,000) per occurrence for bodily injury and property
damage; (ii) employer's liability insurance in an amount not less than one
million dollars ($1,000,000) per occurrence; and (iii) workers' compensation
insurance in an amount not less than that required by applicable law. Customer
also agrees that it will be solely responsible for ensuring that its agents
(including contractors and subcontractors) maintain other insurance at levels no
less than those required by applicable law and customary in Customer's and its
agents' industries. Prior to installation of any equipment in the Co-location
Space or otherwise as MFN may request, Customer will furnish MFN with
certificates of insurance which evidence the minimum levels of insurance set
forth above, and will cause its insurance MFN(s) to name MFN as an additional
insured and notify MFN in writing of the effective date of such coverage.
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Addendum: AboveNet Bandwidth Terms
ACCEPTABLE USE; SPAM. Customer will at all times comply with and conform its use
of the Service to the AboveNet Acceptable Use Guidelines and AboveNet Anti-SPAM
Policy, as found at http://www.mfn.com/antispam.shtm and
http://www.mfn.vom/use.shtm, as updated from time to time, subject to notice to
Customer of any material changes. In the event Customer violates the AboveNet
Acceptable Use Guidelines where MFN determines in its reasonable discretion that
there is potential harm to its Network or business, MFN shall have the right to
immediately suspend Service. In other cases of violation of the AboveNet
Acceptable Use Guidelines and AboveNet Anti-SPAM Policy, MFN will provide notice
and opportunity to cure, to the extent MFN deems reasonably appropriate,
depending on the nature of the violation, the availability of the Customer and
whether or not there has been a repeat violation. MFN, in its reasonable
discretion, shall re-enable the Service upon satisfaction that all violations
have ceased and with adequate assurance that such violations will not occur in
the future.
ILLEGAL USE. Customer will cooperate in any investigation of Customer's alleged
illegal use of MFN's facilities or other networks accessed through the AboveNet
Network. If Customer fails to cooperate with any such investigation, MFN may
suspend Customer's Service. Additionally, MFN may modify or suspend Customer's
Service in the event of illegal use of the AboveNet Network or as necessary to
comply with any law or regulation, including the Digital Millennium Copyright
Act of 1998, 17 U.S.C. 512, as reasonably determined by MFN.
OTHER NETWORKS. Customer is responsible for paying any fees, obtaining any
required approvals and complying with any laws or usage policies applicable to
transmitting data beyond the AboveNet Network and/or through other public and
private networks. MFN is not responsible or liable for performance or
non-performance of such networks or their inter-connection points.
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Addendum: AboveNet Virtual ISX Terms
CUSTOMER RIGHTS AND, RESPONSIBILITIES.
ACCESS TO CUSTOMER PREMISES. Customer must obtain all necessary third-party
approval for access by MFN into the Customer Premises set forth on the
Service Order. Specifically and without limitation, Customer shall
obtain approval for external access by MFN (permission to build a
fiber/fiber conduit connection into the building) and/or for bringing
riser conduit or other inside plant facilities into the Customer
Premises (as defined on the Service Order). Such approval must extend
to installation, maintenance and retrieval of such fiber, conduit and
other inside plant facilities. Customer will pay all fees, recurring
and non-recurring, assessed by any building owner, landlord or other
third party for the necessary approval and permission to access or
build into a Customer Premises. In the event that Customer has failed
to obtain such approvals at least 5 days prior to the Estimated
Activation Date for the Service Order, MFN shall have the right to
begin billing Customer for Services on the later to occur of the
Estimated Activation Date or the date on which MFN has installed fiber
to point of entry or the last serving manhole outside the Customer
Premises. Customer shall provide MFN with access to MFN's equipment in
the Customer Premises on 2 hours notice.
PROVISION OF SPACE. Customer shall furnish MFN space within the Customer
Premises necessary to operate MFN's equipment in the Customer Premises.
Customer Premises shall meet or exceed the specifications set forth
below. Customer shall furnish MFN access to the Customer Premises and
MFN's equipment at all times as MFN deems necessary to operate and
service the AboveNet equipment.
ABOVENET EQUIPMENT. Customer shall not and shall not permit its employees,
agents, contractors or other third parties to disconnect, interfere
with, operate, modify or attempt to service MFN's equipment on the
Customer Premises. MFN or its agents will perform all maintenance and
repairs to its Equipment and the AboveNet Network at no additional
charge to Customer, unless such maintenance or repair was necessary as
a result of Customer's actions. Customer shall be liable for all damage
to the AboveNet Network or equipment resulting from its negligence or
intentional misconduct, or violation of this Section.
AUTHORIZATIONS. MFN will use commercially reasonable efforts to obtain, maintain
or renew all Authorizations throughout the Term. If any modification or
termination of or failure to obtain an Authorization prevents or
materially interferes with MFN's control, possession and/or use of the
AboveNet Network or its ability to provide the Services then MFN shall
have the right, to the extent such event affects the provision of the
Services, to terminate this Agreement with respect to the affected
Services without further obligation or liability to Customer. The
foregoing is MFN's sole and exclusive liability and Customer's sole and
exclusive remedy with respect to termination as a result of the loss of
an Authorization. "Authorization(s)" means all material and applicable
authorizations, leases, licenses, easements, rights of way, franchises,
approvals, permits, orders,
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consents, and all other rights required for MFN to operate and
maintain the AboveNet Network.
VIRTUAL ISX SERVICE DESCRIPTION AND REQUIREMENTS.
VIRTUAL ISX NETWORK DESCRIPTION. The network provided consists of:
o Network connection allows from up to 1 Gigabit to Multi-Gigabits
of Internet capacity. Maximum bandwidth is set forth in the
Service Order. A dark fiber ring (2 fibers), with dual building
entrance; connecting `customer location' and `connecting ISX'
unless otherwise specified in the Service Order.
o The dark fiber will terminate into a MFN-managed WDM system that
will reside on the customer premises.
o Client interface is Gigabit Ethernet. Either a multimode fiber
connection (850nm) or singlemode fiber connection (1310nm). SC
connector required (customer provided). MFN will install a patch
panel for client connection Network Design Option: Customer has
two redundancy options. Customer must choose one.
o Layer 1 Protection - single client connection; protection or
restoration at optical layer.
o Layer 3 Protection dual client connection; protection or
restoration at IP layer via dynamic routing protocol.
CUSTOMER REQUIREMENTS. MFN will install, monitor and manage MFN's equipment on
the Customer Premises. The customer will be required to furnish MFN:
o Site Access 24 x7 access to the Customer Premises to install and
maintain MFN's equipment.
o Space: Customer will be required to provide adequate space for
MFN's equipment on the Customer Premises.
o Power: Customer will be required to provide adequate power for
MFN's equipment on the Customer Premises. MFN will install two
power supplies for redundant load sharing power.
o Mounting: The terminating device is designed to fit on standard
mounting racks - either telco style or 19 in equipment racks. To
be installed in properly ventilated areas by maintaining a
minimum clearance of 6 inches in front and rear of the unit.
Allow for 24 inches of clearance in front of the unit for the
installation, maintenance and replacement of modules.
o Environmental: Temperature: Operating: 32 to 104DEG. F (0
to 40DEG. C) continuous, 23 to 131DEG. F (-5 to 55DEG. C) for
96 hrs., NEBS level 3 compliant. Humidity: Operating,
non-condensing: 10 to 90%
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INSTALLATION. MFN and/or its agents will install MFN's equipment required to
deliver the Service, subject to a Service Activation Charge as
specified in the Service Order.
MONITORING. MFN will monitor all fiber and MFN equipment comprising the Service,
24 hours a day, 365 days a year, for the duration of the Term.
UPGRADES. Subject to remaining capacity, Customer may request changes and
upgrades to the Service. All changes and upgrades will automatically be
made part of the then - current pricing.
o Change of Redundancy Protection Option. Customer may change
redundancy protection option from Layer 1 Protection to Layer 3
Protection or visa versa. Installation and Monthly Service
Charges will apply.
o Addition of a Gigabit Ethernet wavelength channel to an existing
network Installation and Monthly Service Charges apply.
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SLA for ISX Services
(without Managed Services)
This Service Level Agreement ("SLA") is provided to Customer in connection with
ISX Services. MFN will use commercially reasonable efforts to minimize Excess
Packet Loss and Latency and to avoid Downtime, as more fully set out below.
Packet Loss and Latency. MFN does not proactively monitor the packet loss or
transmission latency of specific customers. MFN does, however, proactively
monitor the aggregate packet loss and transmission latency within its LAN and
WAN. After discovering or being notified by Customer of packet loss in excess of
one percent (1%) ("Excess PacketLoss") or transmission latency ("Latency") based
on MFN's measurements in excess of one of the following:
120 milliseconds round-trip time between any two routers within the continental
United States portion of the AboveNet Network, 80 milliseconds round trip
between any two routers on the European portion of the AboveNet Network, 180
milliseconds round trip between any two routers within either the New York to
London or Washington to London portion of the AboveNet Network, or 150
milliseconds round trip between any two routers within either the Seattle to
Tokyo or San Jose to Tokyo portion of the AboveNet Network, MFN will use
commercially reasonable efforts to determine the source of such Excess Packet
Loss or Latency and to correct such problem to the extent that the source of the
problem is on the AboveNet Network.
REMEDY FOR FAILURE. If two (2) hours after being notified of any Excess Packet
Loss or Latency on the AboveNet Network, MFN fails to remedy such Excess Packet
Loss or Latency, MFN will credit Customer's account the pro-rata bandwidth fees
for such continuous Excess Packet Loss or Latency that follows the initial two
(2) continuous hours, provided that all such credits will not exceed an
aggregate maximum credit of bandwidth fees otherwise due from Customer for one
(1) calendar month for failures in any one (1) calendar month.
INABILITY TO ACCESS THE INTERNET (DOWNTIME). MFN guarantees 100% connectivity
from the AboveNet Network to the Internet without Downtime. "Downtime" shall be
defined as Customer experiencing sustained packet loss in excess of fitly
percent (50%) based on MFN's measurements. If Customer experiences Downtime,
then MFN will credit a Customer's account the pro-rata bandwidth fees for such
Downtime, provided that all such credits will not exceed an aggregate maximum
credit of bandwidth fees otherwise due from Customer for one (1) calendar month
for failures in any one (1) calendar month.
POWER AVAILABILITY. If Customer has purchased AboveNet Co-location Space, MFN
guarantees 100% power availability to Customer's Co-location Space. In the event
of an unscheduled power outage, MFN will credit Customer's account the prorata
fees for Co - Location Space associated with the unscheduled power outage,
provided that all such credits will not exceed an aggregate maximum credit of
Co-Location Space fees otherwise due from Customer for one (1) calendar month
for failures in any one (1) calendar month.
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CUSTOMER REQUEST CREDIT. Customer must notify MFN within five (5) business days
from the time Customer becomes eligible to receive a credit under this Section 1
to receive such credit. Failure to comply with this requirement will forfeit
Customer's right to receive a credit.
LIMITATION ON REMEDIES. If Customer is entitled to multiple credits under this
Section 1, such credits shall not be cumulative beyond a total of credits for
one (i) calendar month in any one (1) calendar month in any event. MFN will not
apply a credit under Section 2 for any Excess Packet Loss or Latency for which
Customer received a credit under Section 3. Sections 2, 3 and 4 above state
Customer's sole and exclusive remedy for any failure by MFN to provide Services
or adequate Service levels, including but not limited to any outages or AboveNet
Network congestion. MFN's suspension or modification of Service in accordance
with the terms of this Agreement shall not be deemed to be a failure of MFN to
provide adequate Service levels under this Agreement. In no event shall Customer
be entitled to any credit on its Services Fees to the extent that the latency or
Downtime is caused by Customer attempting to exceed the maximum bandwidth of
Customer's connection to the AboveNet Network or otherwise violating the terms
of this Agreement.
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<Page>
SLA for Managed Services
MANAGED SERVICES STANDARDS. Under this Service Level Agreement (SLA), MFN will
be responsible for 100% uptime of Customer's site, as specified below.
BASIC 100% UPTIME STANDARD: MFN will guarantee uptime of Customer's site under a
Basic 100% Uptime Standard so long as Customer agrees to:
o undergo a SiteSmith SiteAudit of MFN-managed elements (to
determine or verify Customer's equipment, system architecture,
network architecture, and related configuration matters, and to
evaluate any site operation, security, or related issues) and
implement any changes identified from the SiteAudit that are
required for uptime performance; and o implement SiteSmith
Component SiteMonitoring to monitor the Customer site or managed
elements. In addition, all Customer-owned equipment being managed
by MFN must be covered under vendor maintenance agreements, which
will cover repair or replacement of such equipment.
ACCELERATED 100% UPTIME STANDARD: MFN will provide accelerated service credit
for any downtime, if Customer takes the following additional steps:
o implement the SiteSmith Operations Platform (use only devices
that are listed on the published platform scope):
o remove their users and external agents from accounts that grant
administrative or "root" access to devices within the equipment
being managed by MFN; and
o for systems requiring a "firewall," engage MFN to manage the
firewall solution in a "high availability' configuration.
CREDITS FOR DOWNTIME: Despite the efforts of MFN and Customer, functionality of
the Customer site may decrease from time to time, and may become partially or
completely unavailable. In such event, MFN will work to restore the Customer
site to its normal operating functionality as rapidly as possible. If
functionality of the Customer site is impaired to any degree that makes the
overall site materially unavailable, the duration of such unavailability shall
be considered "downtime." Customer will accrue one minute of credit for each
minute of downtime beyond any applicable resolution period (see below). If
downtime reoccurs within 60 minutes from the end of a previous outage from the
same cause, then MFN will apply "chronic outage" credits at a multiplier of 1.5
times.
CUSTOMER SERVICE PERFORMANCE STANDARDS: Through our Internet Customer Care
Center (ICCC), MFN provides phone support, email ticketing support, Remedy(TM)
ticketing support, "first level" system support, and general customer
assistance. Customer must designate a single point of contact for response. MFN
will respond to alerts as follows, and Customer will accrue
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<Page>
one hour of credit for each incident where MFN fails to respond to Customer
within the applicable standard.
<Table>
<S> <C> <C>
---------------------------------------------------------------------------------------------------------------------------
RESPONSE DESCRIPTION RESPONSE STANDARD
---------------------------------------------------------------------------------------------------------------------------
Phone Response ICCC personnel will respond to voice mail with a phone within 10 minutes of receipt
call to designated Customer point of contact
---------------------------------------------------------------------------------------------------------------------------
Email Response ICCC personnel will respond to email with an email to within 10 minutes of receipt
designated Customer point of contact
---------------------------------------------------------------------------------------------------------------------------
Ticket Response MFN will begin resolution of customer requested, within 12 hours of receipt
Non-emergency changes submitted through the ICCC
---------------------------------------------------------------------------------------------------------------------------
Engineering Response MFN personnel will begin work on system outages by the within 15 minutes of alert
SiteSmith SiteMonitoring agents, and other emergency
issues
---------------------------------------------------------------------------------------------------------------------------
</Table>
APPLICATION OF SERVICE CREDITS: Service credits will be issued on Customer's
next invoice (or by check if credit occurs in the final month of service).
Credits will be calculated according to the following schedule
<Table>
<S> <C> <C>
----------------------------------------------------------------------------------------------------------------------
CUMULATIVE DOWNTIME IN SERVICE LEVEL CREDIT UNDER
CALENDAR MONTH ----------------------------------------------------------------------------------
Accelerated 100% Uptime Standard Basic 100% Uptime Standard
----------------------------------------------------------------------------------------------------------------------
up to one hour 6 hours 1 hour for each hour of downtime
----------------------------------------------------------------------------------- (with fractions rounded up to
1-4 hours 1 day (24 hours) the next whole hour)
-----------------------------------------------------------------------------------
4-8 hours 3 days
-----------------------------------------------------------------------------------
8-24 hours 7 days
-----------------------------------------------------------------------------------
over 24 hours 7 days, plus 2 minutes credit per
minute beyond 30 hours, up to one month
total.
----------------------------------------------------------------------------------------------------------------------
</Table>
Service credit accrual is reset to zero at the beginning of each calendar month.
MFN will automatically provide credit for downtime based on its own records and
data. If Customer believes it is entitled to additional credits, Customer must
notify MFN's Accounting Department within two weeks from the date of the
invoice. Service credits may not be applied to charges for services other than
the monthly site operations fee, and are Customer's sole remedy regarding the
Uptime Standards and Customer Service Performance Standards.
RESOLUTION ALLOWANCES: The following table lists the time periods allowed for
resolution of specific problems:
<Table>
<S> <C>
----------------------------------------------------------------------------------------------------------------------
SERVICE RESOLUTION TIME
----------------------------------------------------------------------------------------------------------------------
SiteMonitoring or SiteSecurity 30 minutes
----------------------------------------------------------------------------------------------------------------------
Power or Bandwidth 3 hours (0 minutes if located at an AboveNet ISX)
----------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------
Base Server 60 minutes
----------------------------------------------------------------------------------------------------------------------
Database Device 1 hour plus 20 minutes per gigabyte of backup files to restore and
recover
----------------------------------------------------------------------------------------------------------------------
Complex Network Device 2 hours
----------------------------------------------------------------------------------------------------------------------
</Table>
EXEMPTIONS: The following items are exempted from this SLA:
o Scheduled maintenance (maintenance windows are each Tuesday and
Thursday and every second Saturday of the month, between 4am and
7am local time, or as otherwise arranged with Customer) and
emergency maintenance (such as emergency patches from an
equipment vendor).
o Networks, hardware, or software not under the direct control of
MFN or Customer.
o Modifications to hardware or site configuration, facility
changes, or migrations not authorized by MFN.
o Unavailability of Customer site due to Customer application
programming, Customer modifications to OS, Customer content,
development, staging, and/or testing period(s) or acts or
omissions of Customer.
o Attacks (i.e. hacks, denial of service attacks, malicious
introduction of viruses and disabling devices) by third parties,
and other acts not caused by MFN.
o Outages due to Customer's failure to provide spare equipment (per
the SiteAudit or other agreement).
o Events of "force majeure," including acts of war, acts of God,
earthquake, flood, embargo, riot, sabotage, labor dispute,
governmental act or failure of the Internet (not resulting
from acts of MFN).
BANDWIDTH CREDIT FOR EXCESS PACKET LOSS OR LATENCY ON ABOVENET NETWORK. If
Customer is connected to the AboveNet Network and experiences either (1) packet
loss in excess of one percent (1%) ("Excess Packet Loss") or (2) transmission
latency on the AboveNet Network, based on MFN's measurements, in excess of one
of the following: 120 ms round-trip between any two routers within the
continental U.S., 80 ms round trip between any two routers within Europe, 180 ms
round trip between London and either New York or Washington, or 150 milliseconds
round trip between Tokyo and either San Jose or Seattle ("Latency"), Customer
shall notify MFN of the problem, and if MFN fails to resolve the problem within
two (2) hours after being notified, MSN will credit Customer's account the
pro-rata bandwidth fees for any Excess Packet Loss or Latency that follows the
initial two (2) continuous hours, provided that all such credits will not exceed
an aggregate of the bandwidth fees otherwise due for one (1) calendar month for
failures in any one (1) calendar month. Note that if the Packet Loss or Latency
results in downtime of Customer's site, Customer may claim a service credit
under Section 1. If credit for bandwidth is included in the service credit,
Customer may not claim a separate credit under this section.
BACKUP CREDIT FOR FAILURE TO MEET BACKUP STANDARDS. If Customer has purchased
SiteBackUp and experiences either excessive delays (as specified later in this
sentence) in the commencement of a restore, or an unsuccessful restore, then MFN
will credit Customer 10% of the monthly SiteBackUp fee for each hour beyond 3
hours (beyond 7 hours in the case of off-site media) from the time the restore
is requested to the ICCC until commencement of the restore, up to 50% of the
total fee for any calendar month.
18