iMap Agreement - USinternetworking Inc. and Take to Auction.com Inc.
Version Date: September 16, 1999
USi Agreement Number: 113
iMAP AGREEMENT
USinternetworking, Inc. ("USi"), a Delaware corporation with its principal
office located at One USi Plaza, Annapolis, MD 21401-7428 and taketoAuction
("Client"), a Florida corporation, with its principal office located at 2335
N.W. 107th Avenue, Miami, FL 33172, hereby agree that the following terms and
conditions will apply to each iMAP Solution provided under this iMAP Agreement
("Agreement").
1. SCOPE OF SERVICE
1.1 Services
USi will provide the services as defined in individual Product
Schedules which will be mutually agreed upon, attached hereto and
incorporated herein as Exhibit A. The Product Schedules may be modified
by mutual written agreement. Changes or additions to work performed
under each Product Schedule may require changes in the resources
provided by USi and may result in additional costs or charges in each
Product Schedule.
1.2 Separate Agreement
Each Product Schedule shall reflect a separate agreement of the
parties, and, unless otherwise clearly specified in writing, the terms
and conditions of each Product Schedule shall be independent of and
shall have no impact upon, the provisions of any other Product
Schedule.
1.3 Additional Services
Client may order additional iMAP Solutions or add on to existing iMAP
Solutions by contacting USi. USi will send Client a Product Schedule,
based on USi's formal requirements analysis and/or proposal for the
additional services, specifying the terms of the iMAP Solution,
including the payment(s) due for each ordered item. Client may accept
the terms of the iMAP Solution by signing that Product Schedule and
returning it to USi. All executed Product Schedules will become part of
this Agreement and will be covered by all of this Agreement's terms and
conditions.
2. DEFINITIONS
2.1 "Acceptable Use Policy" shall mean USi's policy on the use of its
Global Network. The Acceptable Use Policy can be viewed at
http://www.usi.net/usepolicy.html.
2.2 "Addenda" shall mean any written document executed by both parties
which modifies the terms of this Agreement or any executed Product
Schedule.
2.3 "Agreement" shall mean this iMAP Agreement, any and all Exhibits
attached hereto and all Product Schedules attached simultaneously with
the execution of the Agreement or agreed upon and executed subsequent
hereto.
2.4 "Consulting and Implementation Services" shall mean the services
provided by USi as part of the iMAP Solution and may be set forth in
the Product Schedule as applicable.
2.5 "Content" means any and all text, multimedia or images (graphics, audio
and video), data and the like provided by Client and installed on a
server, which shall be subject to the terms and conditions set forth in
the Product Schedule and Acceptable Use Policy.
2.6 "Customization" shall mean any customized deliverable created by USi as
part of the iMAP Solution.
2.7 "Documentation" shall mean the Software Application user manual(s) and
any other materials supplied by USi concurrently with the delivery of
and for use with the iMAP Solution.
2.8 "Global Network" shall mean USi's Internet-based data center and
network.
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2.9 "Hardware" shall mean any computing or networking equipment USi uses
and/or provides to Client for its use as part of the iMAP Solution.
2.10 "iMAP Solution" shall mean the collective bundling of any and all
Consulting and Implementation Services, Customization, access to the
Global Network, Hardware, Project Software, Software Application(s),
USi Software and Work Product, as outlined in each executed Product
Schedule.
2.11 "Product Schedule" shall mean a written order for any iMAP Solution
accepted by USi and executed by both parties, which shall be subject to
the terms and conditions of this Agreement and which, at a minimum,
shall contain a description of the work to be undertaken and the
obligations and responsibilities of each party related to that Product
Schedule.
2.12 "Project Software" shall mean any software developed by USi under this
Agreement or any Product Schedule.
2.13 "SLA" shall mean the Service Level Agreement specified in each Product
Schedule.
2.14 "Software Application" shall mean the Third Party computer software USi
provides to Client for its use as part of the iMAP Solution.
2.15 "Third Party" shall mean any natural person or legal entity other than
USi and Client.
2.16 "USi Software" shall mean certain software which was developed by USi
independently of this Agreement or pursuant to the terms of this
Agreement as may be required for customization.
2.17 "Work Product" shall mean all Consulting and Implementation Services
performed and/or created by USi solely for Client under this Agreement
as well as any other products of its work created hereunder solely for
Client which may consist of reports, designs, data or similar
materials.
3. LICENSE
3.1 Rights Granted
In accordance with the terms of this Agreement, USi grants to Client a
limited, nontransferable, non-exclusive license to use the iMAP
Solution included in the executed Product Schedules attached hereto for
the sole purpose of supporting the operations of Client's business as
described in the Product Schedule. Notwithstanding anything to the
contrary, Client may not use the iMAP Solution in a resale capacity, to
process and/or analyze the data of a Third Party as a service bureau or
on any Hardware other than as set forth in the relevant Product
Schedule.
3.2 Ownership
Except as expressly provided in Section 11 below, all components except
as outlined in product schedule in "Additional Ownership Rights" of the
iMAP Solution provided to Client shall remain at all times the property
of USi and/or its Third Party Software Application vendors and contain
trade secrets and other valuable proprietary information of USi and/or
its Third Party vendor.
3.3 Effective Date
This Agreement shall be effective on the date it is executed by USi,
and shall remain in effect for the Term unless terminated in accordance
with the provisions set forth in this Agreement.
3.4 Software
Client acknowledges and understands that USi may provide to Client (a)
USi Software and/or (b) Software Applications owned by Third Parties
which USi uses under license agreements from Third Parties defined in
Section 2.14 as "Software Application." Client acknowledges that (a)
title to all such USi Software and Software Application remains with
and is subject to the proprietary rights of USi or its Third Party
vendor, and (b) such USi Software and Software Application contain
trade secrets and other valuable proprietary information of USi or its
Third Party vendor.
3.5 Restrictions
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Client agrees it shall not: (a) alter or modify the USi or Software
Application or any part thereof; (b) copy or duplicate, or permit a
Third Party to copy or duplicate, the USi Software or Software
Application or any part thereof or (c) reverse engineer, decompile or
disassemble USi Software or Software Application, unless otherwise
provided in the relevant Product Schedule.
3.6 Non-Transferable
Client agrees not to license, sell, transfer, lease or disclose the USi
Software or Software Application to any Third Party.
4. TERM
4.1 Agreement Term
The term of this Agreement (the "Term") shall commence on the Effective
Date and shall expire five (5) years thereafter unless (a) either
terminated pursuant to the terms of this Agreement or (b) extended by
mutual written agreement.
4.2 Product Schedule
Each individual Product Schedule shall include a period of performance.
In the event that any Product Schedule period of performance extends
beyond the Term, the Term shall automatically be extended and remain in
effect until such time as the Product Schedule period of performance is
completed.
5. PAYMENTS
5.1 Fees
As compensation for the license of the iMAP Solution granted to Client
and the provisions of services as applicable, Client agrees to pay the
amount(s) specified in each executed Product Schedule. Any fee
specified in a Product Schedule will only remain in effect until the
date specified in the Product Schedule.
5.2 Payment Terms
Unless otherwise specified in the Product Schedule, payments will be
due and payable to USi within thirty (30) days of Client's receipt of
USi's invoice. Such invoices will be generated in accordance with the
terms specified in each Product Schedule. USi reserves the right, in
USi's absolute discretion, to perform a credit check on Client.
5.3 Taxes
Client shall be responsible for the payment of all taxes associated
with this Agreement or its use of the iMAP Solution (other than taxes
based on USi's net income), including, but not limited to, personal
property taxes, import taxes, taxes on telecommunication services,
information services, data processing services or similar governmental
charges that may be assessed by any jurisdiction, whether based on
gross revenue or delivery of products or services. If USi is required
to pay any such taxes directly, Client shall, upon receipt of USi's
invoice, reimburse USi for any amount that USi has paid.
Notwithstanding the above, Client shall not be required to pay those
taxes from which Client is legally exempt.
5.4 Insurance
Client shall obtain and maintain adequate liability insurance and
insurance against loss or damage to USi's Hardware located on Client's
premises. Upon request, Client shall furnish to USi a Certificate of
Insurance or other evidence of insurance coverage.
5.5 Interest
Any payments not made when due will be subject to an interest charge of
one and one-half percent (1.5%) per month, unless applicable law
specifies a lower lawful rate of interest, in which case past due
payments shall bear interest at that lower maximum rate.
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6. WARRANTIES
6.1 Performance Warranty
USi warrants that: (a) work performed to complete any Product Schedule
will be performed by qualified personnel in a professional, workmanlike
manner, consistent with the prevailing standards of the industry; and
(b) it will use commercially reasonable efforts to complete each
Product Schedule.
6.2 Authority Warranty
USi warrants that it has the authority to license the Software
Application(s) for the purposes set forth in this Agreement and the
Product Schedule. Client acknowledges and agrees that its sole and
exclusive remedies for breach of this warranty are set forth in Section
8.1 of this Agreement.
6.3 Limitation
Unless otherwise expressly provided herein or in a Product Schedule,
neither USi nor any of its service providers, licensors, employees or
agents warrant (a) that the functions contained in the iMAP Solution
provided hereunder will meet Client's requirements or (b) that the
operation of the iMAP Solution will be uninterrupted or error free or
(c) that the products or services will have the capacity to meet the
demand during specific hours. USi will not be liable for any damages
that Client may suffer arising out of use, or inability to use, the
products or services provided hereunder. USi will not be liable for
unauthorized access to or alteration, theft or destruction of Client's
data files, programs, procedures or information through accident,
fraudulent means or devices, or any other method, unless such access,
alteration, theft or destruction is caused as a result of USi's gross
negligence or intentional misconduct.
6.4 Exclusion
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES
AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.
7. CLIENT CARE
7.1 Client Assistance Center
Under the Client Care program, USi will provide a level of service
concerning Client's iMAP Solution as outlined in each specific Product
Schedule. In all cases, Client will have availability to USi's Client
Assistance Center twenty-four (24) hours per day, seven (7) days per
week, three hundred sixty-five (365) days per year. Client acknowledges
and agrees that all calls into the Client Assistance Center are public
and may be monitored and/or recorded for quality control purposes.
7.2 Service Level Agreements
USi will provide a Service Level Agreement with each iMAP Solution
which will be stated in each executed Product Schedule. Specific
remedies for USi's failure to meet the applicable Service Level
Agreement will be stated in each executed Product Schedule.
7.3 Maintenance Window
USi has established set maintenance windows on Tuesday and Friday
mornings between the hours of 2am and 6am (ET). During this time, USi
reserves the right to take down a Client's server(s) in order to
conduct routine maintenance checks to both software and hardware. If a
Client's server(s) will be down for more than two (2) minutes within
this pre-established window, USi will advise Client of such prior to
any scheduled maintenance downtime. USi will not be responsible for any
damages or costs incurred by Client, if any, for scheduled down time.
USi reserves the right to change its maintenance window upon prior
notice to Client.
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8. INDEMNITY OBLIGATIONS
8.1 USi Indemnity Obligations
USi will (a) defend Client against any final claim that the products or
services delivered by USi infringe a patent, copyright, trade secret,
or other proprietary right in the United States; and (b) pay costs,
damages and attorney's fees finally awarded against Client as a result
of such claims.
(a) Infringement Remedies. In addition to defending Client as
stated above, if a claim occurs, or in USi's opinion, is
likely to occur, USi will, at its sole option and expense,
(subject to its agreement with Software Application vendors)
either (i) procure Client the right to continue using the
Software Application in question, or (ii) replace or modify
the infringing Software Application so that it becomes
noninfringing; provided that the Software Application's
functionality are not materially and adversely affected by
such replacement or modification. If neither of these
alternatives is reasonably available, Client shall return the
Software Application at issue and USi will refund the amount
paid by Client to USi for such Software Application as
depreciated. The depreciation shall be an equal amount per
year over a three (3) year life commencing with the date of
installation.
(b) Exclusions. USi shall not be liable for infringement claims
based on (i) the combination, operation or use of Software
Application with hardware, data or software not supplied by
USi if the claim would have been avoided by use of other
hardware, data or software; or (ii) modifications to Software
Application if the modifications were not made by USi.
8.2 Client Indemnity Obligations
Client will (a) defend USi against any claims by Third Parties arising
from Client's use of Software Application or iMAP Solution provided by
USi hereunder excluding, however, (i) proprietary rights infringement
claims under Section 8.1; and (ii) claims for bodily injury or damages
to tangible personal property proximately caused by the negligent act,
error or omission of USi and (b) pay costs, damages and attorney's fees
finally awarded against USi and any settlement costs incurred as a
result of such claims.
8.3 Conditions
The indemnification obligations set forth above in Sections 8.1 and 8.2
are contingent upon compliance with the following conditions by the
party seeking indemnification:
(a) Providing prompt written notice of a claim within twenty (20)
days of its service upon indemnified party;
(b) Providing all information and evidence within its control
which is necessary for the indemnifying party to conduct a
defense; and
(c) Providing the indemnifying party with sole control of the
defense and all related settlement negotiations. However, the
non-indemnifying party may participate in the defense or
settlement of the claim at its own expense.
8.4 Limitations of Remedy
This Section 8 states the entire obligations of the parties with
respect to indemnity or infringement of copyrights, patents, trade
secrets or other intellectual property or proprietary rights.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability
USi's entire liability and Client's exclusive remedies are set forth in
this Section 9, Section 6 WARRANTIES, Section 8 INDEMNITY OBLIGATIONS
and Section 10 TERMINATION. USi's liability to Client for damages
(regardless of the form of action, whether in contract, tort, warranty
or otherwise) shall in no event exceed three (3) times the monthly fee
paid by the Client to USi under this
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Agreement for the one (1) month period immediately preceding the event
which caused the damage or injury.
9.2 Disclaimer of Damages
EXCEPT IN THE CASE OF CLIENT'S BREACH OF USi'S INTELLECTUAL PROPERTY
RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE,
OR DATA, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH POTENTIAL LOSS OR DAMAGES. CLIENT FURTHER AGREES THAT USi SHALL
NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT OR USi BY ANY
THIRD PARTY, EXCEPT TO THE EXTENT EXPRESSLY COVERED UNDER SECTION 8
INDEMNITY OBLIGATIONS OR SECTION 9 LIMITATION OF LIABILITY.
10. TERMINATION
10.1 Termination for Breach
Either party may terminate this Agreement immediately upon written
notice to the other party if the other party materially breaches any
obligation under this Agreement and fails to cure such breach within
thirty (30) days after receiving notice of the breach. Unless otherwise
agreed in writing, termination of this Agreement shall also
automatically terminate all Product Schedules which are incomplete at
the time of termination. Termination of one Product Schedule shall have
no effect on any other Product Schedule or the Agreement so long as the
party in default of the Product Schedule being terminated complies with
the terms and conditions of the Agreement and other Product Schedules.
Notwithstanding anything to the contrary, either party shall have the
right to terminate this Agreement and the license granted herein in the
event the other party (a) terminates or suspends its business, (b)
becomes subject to any bankruptcy or insolvency proceeding under
Federal or state statute, (c) becomes insolvent or becomes subject to
direct control by a trustee, receiver or similar authority, or (d) has
wound up liquidated, voluntarily or otherwise. In the event of
termination by reason of Client's failure to comply with any part of
this Agreement, or upon any act which shall give rise to USi's right to
terminate, USi shall have the right, at any time, to terminate the
license and take immediate possession of the iMAP Solutions and all
copies wherever located, without demand or notice. Within ten (10) days
after termination of the license, Client shall return to USi all
tangible portions of the iMAP Solutions, including any Hardware
provided by USi and any Software in the form provided by USi or as
modified, or, upon request by USi, destroy all tangible portions of the
iMAP Solutions and all copies, and certify in writing that they have
been destroyed. Termination of this Agreement shall not relieve Client
of its obligations regarding confidentiality under Section 12 below.
Lastly, no cure period shall be afforded in an event of a breach of
Sections 3 or 12.1, for which USi shall be entitled to all legal and
equitable remedies, including but not limited to, injunctive relief,
without requirement of bond.
10.2 Effect of Termination
Termination of this Agreement for any reason shall not affect any past
or future sums due USi under this Agreement or any additional remedies
provided by law or equity to USi. All rights that have been granted to
Client shall immediately be terminated and all unpaid charges accrued
under this Agreement shall become immediately due and payable upon the
happening of any event of termination. The Parties also agree to return
to one another, within sixty (60) days of a request, any property, data
sheets, schematics, samples, customer lists, confidential information,
in whatever form or media which are used by a disclosing party or which
are furnished to a recipient.
10.3 Return of Content
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In the event of a termination of this Agreement or any Product Schedule
for default by USi, or on account of Client's decision not to renew a
Product Schedule at the end of the applicable period of performance
defined in each Product Schedule, USi shall deliver to Client, at no
additional cost to Client, and in a format and on a date mutually
agreeable to both parties, (i) all data contained on Hardware (Section
2.9) used in the iMAP Solution delivered to Client; (ii) all Content
(Section 2.5), (iii) all Project Software (Section 2.12); and (iv) all
Work Product (Section 2.17). Client agrees that, after termination of
this Agreement or a specific Product Schedule, (a) USi shall have no
obligation to support the Work Product or Project Software; (b) Client
may use the Work Product and Project Software solely to support the
internal operations of its business; (c) Client may not resell,
disclose, or allow access to, the Work Product or Project Software to
any Third Party; and (d) USi reserves all rights to (i) the use of the
Work Product or Project Software in whatever manner USi chooses,
including in the support of iMAP Solutions provided to other USi
clients; and (ii) the IP addresses or address blocks assigned by USi in
support of the iMAP Solution delivered to Client under this Agreement
and related Product Schedule(s).
11. SOFTWARE AND WORK PRODUCT DEVELOLPED UNDER AGREEMENT
11.1 Title
Except as otherwise provided for in Section 11.2 below or as may be
expressly agreed in any Product Schedule, USi shall retain title to and
ownership of any (a) Hardware provided by USi; (b) any Software
Application(s); and (c) any USi Software. To the extent that Project
Software contains any USi Software or Software Application(s), such
Project Software is subject to restrictions as may be applicable to the
USi Software or Software Application(s) which is incorporated therein.
11.2 Client Ownership
Client shall retain title to and all ownership rights (a) in any Work
Product; (b) in any Project Software; and (c) in Content, but grants
USi a perpetual, royalty-free license to use the Work Product and
Project Software pursuant to Section 10.3(d), and all items outlined in
product schedule in "Additional Ownership Rights.".
12. GENERAL PROVISIONS
12.1 Nondisclosure
Each party shall retain in confidence all proprietary information
transmitted to the other that the disclosing party has identified in
writing as being proprietary and/or confidential, and will make no use
of such information except under the terms and during the term of this
Agreement. Client agrees to use all reasonable precautions and take all
necessary steps to prevent the iMAP Solution from being acquired by
unauthorized persons, and to take appropriate action, by instruction,
agreement, or other-wise, with regard to all persons permitted access
to the iMAP Solution, in order to ensure the iMAP Solution is
protected. Client shall not disclose the iMAP Solution to any person
for any purpose other than as provided in this Agreement. However,
neither party shall have an obligation to maintain the confidentiality
of information that (a) it has rightfully received from another party
prior to its receipt from the disclosing party; (b) the disclosing
party has disclosed to a Third Party without any obligation to maintain
such information in confidence, (c) enters the public domain or becomes
generally known to the public by some action other than breach of this
Agreement by the receiving party; or (d) is independently developed by
the receiving party. Each party shall safeguard proprietary and
confidential information disclosed by the other using the same degree
of care it uses to safeguard its own proprietary and confidential
information but, in no event, shall use less than a reasonable degree
of care. Each
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party's obligation under this paragraph shall extend for a period of
three (3) years following termination or expiration of this Agreement.
12.2 Assignment
Neither this Agreement nor any rights granted hereunder may be sold,
leased, assigned or otherwise transferred, in whole or in part by
Client by operation of law otherwise, and any such attempted assignment
shall be void and of no effect without the advance written consent of
USi, such consent not to be unreasonably withheld or delayed; provided,
however, that such consent shall not be required if Client assigns this
Agreement to a wholly owned subsidiary or in connection with a merger,
acquisition, or sale of all or substantially all of its assets, unless
the surviving entity is a competitor of USi. USi reserves the right to
assign its right to receive and collect payments hereunder without the
consent of Client.
12.3 Governing Law
This Agreement shall be governed by and con-strued in accordance with
the laws of the State of Maryland, without regard to conflicts of law.
The parties to this Agreement consent to the exclusive jurisdiction and
venue of the state and federal courts sitting in or for Anne Arundel
County, Maryland.
12.4 Waiver
No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any other breach of the same or any other
provision of the Agreement, and no waiver shall be effective unless
made in writing.
12.5 Severability
In the event that any term or provision of this Agreement conflicts
with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the
parties to this Agreement, such provision shall be restated to reflect,
as nearly as possible, the original intentions of the parties in
accordance with applicable law, and the remainder of this Agreement
shall remain in full force and effect.
12.6 Enforcement
Both parties agree to pay all reasonable costs and expenses the other
party incurs in successfully enforc-ing this Agreement, including
reasonable attorneys' fees.
12.7 Force Majeure
Neither party shall be liable for any delay or failure in performance
due to Force Majeure, which shall mean acts of God, earthquake, labor
disputes, changes in law, regulation or government policy, riots, war,
fire, epidemics, acts or omissions of vendors or suppliers,
transportation difficulties or other occurrences which are beyond
either party's reasonable control. In the event that USi is prevented
or delayed in the delivery or installation of the iMAP Solution for
reasons beyond its control, such delivery or installation shall take
place as soon thereafter as is reasonably possible. This provision
shall not apply to any obligation of Client to pay money under this
Agreement or any Product Schedule.
12.8 Notice
Any notice or invoice required or permitted under this Agreement shall
be in writing and delivered by hand or mailed by overnight express
charges prepaid or certi-fied mail with return receipt requested to the
address set forth above. Notices or invoices shall be deemed received
when delivered.
12.9 Hiring
Client and USi agree that during the term of this Agreement and for one
(1) year thereafter, they will not, without prior written consent of
the other, employ or offer employment to any employee of the other who
has worked to a material extent on matters relating to this Agreement
or the provision of USi services by USi hereunder.
12.10 Survival
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The terms of Sections 3, 4, 5, 8, 9, 11 and 12 shall survive the
termination or expiration of this Agreement.
12.11 Acceptable Use Policy
Client agrees at all times, and to require and enforce its employees,
agents and contractors at all times, to comply with the USi Acceptable
Use Policy, the terms of which may be modified from time to time by USi
on the website referred to above in Section 2.1. Client agrees to
indemnify and hold USi harmless from any damages, costs and expenses
incurred by USi caused by the breach of this provision.
12.12 Third Party Rights
The provisions of this Agreement are solely for the benefit of the
parties hereto and not for the benefit of any Third Parties.
12.13 Entire Agreement
This Agreement (including all Product Schedules and Addenda, if any)
contains the full under-standing between the parties and supercedes all
prior representations or agreements, whether oral or written, with
respect to such matters. The Agreement (including all Product Schedules
and Addenda, if any) may only be changed by a written document signed
by both parties. To the extent of any inconsistencies between the
Agreement and the Product Schedule, the Product Schedule shall control,
except if the Agreement is modified by Addenda, then the Addenda shall
control. Principles of contract construction or rules of law that, in
the event of inconsistency or ambiguity, would construe against the
drafter this Agreement or any Product Schedule, shall not apply.
USinternetworking, Inc. taketoAuction
By: /s/ William T. Price By: /s/ Albert Friedman
--------------------------------------- -------------------------
Name: William T. Price Name: Albert Friedman
Title: Vice President and General Counsel Title: President and CEO
Date: 9/23/99 Date: 9/17/99
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USi Agreement Number: 113
Effective Date: September 17. 1999
PRODUCT SCHEDULE
This Product Schedule is governed by and incorporated into the terms and
conditions contained in the IMAP Agreement entered into between
USinternetworking, Inc. ("USi") and taketoAuction ("Client") dated September 17,
1999. USi's Proposal to Client dated September 13, 1999 (the "Proposal") is
attached as Exhibit A to this Product Schedule, although only those Sections of
the Proposal specifically referenced below shall be incorporated into the terms
and conditions of this Product Schedule.
iMAP SOLUTION: USi Internet Selling application powered by
BroadVision as detailed in Section 1 of the
Proposal.
HOSTING OF EXISTING WEB SITE: USi agrees to host Client's current web
site for up to four (4) months at no
additional charge, which includes the
migration of Client's servers and network
capacity to USi's Enterprise Data Center.
USi shall have no responsibility for
Client's applications and will not provide
any type of Service Level Agreement. In
addition, USi shall provide, at no charge,
up to thirty (30) hours of professional
services assistance to maintain or
enhance Client's existing web site.
Additional hours of professional services
will be billable at an hourly rate of $160
plus reasonable travel and living expenses.
USi reserves the right, in its sole
discretion, to withdraw the hosting of
Client's existing web site should USi
determine that such temporary hosting
environment is not feasible or will have a
negative impact on the implementation of the
iMAP Solution.
PAYMENT SCHEDULE: Client agrees to the following Payment
Schedule:
1. $40,000 due and payable on the
Effective Date of this
Product Schedule.
2. Sixty (60) equal monthly service fee
payments of $41,000 commencing
December 15, 1999.
All monthly service fee invoices will be
issued in advance on the 15th of the month
prior to the calendar month of service. This
pricing is valid for the Initial Period and
is exclusive of any applicable taxes,
tariffs, telecommunications surcharges or
other governmental fees or charges that may
be imposed from time to time by applicable
law or regulation.
DELIVER OF LIMITED VERSION: As noted in Section 1.8 of the Proposal, USi
will deliver the limited version of the iMAP
Solution by January 31, 2000. Should USi
fail to deliver this limited version as such,
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Version Date: September 17, 1999
all monthly service fee payments shall be
suspended until USi delivers this limited
version.
EFFECTIVE DATE OF PRODUCT
SCHEDULE: Upon execution of this Product Schedule by
both parties or another date, mutually agreed
upon in writing by the parties as set forth
above.
PERIOD OF PERFORMANCE: The Period of Performance of this Product
Schedule shall commence on the Effective
Date and shall continue until
December 14, 2004 (the "Initial Period").
Thereafter, this Product Schedule shall
automatically renew for successive twelve
(12) month periods (the "Renewal Period")
on the same terms and conditions as herein
agreed, as may be amended from time to time,
including, but not limited to, monthly
payments as described below, unless and
until either party provides the other
party with a notice of termination thirty
(30) days prior to the end of the Initial
Period or any annual Renewal Period.
PRICE CHANGES: USi will notify Client sixty (60) days prior
to any Renewal Period of any price changes
which will become effective upon such
Renewal Period.
BANDWIDTH VARIATION POLICY: Should Client exceed bandwidth or server
processing requirements of this project, USi
reserves the right to amend this Product
Schedule and increase the monthly fees to
reflect the additional bandwidth
requirements. USi will provide Client with a
monthly status report o bandwidth and server
usage.
CLIENT CARE: Under the Client Care program, Client's Help
Desk will have availability to (a) USi's
Client Assistance Center twenty-four (24)
hours per day, seven (7) days per week, three
hundred sixty-five (365)days per year and (b)
the assigned Client Assistance Team during
Client's designated standard business hours.
CONSULTING SERVICES: USi will provide Consulting Services as
outlined in Section 1 of the Proposal.
ADDITIONAL CONSULTING SERVICES: During the Initial Period, USi agrees to
provide Client up to six hundred (600) hours
of Additional Consulting Services
("Additional Services") per year in support
of the periodic enhancement of the IMAP
Solution. All fees for the Additional
Services are included in the Payment
Schedule. The scope and time frames for
delivery of the Additional Services will be
mutually agreed upon between both parties. In
addition, the Additional Services will be
provided on mutually agreeable dates
scheduled at least two (2) weeks in advance.
It is understood that any additional software
or hardware requirements may change monthly
payment installment payment plan stated
above.
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SECURITY PROCEDURES: USi defines certain policies and
procedures to provide the level of security
associated with the iMAP Solution. Client
acknowledges and understands that no network
security procedures can assure complete
network security or prevent all unauthorized
access to the network. These policies and
procedures will change over time to
reflect emerging technologies, business
practices and Internet-related issues.
SERVICE LEVEL AGREEMENT:
Usi's Service Level:
USi will provide for 99.5% Availability for the iMAP Solution application
services (as herein defined) within USi's assumed control.
"Availability" refers to a User's ability to access the application on the
appropriate USi hosted server and receive a valid response, where a "valid
response" is any reply sent by the appropriate server that is either normal
application behavior or an exception notification that can be identified and
read by the user.
"Assumed control" includes all of the following components except for those
specifically excluded in the Remedy section below:
o network services to the ISP (Internet Service Provider) circuit termination
termination point on the router in USi's data center (i.e. Public Internet
Connectivity)
o network services to the Private IP Carrier circuit termination point on
the router in USi's data center (i.e. Private IP Network Connectivity)
o all USi provided hardware including servers, network equipment and security
components
o all USi provided software, including operating systems, web servers,
database servers, applications, utilities and customized components
o USi managed routers on customer premises
Remedy:
In the event USi is unable to provide:
1. Ninety-nine percent (99%) Availability in any given calendar month,
Client shall receive a credit to their account equal to five percent
(5%) of that month's service fees excluding rebilled circuit charges.
2. Ninety-five percent (95%) Availability in any given calendar month,
Client shall receive a credit to their account equal to ten percent
(10%) of that month's service fees excluding rebilled circuit charges.
3. Ninety percent (90%) Availability in any given calendar month, Client
shall receive a credit to their account equal to fifteen percent (15%)
of that month's service fees, excluding rebilled circuit charges.
If USi fails to meet ninety-five percent (95%) Availability for three (3)
consecutive calendar months, Client may terminate this Product Schedule without
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penalty, regardless of any term remaining on the Agreement, without liability to
either party for penalties or damages associated with such termination and upon
thirty (30) days prior written notice to USi.
"Availability" percentage shall be calculated as follows:
x = (n - Number of Hours Service is "down") * 100
-------------------------------------------------
where "n" is the total number of hours in any given calendar month, and "x" is
the Availability percentage.
Specifically excluded from "n" in this calculation and exceptions to the levels
of Availability provided herein are (a) scheduled maintenance windows; (b)
reasons of Force Majeure (as defined in Section 12.8 of the Agreement); (c)
issues associated with Client provided hardware, software and other equipment;
(d) issues associated with Client provided or Client leased local area networks
or ISP connections; (e) use of unapproved or modified hardware or software
and/or; (t) issues arising from the misuse of the iMAP Solution by Client, its
employees, agents, customers or contractors.
In the event of a Force Majeure event, the Client shall have the option of
canceling this Product Schedule with USi if the resulting total outage time is
greater than fourteen (14) consecutive days in any six (6) month period, without
liability to either party for penalties or damages associated with such outages
or termination and upon thirty (30) days prior written notice to USi.
The remedies stated in this Section are Client's sole and exclusive remedies for
service interruption.
Client Responsibilities: This section describes Client's additional
responsibilities under this Agreement.
1. Client will designate qualified personnel to act as liaisons between Client
and USi.
2. Client will adhere to and will require any Third Party (as defined in
the iMAP Agreement) having access to the iMAP Solution to adhere to
USi's Acceptable Use Policy as set forth at the following URL:
http://www.usi.netIusepolicy.
3. Client is responsible for obtaining and complying with license terms for all
Client-provided software, if any, which are sufficient to allow use of the
software on the Hardware.
4. Client is solely responsible for Content, including any subsequent changes
or updates made or authorized by Client. Client represents and warrants
that Content: (a) will not infringe or violate the rights of any Third
Party including, but not limited to, intellectual property, privacy or
publicity rights of others; (b) is not abusive, profane or offensive to a
reasonable person; or (c) will not be hateful or threatening. Violations of
the foregoing by Client may result in early termination of services by USi.
5. Client is solely responsible for the Contents of its transmissions and
the transmissions of Third Parties accessing the iMAP Solution through
Client. Client agrees to comply with U.S. and International law with regard
to the transmission of technical data which is exported from the United
States through the iMAP Solution. Client further agrees not to use the iMAP
Solution a) for illegal purposes or (b) to interfere with or disrupt other
network users, network services or network equipment. Interference or
disruptions include, but are not limited to, distribution of unsolicited
advertising or chain letters, propagation of computer worms and viruses, and
use of the network to make unauthorized entry to any other machine
accessible via the network. Violations of the foregoing by Client may result
in early termination of services by USi.
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6. Client shall be responsible for providing USi with end user login names
and passwords for the purpose of authenticating and authorizing Global
Network access by end users to the iMAP Solution.
7. Client shall be responsible for handling all communication, technical
support to and business relations with end users who are the customers
of Client including but not limited to responding to inquiries and
questions.
8. Client shall be responsible for providing to USi all information
required for the Acceptance Test in a timely manner and in form
directed by USi. Client shall participate in the Acceptance Testing in
good faith and with all due diligence.
9. Client shall provide USi with access to such hardware, software and
network connections that reside on Client's premises as USi shall
require.
10. Client shall bear the entire risk of loss or damage to USi hardware
located at Client's premises. Client shall obtain and maintain adequate
liability insurance and insurance against loss or damage to the hardware.
Upon request, Client shall furnish to USi a Certificate of Insurance or
other evidence of insurance coverage. Client shall promptly notify USi of
any loss or damage to its hardware. In the event of loss or damage, Client,
at USi's sole option, shall either place the hardware in good condition and
repair or pay to USi the replacement value of the hardware. In the event
that any such loss or damage renders the hardware inoperable in any way so
as to cause a delay in the provision of the IMAP Solution to the Client,
Client shall indemnify and hold USi harmless under Section 8 of the
Agreement from any resulting claims Client or Third Parties may have.
Furthermore, Client shall not be entitled to any Service Level Agreement
credits for any loss of Availability due to the loss or damage to USi
hardware located at Client's premises.
11. Client shall be responsible to perform the obligations set forth in the
incorporated provisions of the Proposal.
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Version Date: September 17, 1999
ADDITIONAL OWNERSHIP RIGHTS: Notwithstanding anything to the contrary in the
Agreement, both parties acknowledge that Client's
logo's, trademarks, service marks, copyrights,
business modules and patents, whether pending
or registered, without limitation, including
Client's site design, architecture, layout and
contents are the sole property of Client.
OFFER EXPIRATION DATE: SEPTEMBER 30,1999
USINTERNETWORKING, INC. TAKETOAUCTION
/s/ William T. Price /s/ Albert Friedman
--------------------- -----------------------
(signature) (signature)
William T. Price Albert Friedman
---------------- ------------------
Vice President and General Counsel (printed name)
President and CEO
-----------------------------------
(title)
9/23/99 9/17/99
----------------------------- -------------------------------
(date) (date)
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