Internetworking Services Agreement - Genuity Solutions Inc. and Netpliance Inc.
GENUITY Quotation
DiaLinx Services (Version 3.0)
Oct. 1999 Rev. 7-28-00
Quotation for DiaLinx Service
TO: Netpliance, Inc Quote Date: 7-1-00
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7600A North Capital of Texas Highway Quote Valid To: 8-1-00
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Austin, TX 78731 Quote Number: netpliance70100
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Quotation for DiaLinx Service
This Quotation is for DiaLinx Services Version 3.0, and sets forth the pricing
and volume commitments agreed to under the DiaLinx Service Schedule.
PRIOR AGREEMENTS SUPERSEDED AND TERMINATED: This Quotation, together with the
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Service Schedule - DiaLinx Services and Master Agreement, represents the final
agreement of the parties with respect to the subject matter hereof. Upon
acceptance of this Quotation by Genuity, this Quotation will supersede and
terminate all prior quotations and agreements including those from GTECC and GTE
Internetworking Incorporated, provided, however, that any obligations which have
accrued under the preceding quotations prior to their termination (e.g. payments
due) shall survive such termination, other than any applicable termination fees.
1. Commencement Date: The Commencement Date is the day on which we notify you
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that we have completed our installation and configuration responsibilities
to allow your users to use the DiaLinx service, or the day on which you or
a user first uses any DiaLinx service, whichever is earlier.
2. Service Level Agreement. Genuity will provide Services hereunder pursuant
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to the terms of Service Level Agreement for DiaLinx Services (Corporate
SLA), a copy of which is attached hereto and forms part of the Agreement,
with the following modifications: We shall offer you the following Service
Level Agreement (SLA) coverage., based on Inverse testing of our network:
95% Busy Free Dial, 93% Call Success and 43K Initial Modem Connect. Inverse
reports these metrics monthly as an average of all test calls to the U.S.
DiaLinx Network. If we fail to meet any of these metrics over a period of
two (2) consecutive months, we will credit you the standard Credit outlined
therein for those two (2) months. If we have not rectified the problem
after an additional ninety (90) days, you may cancel this Agreement,
without penalty, upon five (5) business days written notice to us.
3. Service Period: The Service Period shall be: [X] thirty-six (36) full
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calendar months plus an initial period consisting of one (1) partial
calendar month. Month zero (0) means the partial calendar month beginning
on the Commencement Date. Month one (1) means the full calendar month
immediately following the Commencement Date, etc.
4. Minimum Customer Commitment: During the Service Period, in return for
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discounts inherent in the pricing outlined herein, you have agreed to use a
minimum dollar volume of network access, after discounts, in each month of
the agreement ("Minimum Customer Commitment"). In the event that Network
access charges do not meet the Minimum Customer Commitment you will be
billed for the difference between the amount actually charged within the
given month and the Minimum Customer Commitment
Minimum Customer Commitment: $200,000.00 per month.
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Portions of this agreement have been omitted pursuant to a confidential
treatment request. The omitted portions are indicated by [*****]. The
omitted information has been filed separately with the Securities and
Exchange Commission.
Page 1
<PAGE>
GENUITY Quotation
DiaLinx Services (Version 3.0)
Oct. 1999 Rev. 7-28-00
5. Rates and Charges: All rates and charges for the services defined within
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this contract are in effect. Please check the boxes beside all services
that you wish to have installed. If you choose to add services at a later
date, you can do so by sending a request to ops@genuity.com. All Network
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connect time is rounded up to the next highest minute and billed in one-
minute increments. Invoices are issued monthly, and are due net 30 days.
All pricing is listed as U.S. dollars.
For a complete listing of the all DiaLinx Access Numbers and associated
rates, a list of all access numbers can be obtained from your local account
representative, or downloaded from the following URL:
http://www.genuity.com/support/DiaLinx.htm.
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[X] 5.1 North American Rates: In any month where the number of
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Users accessing the DiaLinx Network exceeds the thresholds in the
table below, the applicable Rates for that month will be reduced
to the corresponding Rates.
The DiaLinx North American Per User (150 Hour Individual) Plan
covers access from any of the DiaLinx U.S. and Canadian Local
Access Numbers via analog and/or ISDN connections.
North American Rates
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# Users Per User Overage 800/888 800/888
N.A. N.A. Canadian US
150 Hour (per hr)
Plan (per hr) (per hr)
_______ (CA8A) (US8A, US8B)
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0-50,000 (*****)
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50,000+ (*****)
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100,000+ (*****)
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175,000+ (*****) (*****) (*****) (*****)
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250,000+ (*****)
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500,000+ (*****)
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5.1.1 Overage Rates: The 150 hour plan represents individual
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user activity, (i.e., the overage fee is applied when any
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individual user exceeds 150 hours). If the total hours of
access by each individual Base Rate User exceeds one-
hundred-fifty (150) hours/user, then the Base Rate for
that user will be adjusted upwards by the corresponding
rate listed above for each hour, or partial hour, that the
user exceeds 150 hours / user. Overage usage is billed to
the customer, not end user, on a calendar month.
The 150 Hour plan is based on individual user hours. The
number of users using 150 hours or more of network access
must not exceed [*****] of the customer's active user
base. In the event the number of users utilizing 150 or
greater hours within a calendar month exceeds [*****] of
the customer's active user base, Genuity will surcharge
the customer an additional [*****] of the total monthly
invoice for each percent, or fraction thereof, that the
percentage of such users exceeds [*****].
[For example, if 150 users out of a total 1000 valid
registered users accesses the DiaLinx Network for 160
hours, under this plan, the total invoice for the month
would be [*****] Calculations: Base Rates would be
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[*****]. Overage Rates would be [*****]. The invoice sub-
total is [*****]. This example assumes no other charges
are incurred (ie No 800 or International charges). Since
[*****] of the user base used more than 100 hours, and
Genuity charges an additional [*****] of the invoice, for
each [*****] the surcharge on the invoice will be [*****].
Thus, the total invoice will be [*****].
5.1.2 800/888 Charge: In addition to any other applicable
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charges under section 4.0, you will be charged the 800/888
charge for each hour that an End User accesses the Network
via the 800/888 access number. You may request that the
800/888 service be disabled at any time.
[*****=information that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential Treatment has been
requested with respect to the omitted portions.]
Page 2
<PAGE>
GENUITY Quotation
DiaLinx Services (Version 3.0)
Oct. 1999 Rev. 7-28-00
[_] 5.2 International Surcharges: In addition to any other
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applicable, charges, access users to the Network via any DiaLinx
International Access Number will incur an additional charge per
hour per user as detailed in the International Rate table below.
DiaLinx International Rates
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UK Europe/ Australia/NZ Mexico Asia Mexico 800 Freephone Caribbean/
Puerto Rico /Puerto Rico Access Thailand
800
Zone 1 Zone 2 Zone 3 Zone 4 Zone 5 Zone 6 Zone 7 Zone 8
(IDEM)* (_____)* (_____)* (_____)* (_____)* (_____)* (_____)* (_____)*
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(*****) (*****) (*****) (*****) (*****) (*****) (*****) (*****)
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DiaLinx International Rates
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Code A Code B Code C Code D Code E Code F Code G
(IPAA)* (IPAB)* (IPAC)* (IPAD)* (IPAE)* (IPAF)* (IPAG)*
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(*****) (*****) (*****) (*****) (*****) (*****) (*****)
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*Genuity Bill Codes.
DiaLinx - International: Worldwide Dial-Up Networking services
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are provided by the DiaLinx International Network according to
specific Regional Zones. The Zones are defined below:
*Zone 1: United Kingdom England, Scotland, Wales, Northern Ireland
*Zone 2: Europe Austria, Belgium, Denmark, Finland, France,
Germany, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Puerto Rico, Spain, Sweden,
Switzerland
*Zone 3: Australia/New Zealand Australia, New Zealand
*Zone 4: Mexico Mexico
*Zone 5: Asia Hong Kong, Japan, Singapore, Taiwan
*Zone 6: Mexico 800/Puerto Rico 800 Mexico 800 and Puerto Rico 800 Access
*Zone 7: Free Phone Access Free Phone access in France, Germany, Italy,
Netherlands, Sweden, and United Kingdom
*Zone 8: Caribbean/Thailand Anguilla, Antigua, Barbuda, Barbados, Bermuda,
Cayman Islands, Dominica, Dominican Republic,
Grenada, Guam, Jamaica, Montserrat, St. Kitts &
Nevis, Thailand, Tobago, Trinidad, Turks and Caicos
Islands
The GENUITY provided (dailer/phone book contains the modem speeds
for each location, along with a price code, which correlate to
the International rate table above
[_] 5.3 RADIUS Hosting: Genuity can setup and host a RADIUS
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authentication server at a physically secure and redundant server
farm. Genuity also provides a secure Web-based administration tool for
easy username administration. You will be charged the rates in
accordance with the rates below
Service Fee for greater than 1,000 Users Under 1,000 Users Fees
------------------------------------------------------------------------------------
RADIUS Hosting (*****) (*****)
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6. Spamming. Genuity reserves the right, at our discretion, to prohibit
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incidences of unacceptable use of electronic mail (as defined in our
Acceptable Use Policy) by restricting all outbound IP data packets using
port 25 to a single IP address. This IP address would be an SMTP mail
relay/post office controlled by the customer.
[*****=information that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.]
Page 3
<PAGE>
GENUITY Quotation
DiaLinx Services (Version 3.0)
Oct. 1999 Rev. 7-28-00
7. Credit Policy: Our acceptance of the pricing and commitments set forth in
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this Quotation is subject to Genuity's current credit approval policy. We
reserve the right to modify the terms of this Quotation, require additional
assurances, or reject the Quotation following credit review if terms
satisfactory to both parties cannot be agreed upon.
8. Additional Realms: Genuity will support five (5) RADIUS authentication
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realms to you. Customers who require additional realms will be charged a
monthly fee of $500.00 for a block of five (5) additional realms.
9. [_] Level 1 Vanity Number: Genuity will provision, as an additional
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service, a separate and unique vanity 800/877/888 number for the customer's
access to DiaLinx Level 1 Help Desk Services.
Genuity will charge the customer the appropriate rates for one (1) Unique
US 800/888 Number as defined in below. The customer will be required to
provide a minimum of five (5) vanity number options. If a number is taken,
Genuity will provision based upon the first available number within the
list.
Vanity 800/888 Number Installation: $500.00 one-time installation
Vanity 800/888 Number Rate: $100.00 per month
10. Confidentiality Clause: This document represents confidential information.
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You shall not disclose the terms or pricing of this agreement without our
prior written permission except pursuant to a valid legal requirement.
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Please sign below to indicate your understanding and acceptance of the terms of
this Quotation.
Company (Type or Print Full Customer Name): NETPLIANCE, INC.
Signature: Date:
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Print Name: Title:
-------------------------- -----------------------------
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Please sign below to indicate your understanding and acceptance of the terms of
this Quotation.
Company (Type or Print Full Customer Name): GENUITY SOLUTIONS INC.
Signature:___________________________ Date:______________________________
Print Name:__________________________ Title:_____________________________
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Page 4
<PAGE>
GENUITY Master Agreement for
Internetworking Services
Rev. May 2000
This Master Agreement between Genuity Solutions Inc. ("we") and the Customer
identified below ("you") includes the attached Service Schedules and Service
Quotations (collectively "Schedules") together with any additional Schedules
mutually agreed in writing in the future.
1. Services. We will provide you the Internetworking services ("Services")
specified in the Schedule(s) and Quotations. Our commencement of providing any
of the Services shall constitute our acceptance of this Master Agreement.
2. Prices. Prices are stated in the Schedules and are guaranteed for the Term
stated in the Schedules. If any of the Services are on a mouth-to-mouth basis,
we will give you at least thirty (30) days notice of a price change. In
addition, you are responsible for applicable taxes, tariffs, telecommunications
surcharges or other governmental charges due on account of the Services.
3. Payment. Unless otherwise stated in a Schedule, we will invoice you
monthly. You agree to pay within thirty (30) days from receipt of invoice. For
overdue invoices, you will pay interest of 1.5% for each month or part of a
month (or the maximum allowed by law, whichever is less).
4. Our Responsibility. We are responsible for providing the Services by
qualified personnel in a professional manner. WE DISCLAIM ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
5. Your Responsibility. You are responsible for the manner in which you use
the Services, including the maintenance and security of your data, computer
network and other facilities; your choice of equipment, software and online
content; and all other matters related to how you use the Services. Unless
expressly permitted by a Schedule or separate reseller agreement with us, you
shall not resell Services, or access to Services, directly or indirectly to
third parties.
6. Indemnification. We will indemnify you for damages, costs and attorneys
fees you incur from any claim that our design of the Services infringes any U.S.
patent, copyright, trademark, trade secret or other intellectual property right.
You will indemnify us for damages, costs and attorneys fees we incur from any
claim arising from your manner of using of the Services, your combination of the
Services with other products or services not provided by us, or your
modification of the Services. The indemnifying party shall conduct the defense
and shall have control of the litigation; the other party shall give prompt
notice of claims and shall cooperate in defending against the claim. THE PARTIES
DISCLAIM THE IMPLIED WARRANTY OF NON-INFRINGEMENT, RELYING INSTEAD ON THE TERMS
OF THIS SECTION.
7. IP Addresses. Upon expiration, cancellation or termination of the Agreement
or applicable Schedule, you shall relinquish any IP addresses or address blocks
assigned to you by us.
8. Acknowledgment. You agree that we may include your name in listings of our
customers.
9. Compliance with Laws. You shall not use or permit your end users to use the
Services in ways that violate laws or our acceptable use policy which is
published on our web site at http://www.genuity.com/aup/, infringe the rights of
others, or interfere with users of our network or other networks. For example,
you shall not distribute chain letters or unsolicited bulk electronic mail
("spamming"); propagate computer worms or viruses; use a false identity; attempt
to gain unauthorized entry to any site or network; distribute child pornography,
obscenity or defamatory material over the Internet; or infringe copyrights,
trademarks or other intellectual property rights. You further agree to comply
with U.S. export laws concerning the transmission of technical data and other
regulated materials via the Services.
10. Termination. Either party may terminate or cancel this Agreement if the
other fails to cure a material breach of the Agreement within thirty (30) days
after receiving written notice of the breach. We reserve the right but assume no
obligation, to suspend performance immediately if you are more than thirty (30)
days overdue in payments or if, in our reasonable judgment, you have violated
Section 9.
11. Limitation of Liability. EXCEPT FOR (A) INDEMNIFICATIONS PURSUANT TO
SECTION 6, (B) BREACH OF ANY CONFIDENTIALITY OBLIGATIONS STATED IN A SERVICE
SCHEDULE, AND (C) BREACHES BY YOU OF LICENSE TERMS APPLICABLE TO GENUITY-
PROVIDED SOFTWARE, NEITHER PARTY (NOR ITS SUPPLIERS OR CUSTOMERS) SHALL BE
LIABLE TO THE OTHER PARTY FOR PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
INDIRECT DAMAGES INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO
DATA ARISING OUT OF THE USE OR INABILITY TO USE SERVICES, EVEN IF THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Limitation of Damages. OUR AGGREGATE LIABILITY TO YOU RELATING TO OR
ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT
EXCEED (a) THE TOTAL AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN QUESTION,
DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO
YOUR CLAIMS OR (b) $100,000, WHICHEVER IS LESS.
13. Miscellaneous. The terms and conditions of this Agreement supersede all
previous agreements, proposals or representations related to the Services.
Except for assignments to Genuity affiliates or to any entity that succeeds to
the business of Genuity in connection with a merger or acquisition, neither
party may assign this Agreement without the prior written consent of the other
party. This Agreement shall be governed by the substantive laws of the
Commonwealth of Massachusetts. Any changes to this Agreement, or any additional
or different terms in your purchase orders, acknowledgments or other documents,
will not be effective unless expressly agreed to in writing by us.
GENUITY SOLUTIONS INC. NETPLIANCE, INC.
Genuity Solutions Inc. 1 of 2 MA
<PAGE>
GENUITY Master Agreement for
Internetworking Services
Rev. May 2000
By:___________________________ By: NETPLIANCE - Valerie Walden
Name:_________________________ Name:
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Title:________________________ Title:
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Date:_________________________ Date:
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Genuity Solutions Inc. 2 of 2 MA
<PAGE>
AMENDMENT NO. 1
TO
MASTER AGREEMENT FOR INTERNETWORKING SERVICES
The Master Agreement for Internetworking Services ("Master Agreement") by and
between Genuity Solutions Inc. ("we") and Netpliance, Inc. ("you") dated
_________________________ is hereby modified as set forth below. To the extent
that there are any conflicts between the terms of this Amendment No. 1 and the
terms of the Master Agreement, this Amendment No. 1 shall control.
Section 10. Termination. The last sentence in Section 10 is deleted and replaced
with the following provisions: "We reserve the right, but assume no obligation,
to suspend performance if you are more than 30 days overdue in payments or if,
in our reasonable judgment, you have violated Section 9, provided, however, we
will not suspend performance for non-payment unless you have failed to cure such
delinquency within 5 business days after receiving written notification from us,
identifying the amount overdue. In the event of a violation of Section 9, we
will exercise the right to suspend performance only as to the end-user(s) in
violation, and not as to you, unless we reasonably believe you are a knowing
participant in the violation."
Section 13. Miscellaneous. The words "Commonwealth of Massachusetts" are changed
to "State of New York".
Section 14. Order of Precedence. A new Section is added, entitled "Order of
Precedence," which reads as follows: "To the extent that any Service Schedule
specifically conflicts with the Master Agreement, the Service Schedule will
control. To the extent that any Service Quotation specifically conflicts with
the Service Schedule or the Master Agreement, the Service Schedule or Master
Agreement, as the case may be, will control, unless the Service Quotation
specifically refers to the conflicting verbiage in the Service Schedule or
Master Agreement, and specifically states that as to such verbiage the Service
Quotation will supersede and control."
Each individual executing this Amendment No. 1 for and on behalf of a party
represents that he or she is fully authorized to do so.
GENUITY SOLUTIONS INC. NETPLIANCE, INC.
By:______________________________ By:
--------------------------------
Name:____________________________ Name:
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Title:___________________________ Title:
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Date:____________________________ Date:
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<PAGE>
GENUITY Master Agreement for
Internetworking Services
Rev. May 2000
This Service Schedule is part of and is governed by the Master Agreement for
Internetworking Services ("Master Agreement"). The terms and conditions of the
Master Agreement are incorporated herein by reference.
1. Covered Services. We will provide you with the DiaLinx(R) Basic Services
and Enhanced Services ("DiaLinx Service") indicated in the applicable Genuity
Service Quotation ("Quotation") which is attached hereto or which we may provide
to you in the future for additional DiaLinx Service. The term of the Service
Period is one year or longer, as selected by you, and the corresponding fees are
described in the Quotation. Our commencement of providing DiaLinx Services to
you under the Quotation shall constitute our acceptance of the Agreement in
respect of such DiaLinx Service.
2. Service Description. DiaLinx Service provides you with dial-up Internet
access service, plus available enhanced services. Further details of the DiaLinx
Service are set forth in the applicable Service Description. Service
Descriptions are available from your Genuity sales representative
3. Renewal. We encourage you to contact us by sending an inquiry via email to:
renew@genuity.com prior to the expiration of the then-current Service Period to
renew the DiaLinx Service for an additional term of one (1) year or greater. If
the Service Period expires without being renewed in writing or cancelled, then
the Service Period will automatically be renewed for additional Service Periods
equal in duration to the initial Service Period. Renewal will be at your
existing pricing and Minimum Customer Commitment, unless we provide you with
notice of a price increase at least seventy-five (75) days prior to the
expiration of the then-current Service Period. Volume commitment ramps apply
only to the initial Service Period.
4. Minimum Customer Commitment. You agree to the Minimum Customer
Commitment(s) for each period as set forth in the Quotation. You agree that you
are obligated to pay the greater of your actual usage or the Minimum Customer
Commitment for the corresponding commitment period (e g monthly). In the event
that you terminate your use of the DiaLinx Service, the Minimum Customer
Commitment(s) due for the remaining term will be accelerated to be immediately
due in full.
5. Third Party Access. Subject to the terms and conditions of this Service
Schedule, you have the non-exclusive right to authorize access to DiaLinx
Services to your employees and/or to any third party (including the right to
sell such DiaLinx Service). You agree that if you offer DiaLinx Service other
than to your bona fide employees, you will do so only pursuant to a binding
agreement incorporating terms substantially similar to those gated in Section 18
(Mandatory Flow-down Terms) of this Service Schedule.
6. Responsibility for End Users. You agree to be responsible for all billing
and collection from end users and that you will pay us on a timely basis,
regardless of whether you collect payment from end users. You agree to be
responsible for all communications to and business relations with end users.
Unless you have purchased optional help desk services from us, you shall be
responsible for providing all technical support related to DiaLinx Service
access for end users, including but not limited to responding to inquiries and
questions, hot-line support, problem resolution, providing system configuration,
installation and support, as applicable and other such services and shall
maintain an organization which is highly trained and qualified to provide such
support. You are responsible for authenticating and authorizing access by your
end users to DiaLinx. Service. Unless you have purchased optional RADIUS hosting
services from us, you shall install, operate, and maintain a dedicated RADIUS
server meeting the RADIUS specifications published in Internet RFC 2138 and 2139
and all published derivative RFC's. Our RADIUS server will prompt each end user
for the end user's identification and password, and poll your RADIUS server for
access information. Unless otherwise provided for in the Quotation, we will
support up to a maximum of five (5) authentication realms (e.g.
companyname.com).
7. Equipment and Telephone Service. You are solely responsible for obtaining
and providing the telephone services and user modems necessary to access DiaLinx
Service. In no event will we be responsible for end user telephone charges.
8. Network Access Availability. ACCESS TO THE DIALINX NETWORK CANNOT BE
GUARANTEED TO YOU OR YOUR END USERS. END USERS MAY BE UNABLE TO ACCESS THE
DIALINX SERVICE AT ANY GIVEN TIME, AND DISCONNECTIONS MAY OCCUR FROM TIME TO
TIME. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU OR YOUR END
USERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE DIALINX SERVICE.
THIS DISCLAIMER IS IN ADDITION TO, NOT INSTEAD OF, THE DISCLAIMER, LIMITATION OF
LIABILITY AND LIMITATION OF DAMAGES CONTAINED IN THE MASTER AGREEMENT.
9. Regulatory Changes. We shall flow through to you any local exchange carrier
(LEC) price changes (a) that are attributable to changes in Federal or state
regulation, or (b) for Federally regulated services, that are treated as
exogenous regulatory cost changes by the Federal Communications Commission (the
"FCC") under its price caps regulations as defined in the FCC Rules, 47 C.F.R.
Section 61.45. For purposes of this paragraph, price changes attributable to
changes in regulation include, but are not necessarily limited to, price changes
reflecting total or partial elimination of any enhanced services provider
exemption from payment of interexchange access charges or any regulatory
decision which results in application of multiple Subscriber Line Charges to
ISDN Primary Rate interface circuits or channelized T1 circuits.
10. Compliance with Laws and Content Responsibility. You shall not use or
permit the DiaLinx Service to be used (a) in violation of any applicable export
laws (including without limitation any U.S. export laws); (b) in violation of
any applicable national, state, or local laws or regulations, including without
limitation any laws governing the import of the DiaLinx Service, or governing
the content which may be available via the DiaLinx Service; (c) in violation of
our acceptable use policy which is published on our web site at
http://www.genuity.com/aup/ ; or (d) in ways that infringe the rights of others,
or interfere with other users of our network or other networks. For example, you
shall not distribute chain letter or unsolicited bulk electronic mail
("spamming"); propagate computer worms or viruses; use a false identity; attempt
to gain unauthorized entry to any site or network; distribute child pornography,
obscenity or defamatory material over the Internet; or infringe copyrights,
trademarks or other intellectual property rights. We reserve the right to
suspend or terminate the DiaLinx Service (or any portion thereof) without notice
in the event that we believe that your use (or any of your end user's use) of
the DiaLinx Service maybe in violation of this section. We reserve the right to
prohibit incidences of unacceptable use of e-mail (as defined in do section) by
restricting all outbound IP data packets using port 25 to a single
Genuity Solutions Inc. 1 of 13 DiaLinx (Global Service)
<PAGE>
GENUITY Service Schedule
Dialinx Services
(Global Service)
Rev. May 2000
IP address equating to an SMTP mail relay/post office controlled by you. You
acknowledge that we have no control over or liability for the actions of local
jurisdictions, which may restrict or block the DiaLinx Service.
11. Century Compliance Limited Warranty. Genuity warrants that the Warranted
Services will be Century Compliant, pursuant to the terms of the Century
compliance Limited Warranty which is available on our Web Site,
http://www.genuity.com:8001/centurycompliance/limitedwarranty.htm. THIS CENTURY
COMPLIANCE LIMITED WARRANTY AND/OR REMEDIES DESCRIBED IN THE CENTURY COMPLIANCE
LIMITED WARRANTY FOR THE WARRANTED SERVICES PROVIDES GENUITY'S ENTIRE WARRANTY
AND OBLIGATION TO CUSTOMER RELATING TO CENTURY COMPLIANCE, AND CUSTOMER'S SOLE
AND EXCLUSIVE REMEDY FOR CENTURY COMPLIANCE RELATED CLAIMS.
12. Currency and Taxes. All payments shall be in U.S. Dollars. You are
responsible for the payment of all taxes (including without limitation
applicable VAT or withholding taxes but excluding taxes based solely on our net
income), import duties, or other applicable telecommunications or regulatory
fees (collectively, "Taxes"). You shall not deduct any such Taxes from the
amounts owed to us. In the event you are required to withhold Taxes from any
payment due to us, then the amount of such payment shall be automatically
increased to totally offset such Taxes, so that the amount actually remitted to
us, net of all Taxes, equals the amount invoiced or otherwise due.
13. Disputes. Any dispute arising out of or in connection with the DiaLinx
Service in a country other than the United States, shall be referred to and
finally resolved by arbitration in accordance with the Rules of the
International Chamber of Commerce then in force; provided, however, that either
party may, at its sole discretion, seek injunctive relief in the courts of any
jurisdiction as may be necessary and appropriate to protect its proprietary or
confidential information. The language used in the arbitral proceedings, and
the governing language of this agreement, shall be English. Unless otherwise
mutually agreed upon in writing by the parties, the site of the arbitration
shall be Boston, Massachusetts, USA. Judgment upon the award of the arbitration
may be entered in any court having jurisdiction thereof.
14. Governing Law. The governing law in any dispute shall be the substantive
law of the Commonwealth of Massachusetts, U.S.A. without regard to conflicts of
law. The parties expressly agree that the U.N. Convention on Contracts for the
International Sale of Goods shall not apply to the Agreement.
15. Local Access Numbers. We expect the DiaLinx network to change over time in
order to meet the needs of our customers. We reserve the right to add to,
delete or change the dial-in access numbers associated with a specified service
category from time to time. You will be notified of changes to the DiaLinx
network or access numbers via periodic e-mail updates. We may periodically add
additional dial up access service categories as the DiaLinx network evolves.
These additional services and respective prices will be made available on an on-
going basis, via e-mail updates notifying you of the additional service. Use of
such additional services by you or your end users will be deemed your acceptance
of the updated service and pricing. For a current list of services, pricing,
and dial up access numbers associated with each service, please consult our Web
page as listed in your DiaLinx Service Description or contact your Genuity
representative.
16. Credit Policy. Our acceptance of the pricing and commitments set forth in
the Quotation is subject to Genuity current credit approval policy. We reserve
the right to modify the terms of the Quotation, require additional assurances,
or reject the Quotation following credit review if terms satisfactory to both
parties cannot be agreed upon.
17. Force Majeure. If the performance of any obligation hereunder is
interfered with by reason of any circumstances beyond Genuity's reasonable
control, including but not limited to acts of God, labor strikes and other labor
disturbances, power surges or failures, or shall be excused from such
performance to the extent necessary, provided that Genuity shall use reasonable
efforts to remove such causes of nonperformance.
18. Mandatory Flow-down Terms. You agree to include terms substantially
similar to the following minimum terms in legally binding agreements with end
users who are not your bona fide employees. For the purpose of this section,
"Network Services Supplier" shall mean us, "Company" shall mean you, "User"
shall mean the non-employee end user, and "Network" shall mean the dig-up
network operated and maintained by us; and "Services" shall mean the DiaLinx
Service:
No Right of Resale. User may not resell or redistribute any Services.
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Content Responsibility. User understands that neither Company nor its
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Network Services Supplier is responsible for the content of the
transmissions which may pass through the Network. User agrees that it will
NOT use the Services in ways that violate laws, infringe the rights of
others, or interfere with the users, services, or equipment of other
networks. For example, you shall not distribute unsolicited advertising,
chain letters, or commercial electronic mail ("spamming"); propagate
computer worms or viruses; attempt to gain unauthorized entry to other
computers, data or networks; distribute child pornography, obscenity, or
defamatory material over the Internet; or infringe copyrights, trademarks,
or other intellectual property rights.
Warranty and Liability Limitations. COMPANY DOES NOT WARRANT THAT THE
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SERVICES WILL BE AVAILABLE ON A SPECIFIED DATE OR TIME OR THAT THE NETWORK
WILL HAVE THE CAPACITY TO MEET THE DEMAND OF END USERS DURING SPECIFIC
HOURS. USER MAY BE UNABLE TO ACCESS THE NETWORK AT ANY TIME, AND
DISCONNECTION FROM THE NETWORK MAY OCCUR FROM TIME TO TIME. NEITHER COMPANY
NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO
COMPANY'S OR USER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR
UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF USER'S DATA
FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT
MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE
OCCURS AS A RESULT OF COMPANY'S OR ITS NETWORK
Genuity Solutions Inc. Page 2 of 3 DialLink (Global Service)
<PAGE>
GENUITY Service Schedule
Dialinx Services
(Global Service)
Rev. May 2000
SERVICE SUPPLIERS NEGLIGENCE IN NO EVENT WILL COMPANY OR ITS NETWORK
SERVICES SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO
LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR FOR ANY OTHER SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH THE USE OF OR INABILITY TO USE SERVICES OR PRODUCTS
PROVIDED HEREUNDER.
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Please sign below to indicate your acceptance of the
terms of this Service Schedule.
NETPLIANCE INC.
Signature:
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Name:
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Title:
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Date:
----------------------------------------------------
GENUITY SOLUTIONS INC.
Signature:_______________________________________________
Name:____________________________________________________
Title:___________________________________________________
Date:____________________________________________________
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Genuity Solutions Inc. Page 3 of 3 DialLink (Global Service)
<PAGE>
AMENDMENT NO. 1
TO
SERVICE SCHEDULE FOR DIALINX SERVICES
The Service Schedule for DiaLinx Services "(Service Schedule") by and between
Genuity Solutions Inc. ("we") and Netpliance, Inc. ("you") dated 7/31/00 is
hereby modified as set forth below. To the extent that there are any conflicts
between the terms of this Amendment No. 1 and the terms of the Service Schedule,
this Amendment No. 1 shall control.
Section 3. Renewal. The verbiage in the Service Schedule is deleted in its
entirety and replaced with the following: "We encourage you to contact us by
sending an inquiry via email to: renew@genuity.com prior to the expiration of
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the then-current Service Period to renew the DiaLinx Service for an additional
term of one (1) year or greater. If we notify you of upcoming expiration at
least thirty (30) days prior to the end of the Service Period, and you take no
action to renew or cancel your Service, your Service Period will automatically
be renewed for one (1) year. If we fail to notify you of upcoming expiration at
least thirty (30) days prior to the end of the Service Period, and you take no
action to renew or cancel your Service, your Service Period will automatically
be renewed on a mouth-to-month basis, cancelable by either party on thirty (30)
days prior written notice. Renewal will be at your existing pricing and Minimum
Customer Commitment, unless we provide you with notice of a price increase at
least ninety (90) days prior to the expiration of the then-current Service
Period. Volume commitment ramps apply only to the initial Service Period."
Section 4. Minimum Customer Commitment. The last sentence of this section is
deleted and replaced with the following: "In the event that you terminate your
use of the DiaLinx Service, the following liquidated damages will become
immediately and payable: fifty percent (50%) of your Minimum Customer
Commitment for the next twelve (12) months of your remaining Service Period, and
twenty-five percent (25%) of your Minimum Customer Commitment for any additional
Service Period remaining."
Section 9. Regulatory Changes. The following provision is added after the end
of the first sentence of this Section: "If allowed by applicable federal or
state regulations, and if such price changes are wholly within the control of
Genuity Solutions, Inc., we will provide you with thirty (30) days advance
written notice before any such price changes go into effect."
Section 10. Compliance with Laws and Content Responsibility. In the first
sentence, second line, the word "knowingly" is inserted between "not" and "use."
In the third sentence, beginning in line 16, is deleted and replaced with the
following provisions: "We reserve the right to suspend or terminate the DiaLinx
Service (or any portion thereof) in the event that we believe that your use (or
any of your end user's use) of the DiaLinx Service may be in violation of this
section, provided, however, we will exercise said right only as to the end-
user(s) in violation, and not as to you, unless we reasonably believe you are a
knowing participant in the violation. Notwithstanding the foregoing, we reserve
the right to suspend or terminate the DiaLinx Service immediately for violations
of this section if required to do so by law enforcement or regulatory
authorities."
Section 13. Disputes. This section is deleted in its entirety.
Genuity/Netpliance Service Schedule 1 Amendment No. 1
Rev. 7-28-00
<PAGE>
Section 14. Governing Law. The words "Commonwealth of Massachusetts" are
deleted and replaced by "State of New York".
Section 19. Assignment. A new section entitled "19. Assignment" is added, to
read as follows: "Neither party may assign this Service Schedule without the
prior written consent of the other party, which consent will not be unreasonably
withheld or delayed. Notwithstanding the foregoing, we may, without your prior
written consent, assign this Service Schedule, to a Genuity affiliate or to any
entity that succeeds to the business of Genuity in connection with a merger or
acquisition. With regard to any assignment that requires the other's consent,
if consent is refused, then at your request Genuity will continue to provide
Services hereunder during a ninety (90) day transition period. If Genuity
refuses to consent to your assignment, you will be excused from paying any
termination charges, but you will be liable for any charges that have accrued
under the Agreement prior to the effective date of the termination."
Each individual executing this Amendment No. 1 for and on behalf of a party
represents that he or she is fully authorized to do so.
GENUITY SOLUTIONS INC. NETPLIANCE, INC.
By:_______________________________ By:
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Name:_____________________________ Name:
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Title:____________________________ Title:
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Date:_____________________________ Date:
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Genuity/Netpliance Service Schedule 2 Amendment No. 1
Rev. 7-28-00