Exhibit 10.19
FASTNET-WebTV Network Services Agreement
This Agreement is made and entered into on this September 4, 1997
("Effective Date") between You Tools Corporation / FASTNET, a Pennsylvania
corporation, with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxx #000, Xxxxxxxxx, XX,
00000 ("FASTNET"), and WebTV Networks Inc., a California corporation, with
offices at 000 Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 ("WNI").
The parties hereto agree and bind themselves as follows:
1. SERVICE
1.1 NETWORK SERVICES: FASTNET shall sell, and WNI shall purchase,
telecommunications services for the interconnection of WNI's
subscriber(s) to WNI's facilities. These services consist of two
main components:
1.1.1 Dialup Network Services: FASTNET shall provide dialup modem
access from WNI Subscribers via common carrier switched
telephone circuits to FASTNET's packet-switched IP network
using telecommunications standards and compatible Internet
protocols using facilities, equipment and software more
fully described in Schedule A.
1.1.2 Connectivity between FASTNET and WNI: FASTNET shall provide
connectivity between FASTNET's dialup network facilities and
WNI's facilities through the Internet or by direct (e.g.
dedicated physical or virtual circuit) connection, at WNI's
election as further described in Schedule C. Except as
otherwise provided in Schedule C, the cost for establishing
and maintaining such connectivity shall be included with the
prices stated in schedule B.
1.2 NETWORK PERFORMANCE: FASTNET shall use all commercially
reasonable efforts to operate its network services seven (7) days
per week, twenty-four (24) hours per day, each day of the year.
FASTNET's telecommunications services provided to WNI should be,
at a minimum, of a quality usual and customary in the industry
for regional Internet access providers.
1.3 NETWORK INTEROPERABILITY: Both parties agree to comply with the
technical requirements listed in Schedule A.
1.4 NETWORK COVERAGE: FASTNET currently maintains a local calling
area footprint of local access numbers (each, a "dialup POP") in
Delaware, New Jersey, and Pennsylvania, as described in Schedule
D. FASTNET will not reduce this local calling area coverage below
90% of the existing local calling areas listed in Schedule D, for
a period greater than thirty (30) days. FASTNET shall provide WNI
with thirty (30) days written
notice prior to discontinuing an existing local access number
and/or a particular geographic location. If FASTNET breaches any
obligation of this Section 1.4, WNI shall have the right to
renegotiate all terms and conditions of this Agreement without
affecting the validity and enforceability of this Agreement until
this Agreement is replaced by a new agreement between the parties
or until this Agreement is otherwise terminated as provided
herein. If such renegotiation does not result in an agreement
between the parties within thirty (30) days, WNI shall have the
right to immediately terminate this Agreement.
1.5 CUSTOMER SERVICE: WNI is responsible for all Subscriber customer
support, billing, and collections. FASTNET shall not be
responsible for any hardware or software requirements of WNI's
Subscribers to connect with FASTNET's facilities. FASTNET's
relationship under this agreement is solely with WNI and not with
any WNI Subscriber.
1.6 TECHNICAL SUPPORT: FASTNET shall provide to WNI a network
operations Internet email address for reporting by WNI to FASTNET
of problems in FASTNET's connectivity or performance affecting
WNI subscribers and transmittal of trouble tickets initiated from
WNI's Service Operations Center. FASTNET shall monitor said
mailbox to insure acknowledgment of email problem reports and/or
trouble tickets within one (1) hour of receipt and shall insure
that problem resolution for trouble tickets received is reported
back to the designated WNI Service Operations Center email
address within one hour of resolution. FASTNET will provide email
notification to a designated WNI Internet email address of any
service problems which may affect WNI subscribers within one (1)
hour of discovery, including but not limited to POP failures,
Internet access interruptions or routing instabilities, telco
connectivity problems, dial-in port outages or serious congestion
(latency) problems.
In addition, FASTNET shall provide WNI with a toll-free number
and a pager number to report problems relating to FASTNET's
network availability or performance which affect WNI subscribers
and to escalate problems which are significantly affecting WNI
subscribers, whether or not previously reported by email. The
toll-free and pager numbers shall be used only by WNI and shall
not be released to WNI's Subscribers. Such telephone assistance
shall be available to WNI on a continuous basis, twenty-four (24)
hours per day, seven (7) days per week, for each day of the year,
and shall be provided by a qualified technician. FASTNET shall
use commercially reasonable efforts to begin analysis of any
request for assistance or report of problems as soon as possible
after discovery thereof, and in no event more than one half hour
after any call made by WNI for such purpose. FASTNET shall make
all repairs required for the proper functioning of its systems as
soon as commercially reasonable after the discovery thereof or
WNI's notice to FASTNET thereof. FASTNET
shall actively monitor the performance of its systems, and shall
notify WNI promptly of any condition which materially adversely
affects such performance. FASTNET will provide WNI with notice as
far in advance as is reasonably possible as to the changes in its
service infrastructure, hours of operation, modification to
communications protocols and any other planned changes in the
service that could reasonably be expected to have a material
affect on WNI's ability to service its end users.
1.7 RESALE: The services provided by FASTNET are for the use of WNI
Subscribers, and WNI will not resell the services provided by
FASTNET hereunder to any other party for resale by such party
except with the prior written approval of FASTNET, which approval
shall be in the sole discretion of FASTNET, and only if such
party agrees in writing to all of the terms and conditions of
this Agreement. WNI shall not at any time or in any manner
represent itself as the operator of FASTNET.
1.8 PROJECT MANAGEMENT: Prior to the termination of the testing
period provided in Section 7, each party will assign a project
manager for the term of the contract to serve as the other
party's primary single point of contact.
1.9 REPORTING: Within five (5) business days of the end of each
calendar month, and in no event later than the date that any
invoice pursuant to Section 2.2 is delivered, FASTNET shall
provide WNI with monthly usage data detailing network access by
WNI's Subscribers, on which FASTNET shall base its billing to
WNI.
2. PRICING AND BILLING
2.1 PRICING: The prices in Schedule B apply for all services provided
by FASTNET under this Agreement. For all other services which WNI
may request, FASTNET's list prices apply unless other prices have
been specifically negotiated.
2.2 INVOICES: FASTNET shall provide to WNI a monthly invoice for all
sums due pursuant to this Agreement, and WNI agrees to pay all
such invoices to FASTNET no later than thirty (30) days after the
receipt of such invoices. Any disputed amounts shall be resolved
by arbitration pursuant to the provisions of Section 13. Any
payment made more than thirty (30) days after due is subject to a
charge of the lesser of 1% per month or the maximum legal
interest rate.
2.3 NETWORK AVAILABILITY: In the event that certain percentages of
Customers cannot establish a connection at FASTNET's POPs, the
following shall apply:
If at least 10% of WNI Subscriber calls to FASTNET's POPs do
not connect due to factors within the reasonable control of
FASTNET during the course of a given month, and WNI finds it
necessary to redirect those Access calls to a different ISP,
then the Base Charges for that month shall be reduced by the
percentage of calls experiencing such difficulties as
compared to the total number of WNI Customer Access calls to
FASTNET's POPs minus 10%.
FOR EXAMPLE, IF 12% OF WNI'S CUSTOMERS CANNOT CONNECT TO
FASTNET OVER THE PERIOD OF ANY MONTH, THE TOTAL CHARGE TO
WNI FOR THAT MONTH WILL BE REDUCED BY 2%.
3. END USER AGREEMENT
WNI agrees to have all of its Subscribers enter into an end user agreement (the
"End User Agreement") in substantially the form provided to FASTNET, the receipt
and adequacy of which FASTNET acknowledges. In addition to it rights under
Section 6.1, FASTNET may deny or refuse connection or access to any FASTNET
dialup POP to any WNI Subscriber who violates the End User Agreement or notifies
FASTNET that it has a claim against FASTNET or that FASTNET is or might be
responsible to such customer for damages related to any services provided to
such customer through WNI. WNI may amend the end user agreement once per
calendar quarter by giving FASTNET written notice of amendment.
4. INDEMNIFICATION
WNI shall defend, indemnify, and hold harmless FASTNET against any claims, costs
or expenses (including reasonable attorneys' fees) arising out of, relating to
or resulting from any breach of this Agreement by WNI, or any use by WNI of
FASTNET's services in violation of this Agreement. FASTNET shall defend,
indemnify, and hold harmless WNI against any claims, costs or expenses
(including reasonable attorneys' fees) arising out of, relating to or resulting
from any breach of this Agreement by FASTNET.
5. TERM
The term of this Agreement shall commence on the Effective Date hereof and shall
continue until the date which is two (2) years from the date hereof, which term
shall be automatically renewed for additional one-year terms, provided that
neither party has delivered to the other party a written notice of intent not to
renew for the forthcoming term. Such notice of intent shall be delivered not
less than 120 days in advance of the end of the current term.
6. TERMINATION
6.1 This Agreement may be terminated as follows:
6.1.1 Either party may terminate this Agreement for cause,
without penalty, in the event that the other party breaches
any material terms of this Agreement. Prior to any
termination under this Section 6.1.1, the non-breaching
party shall first give the other party written notice of its
intent to terminate which shall specify the problem(s)
constituting cause. The other party will have thirty (30)
days from the date of receipt of such notice to correct the
problem. If the problem is not corrected within such period,
the non-breaching party may terminate this Agreement upon
notice to the breaching party.
6.1.2 FASTNET may terminate this Agreement without penalty upon
ten (10) days written notice to WNI, if WNI permits a
violation of the acceptable use policy set forth in its End
User Agreement and does not act to remedy such violation
within seven (7) days after receiving written notification
of such violation from FASTNET.
6.1.3 FASTNET may terminate this Agreement without penalty if any
amounts due and owing by WNI remain unpaid sixty (60) days
after the date of invoice and FASTNET has notified WNI that
said amounts are past due, 10 business days prior to
termination.
6.1.4 Either party may terminate this Agreement for convenience
after giving the other party six (6)-month written notice.
In the event of any termination under this Section 6.1.4,
FASTNET will maintain service availability at least the
usage level of the immediately preceding full month for six
(6) months from the date notice is received by FASTNET.
6.1.5 As provided by Section 7.
6.2 The exercise of any right of termination under Section 6.1 shall
be in addition to, and not in lieu of, any other rights and
remedies of the nonbreaching party hereunder. Notwithstanding
anything to the contrary in this Agreement, the provisions of
Sections 4, 9, 10, 11, 12, 13, 14 and 15 shall survive the
expiration or termination of this Agreement for any reason.
7. TESTING
During the period of sixty (60) days following execution of this Agreement, both
parties shall use all commercially reasonable efforts to integrate their
respective networks to provide the connectivity described in Schedule C and
shall conduct testing to assure such
connectivity. If either party shall reasonably declare the testing results to be
unsatisfactory at the conclusion of the sixty (60) day period, then the parties
shall have another twenty (20) days to correct the problem; and if such
correction is not completed to the mutual and reasonable satisfaction of the
parties within such time, then either party shall be entitled, upon written
notice to the other party, to terminate this Agreement without further liability
to either party. If no such notice is given within eighty (80) days of the
execution hereof, satisfactory completion of technical testing shall be
presumed, and the contract shall remain in full force and effect. Billing will
begin thirty (30) days after the termination of testing, at the rates described
in Schedule B. If testing is completed during the course of a month, the first
month's billing will be prorated to reflect the shortened month. Testing may be
declared complete before the 60 day testing period is complete if both parties
agree.
8. FORECASTS
WNI shall not be required to provide expected usage forecasts to FASTNET. WNI
shall use commercially reasonable efforts to provide FASTNET with advance
information as to marketing programs which WNI expects will materially impact
future loads, particularly concerning loads in FASTNET's geographical
locations/POPs.
9. NO PUBLICITY
Neither party shall disclose the prices and terms of this Agreement, except for
disclosure in confidence to its employees and consultants, accountants,
attorneys, bankers, investors, potential investors, or as required by law.
Neither party shall publicize the existence of this Agreement without the
written consent of the other, and in the event of such agreement, all press
release materials shall be reviewed and approved by the other party prior to the
publication of such press release materials.
10. WAIVER OF WARRANTIES
FASTNET MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
SERVICE AND PRODUCTS IT IS PROVIDING UNDER THIS AGREEMENT. FASTNET HEREBY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
FASTNET WILL NOT BE RESPONSIBLE FOR ANY DAMAGE SUFFERED BY WNI OR ITS CUSTOMERS
AS A RESULT OF ANY FAILURE NOT CAUSED BY AN ACT OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF FASTNET NETWORK FUNCTIONALITY, INCLUDING LOSS OF DATA RESULTING
FROM DELAYS, NONDELIVERIES, MISDELIVERIES, OR SERVICE INTERRUPTIONS CAUSED BY
FASTNET'S OWN NEGLIGENCE OR ANY ERRORS OR OMISSIONS OF WNI OR ITS CUSTOMERS.
USE BY WNI OR ITS CUSTOMERS OF ANY INFORMATION OBTAINED VIA FASTNET'S NETWORK IS
AT WNI'S AND ITS CUSTOMERS' OWN RISK, AND FASTNET CANNOT GUARANTEE THE ACCURACY
OR SECURITY OF ANY NETWORK CONTENT. FASTNET SPECIFICALLY DENIES ANY
RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS
SERVICES.
11. LIMITATION OF LIABILITY
NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY INCIDENTAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND (INCLUDING LOST REVENUES
OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION
WITH OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER SUFFERED BY
THE OTHER OR BY ANY ASSIGNEE OR OTHER TRANSFEREE OF, OR PARTY CLAIMING RIGHTS
DERIVED FROM, THE OTHER, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT FOR FASTNET'S BREACH OF SECTION 14 OR FASTNET'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT FOR WNI'S BREACH OF SECTION 2.2, IN
NO EVENT OR CIRCUMSTANCE SHALL EITHER PARTY'S AGGREGATE LIABILITY HEREUNDER
EXCEED THE LARGEST AMOUNT PAID BY WNI TO FASTNET FOR SERVICES FOR ANY ONE MONTH
PERIOD AND WITH RESPECT TO CLAIMS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
FASTNET'S AGGREGATE LIABILITY SHALL NOT EXCEED THE LARGEST AGGREGATE AMOUNT PAID
BY WNI TO FASTNET FOR ANY THREE (3) CONSECUTIVE MONTHS.
12. GOVERNING LAW
This Agreement shall be governed by and construed enforced in accordance with
the laws of the State of California. The federal and state courts within the
State of California, Northern District, shall have exclusive jurisdiction to
adjudicate any dispute arising with the Agreement or any disclosure by the
Discloser of its Confidential Information to Promisor, and Promisor hereby
consents to such jurisdiction.
13. DISPUTE RESOLUTION
13.1 Any and all disputes arising under or related to this Agreement
shall be submitted to binding arbitration in Santa Xxxxx County,
California under the commercial arbitration rules then prevailing
of the American Arbitration Association, except as otherwise
provided herein and judgment upon any award rendered may be
entered and enforced in any court of competent jurisdiction.
13.2 The arbitrator shall be a person who is knowledgeable in
telecommunications and familiar with the telecommunications
industry.
13.3 In the event of any such arbitration or any court action, the
losing party shall pay all reasonable costs of collection, court
costs or costs of arbitration and attorneys' fees of both parties.
14. CONFIDENTIALITY
The parties have previously signed a Mutual Non-Disclosure Agreement which is
incorporated by reference herein and which shall be in effect during the term of
this agreement or attachment E, whichever is longer.
15. GENERAL PROVISIONS
15.1 ENTIRE AGREEMENT: The parties hereto acknowledge that they have
read this entire Agreement and that this Agreement and the
exhibits attached hereto constitute the entire understanding and
contract between the parties and supersede any and all prior or
contemporaneous oral or written communications with respect to the
subject matter hereof. This Agreement shall not be modified,
amended or in any way altered except by an instrument in writing
signed by the parties.
15.2 RELATIONSHIP OF PARTIES: The parties to this Agreement are
independent contractors. No agency, partnership, joint venture or
employment is created as a result of the Agreement. Neither party
is authorized to bind the other in any respect whatsoever.
15.3 BINDING EFFECT: Except as herein otherwise specifically provided,
this Agreement shall be binding upon and inure to the benefit of
the parties and their legal representatives, heirs,
administrators, executors, successors and assigns.
15.4 PLURAL/GENDER: Whenever from the context it appears appropriate,
each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in the
masculine, the feminine or the neuter gender shall include the
masculine, feminine and neuter. The term "person" means any
individual, corporation, partnership, trust or other entity.
15.5 SEVERABILITY: If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall
be held invalid, the remainder of this Agreement, or the
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
15.6 COUNTERPARTS: This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which, when taken together, shall constitute one and the same
instrument. It shall not be necessary for all parties to execute
the same counterpart hereof.
15.7 WAIVER: No failure on the part of either party to exercise, and
no delay in exercising, any right or remedy hereunder shall
operate as a waiver
thereof; nor shall any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right or remedy granted hereby or by
law.
15.8 NOTICE: Unless otherwise provided, any notice to be given
hereunder shall be effective on the first day after dispatch.
Such notice shall be sent by first class mail, postage prepaid and
marked for delivery by certified or registered mail, return
receipt requested, addressed to the parties listed below at their
respective places of business, or at such other addresses of which
notice has been given to the addressing party:
If to WebTV Networks, Inc.:
Attention: Xxxx Xxxxx
WebTV Networks, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
With a copy to:
Attention: WebTV Legal
WebTV Networks, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
If to FASTNET:
Attention: Xxxxx Xxx Xxxxx
You Tools Corporation / FASTNET
0000 Xxxxxxxx Xxxxxx, Xxxxx #000
Xxxxxxxxx, XX 00000
With a copy to:
Attention: Xxxxxxxx Xxxxxx - FASTNET Legal
Miele, Cooper, Xxxxxxx and Xxxxxxxx
00 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
15.9 ASSIGNMENT: WNI shall be entitled to assign all or any portion of
its rights or delegate its obligations under this Agreement
without the prior written consent of FASTNET.
15.10 FORCE MAJEURE: No party shall be liable by reason of any failure
or delay in the performance of its obligations due to riots,
fires, explosions, acts of God, war, governmental action or any
other cause which is beyond
the reasonable control of such party; provided that in the event
that a force majeure described in this Section 15.10 extends for
a period in excess of sixty (60) days, the other party shall be
entitled to immediately terminate this Agreement.
15.11 COMPLIANCE WITH LAWS: Each party shall comply with all laws,
regulations and other legal requirements that apply to this
Agreement. FASTNET hereby warrants that, to its knowledge, it has
complied with all laws, regulations, and orders relating or
pertaining to the provision of the services to be provided under
this Agreement, including without limitation, all applicable state
or federal legislation or rule applicable to the services in any
material respect. To the knowledge of FASTNET, material permits,
licenses, and authorizations required by any regulatory bodies
have been obtained and are in effect for the services.
15.12 FACSIMILE TRANSMISSION: Parties to this Agreement are authorized
to execute the Agreement, and transmit a signed copy of same via
facsimile to the other parties, who hereby agree to accept and
rely upon such documents as if they bore original signatures. The
parties sending such facsimiles hereby acknowledge and agree to
provide to the other parties, within seventy-two (72) hours of
transmission, the Agreement bearing an original signature.
15.13 NO THIRD PARTY BENEFICIARY: The rights and remedies provided
herein are for the exclusive benefit of the parties hereto and
their permitted assignees. No right or benefit of any of the
terms and conditions herein is intended to, or shall be afforded
to any third party.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date first above recited.
WEBTV NETWORKS, INC. YOU TOOLS CORPORATION / FASTNET
By:/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxx Xxxxx
------------------ ---------------------
Name: Xxxxxxx Xxxxx Name: Xxxx Xxx Xxxxx
---------------- ----------------
Title: Vice President Title: CEO
--------------- -------
SCHEDULE A
NETWORK INTEROPERABILITY
1. FASTNET shall make its dial-up (Internet) network access facilities
available to WNI's Subscribers via the public switched telephone network
using circuit termination equipment which complies with current interface
and modem standards (i.e. V.34 for 28,800 bps service, with extensions for
33,600 speeds as available) and supports dial-in connection speeds of (at
least) 28,800 bps. In addition, FASTNET will use equipment which supports
PPP connections and PAP authentication in a manner which is compatible with
WNI client and server software, which compatibility shall be ascertained
during testing (Agreement section 7). FASTNET will notify WNI of changes in
its modem and terminal server hardware and software in advance of making
such changes and if WNI should determine that planned changes are not
compatible with WNI systems and services, WNI may exercise its rights under
section 6.1.1 of this Agreement.
2. FASTNET shall provide to WNI telnet access with a login account on a Unix
host computer attached to its network with telnet access and the ability to
issue ping and traceroute commands from within FASTNET's network. If
FASTNET does not have an available Unix host for telnet access, they shall
identify one or more computers within it's network which will properly
respond to ICMP requests and traceroute commands issued from other Internet
locations outside of FASTNET's network.
3. FASTNET shall operate a proxy server that can identify access by WNI
Subscribers and forward login attempts from such Subscribers to WNI's
Radius server for authentication, provided that WNI's Radius server can be
reached through the Internet from FASTNET's network, or with dedicated
lines between the parties.
4. FASTNET shall operate a TCP/IP network that can link WNI's Subscribers who
connect to FASTNET's dialup network access facilities to WNI's servers,
provided WNI's servers can be reached through the Internet from FASTNET's
network, or with dedicated lines between the parties.
5. FASTNET shall provide WNI with applicable Radius software, as it is
required for interoperability with FASTNET's Radius implementation. WNI
will be responsible for any fees to third parties for licensing this
software for the copies used by WNI. In connection with obtaining the
source code for the Radius Software, WNI must agree to reasonable
confidentiality and source code protection requirements of the owner of the
Radius Software and FASTNET.
6. FASTNET's network services shall maintain Radius server interoperability
during the course of the contract.
7. WNI agrees that it shall operate its own Radius server, which will perform
user validation functions, and will maintain this server in a secure
environment. WNI also
will maintain this server with reasonably current versions of the Radius
protocols as provided by FASTNET.
8. WNI agrees to assign each Subscriber a unique identification number for
billing purposes, and to reasonably cooperate with FASTNET in establishing
the structure of this identification number.
9. WNI and FASTNET each agree to cooperate with the other in identifying and
resolving any security infringements which involve WNI's Subscriber and
FASTNET's network.
10. WNI will impose inactivity time-outs on the WebTV boxes of a maximum of 15
minutes. Inactivity time-outs disconnect the WNI Subscriber's box from
FASTNET when the user has not sent any commands to the box for the
specified period of time. In addition, WNI provides two other backup
timeouts should the first timeout fail. FASTNET will not implement server
side timeouts for WNI customers.
SCHEDULE B
DIALUP NETWORK SERVICES PRICING
1. FASTNET SHALL OFFER 2 DIFFERENT PRICING PLANS:
1.1 "PER SUBSCRIBER" PRICING PLAN: At the end of each month, FASTNET
shall count the number of unique Per Subscriber IDs that were used
to connect to the service during that month. A Per Subscriber ID
that was used in a prior month and that was not used in the month
to be billed shall not be included. WNI will then be billed an
amount equal to this number of unique Per Subscriber IDs
multiplied by a price per Subscriber defined as follows:
Pricing shall be at $[*] per month. A mutually agreed upon
written pricing plan can replace this pricing at any time.
1.2 "PER HOUR" PRICING PLAN: At the end of each month, FASTNET shall
calculate the cumulative numbers of hours spent on-line by WNI
Subscribers that were identified by a Per Hour ID. Each
Subscriber's usage will be calculated in seconds and converted to
hours with one decimal place, or in six minute increments. WNI
would then be invoiced an amount equal to this number of hours
multiplied by a price per hour defined as $[*] per hour. A
mutually agreed upon written pricing plan can replace this pricing
at any time.
Whenever a WebTV box connects to FASTNET, WNI shall ensure that the
WebTV box uses an ID whose prefix identifies which pricing plan to use to xxxx
that connection (a "Per Subscriber ID" or "Per Hour ID," as applicable).
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
***IMPORTANT NOTE!!! THE FOLLOWING RATE CENTERS
ARE NOT ENABLE FOR USE BY WEB TV***
The rate centers shown below should be included in Web TV's NOVEMBER (or later)
schedule. FASTNET will advise when facilities are ready. These locations are
installed and currently are being used by FASTNET engineering. DO NOT USE THESE
NPA-NXX until advised!
RATE CENTER LOCATION NPA NXX
------------------------------------------------------------------
Holland Township Phillipsburg 908 000
Xxxxxxxxx Xxxxxxxxx 609 000
Xxxxxxxxx Xxxxxxxxx 609 283
Mount Xxxxx Xxxxx Xxxxx 000 000
Xxxxxxxxxx Xxxxxxxxxx 609 000
Xxxxxxx Xxxxxxx 000 000
Xxxxxxxxxx Xxxxxxxxxx 609 000
Xxxx Xxx Xxxx Xxx 609 353
Camden Camden 609 000
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx 609 000
Xxxxxxxxxxx Xxxxxxxxxxx 609 325
Gloucester Gloucester 609 349
Merchantville Merchantville 609 000
Xxxxxxxxx Xxxxxxxxx 609 369
Williamstown Williamstown 609 327
Glassboro Glassboro 609 244
Pitman Pitman 609 000
Xxxxxxxxxx Xxxxxxxxxx 609 281
Hightstown Hightstown 609 336
Xxxxx Xxxxx 609 000
Xxxxx Xxxxx Xxxxx Xxxxx 609 276
Wilmington Wilmington 302 252
Dover Dover 302 000
Xxxxxxxxxx Xxxxxxxxxx 302 752
Allentown Allentown 610 295
Bethlehem Bethlehem 610 000
Xxxxxx Xxxxxx 610 000
Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx 610 335
Collegeville Collegeville 610 342
Downingtown Downingtown 610 343
Philadelphia Sub Zone 30 Norristown 610 382
Philadelphia Sub Zone 36 Xxxxx 610 386
RATE CENTER LOCATION NPA NXX
------------------------------------------------------------------
Phoenixville Phoenixville 610 422
Kutztown Kutztown 610 426
Pottstown Pottstown 610 427
Center Point Center Point 610 528
Philadelphia Sub Xxxx 00 Xxxxxxxxx-Xxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxx-Xxxxxx Xxxx 610 537
Philadelphia Sub Xxxx 00 Xxxxxx-Xxxxxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxx Xxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxxxx Xxxxxxx 610 387
Philadelphia Sub Zone 11 Xxxxxxx 610 546
Philadelphia Sub Xxxx 00 Xxxxx 000 000
Xxxxxxxxxxxx Xxx Xxxx 13 Swarthmore 610 549
Philadelphia Sub Zone 00 Xxxxx Xxxxx 000 000
Xxxxxxxxxxxx Sub Zone 00 Xxxxxxxx-Xxxxxxx Xxxxxx 000 000
Xxxxxxx Xxxxxxx 610 568
Royersford Royersford 610 000
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx 610 634
Philadelphia Sub Xxxx 00 Xxxxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxx-Xxxxxxx-Xxxxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxxx Xxxxx 610 728
Philadelphia Sub Zone 31 Conshohocken 610 000
Xxxx Xxxxxxx Xxxx Xxxxxxx 610 883
Exton Exton 610 884
Eagle Eagle 610 885
SCHEDULE C
CONNECTIVITY BETWEEN FASTNET AND WNI
FASTNET will provide transport via the Internet of WNI Subscriber traffic (IP
packets) between (1) FASTNET's network and WNI's network and server computers
and (2) between WNI Subscribers and all other generally reachable (non-WNI
network) IP networks comprising the Internet. FASTNET will be responsible for
management of routing and performance of the provided transport from WNI's
customers through FASTNET's network connection to its carrier/ISP to insure
routing integrity and transport reliability. FASTNET will exercise all
reasonable efforts within its control to insure that the average round trip
latency (measured by ICMP echo tests between FASTNET and WNI) is less than 100
milliseconds. Further, FASTNET shall disclose to WNI the names and contact
information for the carrier(s) or ISP(s) through which it obtains Internet
backbone connectivity and/or packet exchange with other FASTNET/ISPs and the
interconnect location, routing arrangement and speed of such connection(s) in
order that WNI can adjust its connectivity and routing if needed to better
support FASTNET's transport obligation under the conditions of this paragraph.
Upon WNI's request, FASTNET shall also provide dedicated access into its network
for transport of WNI Subscriber traffic between FASTNET's network and WNI's
network and server computers. The communication path between FASTNET and WNI
may be by way of common carrier, competitive access provider, CLEC, ISP or some
combination. Terms for the implementation of such a solution shall be
negotiated at the time of WNI's request. FASTNET agrees to provide suitable
floor/rack space and inside termination of the communication circuit(s) with
appropriate environmental facilities (HVAC and power with UPS), a router and
communication interface (router interface and DSU/CSU, etc.) compatible with
WNI's facilities at the far end of the path. The connection and required
interfaces, at WNI's discretion, may be T-1 or fractional T-1 (with suitable
encoding and framing), DS-3 or fractional DS-3 (with Cisco HSSI router
interface) or Frame Relay, ATM (Asynchronous Transfer Mode) or SMDS at any
available speed. FASTNET and WNI will manage and be responsible for the
operation and maintenance of the equipment at their respective ends of the
communication path. FASTNET will cooperate with and accept guidance from WNI
for routing setup between the dedicated access path to WNI and the FASTNET's
other IP routes and shall permit WNI access to the SNMP MIB in the router at the
FASTNET end of the path for traffic and status monitoring and configuration
verification.
SCHEDULE D
LIST OF LOCAL ACCESS NUMBERS AND LOCATIONS
TO BE PROVIDED BY FASTNET
FASTNET EXCHANGES FOR WEB TV
(CONFIDENTIAL)
ALL NXX end with 9191
NPA-NXX
Rate Center Location NPA NXX
----------- -------- --- ---
Philadelphia Xxxx 0 Xxxxxxxxxxxx 000 000
Xxxxxxxxxxxx Xxxx 4 Philadelphia 215 268
Philadelphia Sub Zone 32 Flourtown 215 273
Philadelphia Sub Xxxx 00 Xxxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxxxxxxx-Xxxxxx Xxxx-Xxx 215 277
Philadelphia Sub Xxxx 00 Xxxxxxxxx-Xxxxxxxxxx Xxxxxx 215 344
Philadelphia Sub Xxxx 00 Xxxxxx Xxxxx 215 346
Philadelphia Sub Xxxx 00 Xxxxxxx 000 000
Philadelphia Sub Xxxx 00 Xxxxxxxxxxxx-Xxxxxxxxxxx 000 000
Xxxxxxxxxxxx Xxxx 1 Philadelphia 215 446
Philadelphia Sub Xxxx 00 Xxxxxxxxx-Xxxxxxxx Xxxxxxx 215 447
Philadelphia Sub Zone 42 Bristol 215 458
Philadelphia Sub Xxxx 00 Xxxxxxxxx 000 000
Xxxxxxxxxxxx Xxx Xxxx 44 Levittown 215 486
Philadelphia Sub Zone 45 Warrington 215 000
Xxxxx Xxxxx Xxxxx Xxxxx 215 583
Morrisville Morrisville 215 584
Doylestown Xxxxxxxxxx 000 000
Xxxxxxxxxxxx Xxxx 2 Philadelphia 215 000
Xxxxxxx Xxxxxxx 000 000
Xxxxxxxx Xxxxxxxx 000 000
Xxx Xxxx Xxx Xxxx 215 000
Xxxxxxxxxx Xxxxxxxxxx 215 000
Xxxxxxx Xxxxxxx 215 944
ATTACHMENT E
WEBTV NETWORKS, INC.
MUTUAL NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement ("Agreement") is made and entered into as of 8/28,
1997 by WebTV Networks, Inc., having its principal place of business at 000
Xxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (the "First Party") and You Tools
Corp. / FASTNET ("Second Party") with a principal place of business at 0000
Xxxxxxxx Xxxxxx, X-000, Xxxxxxxxx, XX 00000.
1. PURPOSE. The First Party and Second Party wish to explore a business
opportunity of mutual interest concerning each Party's business, operations,
proprietary technology, and products. In connection with this opportunity
certain trade secrets and business information proprietary to each Party and
which each Party considers Confidential Information (as defined below) may be
provided to one Party (the "Promisor") by the other Party (the "Discloser").
This Agreement is intended to allow both Parties to have open discussions
regarding Confidential Information, while still affording complete protection of
the Discloser's Confidential Information against disclosure or unauthorized use.
Written agreements regarding authorized disclosures or use of the Discloser's
Confidential Information may, but need not, be entered into between the Parties
in the future.
2. DEFINITION. "Confidential Information" means any Discloser proprietary
information relating to (i) the Discloser's proprietary technology and products,
including without limitation, technical data, trade secrets, know-how, research,
product plans, ideas or concepts, products, services, software, inventions,
patent applications, techniques, processes, developments, algorithms, formulas,
technology, designs, schematics, drawings, engineering, and hardware
configuration information (collectively, "Technical Information"), and (ii)
proprietary information relating to the Discloser's operations and business or
financial plans or strategies, including but not limited to customers, customer
lists, markets, financial statements and projections, product pricing and
marketing, financial or other strategic business plans or information
(collectively, "Business Information"), disclosed to Promisor by the Discloser,
either directly or indirectly, in writing, orally or by drawings or inspection
of samples, equipment or facilities. Confidential Information does not include
any of the foregoing items which (i) is known to Promisor at the time of the
disclosure to Promisor by the Discloser as evidenced by written records of
Promisor, (ii) has become publicly known and made generally available through no
wrongful act of Promisor, or (iii) has been rightfully received by Promisor from
a third party who is authorized to make such disclosures.
3. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Promisor agrees not to use any
Confidential Information disclosed to it by the Discloser for its own use or for
any purpose except to carry out discussion concerning, and the undertaking of,
any business
relationship between Promisor and the Discloser. Promisor will not disclose any
Confidential Information of the Discloser to third parties or to employees of
Promisor except to its employees who are required to have the information in
order to carry out the discussions of the contemplated business. Promisor will
have or has had its employees who have access to Confidential Information of the
Discloser sign a nondisclosure agreement in content substantially similar to
this Agreement and will promptly notify the Discloser in writing of the names of
each such employee upon the request of the Discloser at any time. Promisor
agrees that it will take all reasonable measures to protect the secrecy of and
avoid disclosure or use of Confidential Information of the Discloser in order to
prevent it from falling into the public domain or the possession of persons
other than those persons authorized hereunder to have any such Confidential
Information, which measures shall include the highest degree of care that
Promisor utilizes to protect its own Confidential Information of a similar
nature, but in any event not less than a reasonable degree of care. Promisor
agrees to notify the Discloser promptly in writing of any misuse or
misappropriation of Confidential Information of the Discloser which may come to
the Promissor's attention.
4. RETURN OF MATERIALS. Any materials or documents which have been furnished by
the Discloser to Promisor will be promptly returned to the Discloser,
accompanied by all copies of such documentation, after the business possibility
has been rejected or concluded, or at any time upon the Discloser's request. No
copies of the Discloser's Confidential Information may be made unless approved
in writing by the Discloser.
5. NO LICENSE. Nothing in this Agreement shall be construed as granting any
rights to Promisor under any patent or copyright, nor shall this Agreement be
construed to grant Promisor any rights in or to the Discloser's Confidential
Information, except the limited right to review such Confidential Information
solely for the purpose of determining whether to enter into the proposed
business relationship with the Discloser.
6. TERM. The foregoing commitments of Promisor shall survive any termination of
discussions between the Parties and shall continue (i) as to matters involving
"Business Information" for a period of three (3) years following the date of
this Agreement and (ii) as to Technical Information, until such Technical
Information is no longer required to be protected as set forth in the second
sentence of Paragraph 2 above.
7. MISCELLANEOUS. This Agreement shall be binding upon and for the benefit of
the undersigned Parties, their successors and assigns, provided that
Confidential Information of the Discloser may not be disclosed by means of any
assignment without the prior written consent of the Discloser. Failure to
enforce any provision of this Agreement shall not constitute a waiver of any
term hereof.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
California and enforced in accordance with the laws of the State of California.
The federal and state courts within the State of California, Northern District,
shall have exclusive jurisdiction to adjudicate any dispute arising with the
Agreement or any disclosure by the Discloser
of its Confidential Information to Promisor, and Promisor hereby consents to
such jurisdiction.
9. REMEDIES. Promisor agrees that the obligations of Promisor provided herein
are necessary and reasonable in order to protect the Discloser and its business,
and Promisor expressly agrees that monetary damages alone may be inadequate to
compensate the Discloser for any breach of Promisor of its covenants and
agreements set forth herein. Accordingly, Promisor agrees and acknowledges that
any such violation or threatened violation will cause irreparable injury to the
Discloser and that, in addition to any other remedies that may be available in
law, in equity, or otherwise, the Discloser shall be entitled to obtain
injunctive relief against the threatened breach of this Agreement or the
continuation of any such breach by Promisor without the necessity of proving
actual damages.
10. ENTIRE AGREEMENT. This document contains the entire Agreement between the
Parties with respect to the subject matter contained herein and supersedes any
previous understandings or commitments, oral or written.
First Party: Second Party:
WebTV Networks, Inc. You Tools Corporation / FASTNET
-------------------------------
Company
/s/ Xxxxx Xxxxx /s/ Xxxxx X. Xxx Xxxxx
------------------------------- -------------------------------
Signature Signature
Xxxxx Xxxxx Xxxxx X. Xxx Xxxxx
------------------------------- -------------------------------
Name (printed) Name (printed)
IAP Manager CEO
------------------------------- -------------------------------
Title Title
8/28/97 8/28/97
------------------------------- -------------------------------
Date Date
