1
EXHIBIT 10.4
MASTER SERVICES AGREEMENT
This Master Services Agreement (the "Agreement") is entered into as of
__________, ______ ("the Effective Date") between digitalNation - a VERIO
company --, Inc. ("digitalNATION - a VERIO company -"), and xxxxxxxxx.xxx
identified below ("Client"). For good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PURPOSE OF AGREEMENT. digitalNATION - a VERIO company - provides Internet
connectivity services (the "Bandwidth"), certain equipment used in Internet
connectivity services (the "Hardware"), space in its business premises to store
and operate such Hardware ("Space") and licensing of the associated operating
system and web server (the "Software"), together comprising a dedicated server
package (together the "Services"), digitalNATION - a VERIO company -- desires to
provide Services to Client, and Client desires to receive and compensate
digitalNATION - a VERIO company - for such Services.
2. SERVICE ORDERS.
2.1. Service Orders. The provision of Services pursuant to this Agreement shall
be Initiated by Service Orders ("Service Orders") issued by Client describing
the Bandwidth, Hardware, Space and Software that Client desires. Each Service
Order will contain the prices, initial terms of Services and other Information
designated in the Service order form. Client shall use the than current version
of the Service Order form as designated by digitalNATION -- a VERIO company --.
No Service Order shall be effective until accepted by digitalNATION -- a VERIO
company --. The terms of this Agreement and Service Orders shall control
Services to Client.
2.2. Termination. Client may terminate any Service Order by giving digitalNATION
at least 30 days written notice prior to the recurring billing date (as referred
to in Section 6.1) when Client desires Services to cease. If Client gives less
than 30 days notice then Client will be billed for Services until the first
recurring billing date which is at least 30 days after such notice.
digitalNATION -- a VERIO company - may terminate any Service Order by giving at
least 30 days prior written notice of the date of termination of Service. All
amounts due from Client for the account to which the Service Order relates must
be paid in order for Client to terminate a Service Order.
2.3. IP Addresses. digitalNATION - a VERIO company - may designate for Client's
use on a temporary basis a reasonable number of Internet protocol Addresses ("IP
Addresses") from the address space assigned to digitalNATION - a VERIO company -
by the Internic. Client acknowledges that the IP Addresses are the sole property
of digitalNATION - a VERIO company --, and are temporarily designated for
Client's use as part of the Services, and are not portable as such term is sued
by the Internic. digitalNATION - a VERIO company - reserves the right to change
the IP Address designations at any time. digitalNATION - a VERIO company - shall
use reasonable efforts to minimize inconvenience to Client resulting from such
changes, and shall give Client reasonable notice of changes. Client agrees that
it will have no right to use IP Addresses assigned to digitalNATION - a VERIO
company - upon termination of this Agreement, and that any change in IP
Addresses Client may need to make after termination of this Agreement shall be
the sole responsibility of Client.
2
3. SOFTWARE LICENSE AND RIGHTS
3.1. Operating System and Web Server Software License. During the term of a
Service Order, digitalNATION - a VERIO company - grants Client a
non-transferable, nonexclusive license to use the Software, in object code form
only, for its internal needs, to be used solely on the Hardware provided, and
solely in conjunction with the Services.
3.2. Software License Restrictions. Client agrees that it will not, directly or
indirectly (and it will not allow others to):
3.2.1. copy the Software, except as in necessary to install on Hardware
and for internal, archival purposes. In the event Client makes any copies of
Software, Client shall reproduce all property notices on such copies;
3.2.2. reverse engineer, decompile, disassemble, modify or otherwise
attempt to derive source code from the Software;
3.2.3. sell, lease, license, transfer, give possession of, or
sublicense the Software or the documentation to others;
3.2.4. write or develop any derivative or other software programs,
based, in whole or in part, upon the software or any Confidential Information
(as defined in Section 9).
3.3. Proprietary Rights. Client shall not have any right, title, or interest in
the Software, hardware, documentation, or any copyrights, patents or trademarks,
embodied or used in connection therewith, except for the limited license to use
provided in Sections 3.1 and 3.2.
4. SERVICE INTERRUPTIONS. During the term of a Service Order, Client shall have
a Performance Guarantee for its servers, which is stated at
xxxx://xxx.xxxxxxxxxxxxxxx.xxx/xxxxxxx/xxxxxxxxx.xxx0, and is incorporated here
by reference. Other than as provided for the Performance Guarantee,
digitalNATION shall not be liable for failure or delay in performing its
obligations hereunder if such failure or delay is due to circumstances beyond
its reasonable control, including, without limitation, acts of any governmental
body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, unavailability of
interruption or delay in telecommunications or third party services, failure of
third party software or inability to obtain raw materials, supplies, or power
used in or equipment needed for provision of the Services.
5. USER CONTENT AND CONDUCT. Client is solely responsible for the content of any
postings, data or transmissions using the Services (the "Content"), or any other
use of the Services by Client or by any person or entity Client permits to
access the Services (a "User"). Client represents and warrants that neither it
nor any User will use the services for unlawful purposes (including, without
limitation, infringement of copyright or trademark, misappropriation of trade
secrets, wire fraud, invasion of privacy, pornography, obscenity, defamation,
and illegal use, transportation or sale of tobacco, controlled substances and
firearms), or to interfere with, or disrupt, other network users, network
services or network equipment. Disruptions include, without limitation,
distribution of unsolicited advertising or chain letters, repeated harassment of
other network users, wrongly Impersonating another user, falsifying one's
network identity for improper, or illegal purposes, sending unsolicited mass
e-mailings, propagation of computer viruses, and using the network to make
unauthorized entry to any other machine accessible location, via the network.
digitalNATION - a VERIO company may suspend or terminate Services immediately,
without prior notice to Client. If digitalNATION - a VERIO company - believes,
in good faith, that Client or a User is utilizing the Services for any such
illegal or disruptive purpose. Client shall defend, indemnify, and hold harmless
digitalNATION - a VERIO company - from and against all liabilities, judgments,
claims, damages, settlements, expenses and costs (including reasonable
attorneys' fees and litigation expenses) arising out of or relating to any and
all claims by any person relating to use of the Services, including, but not
limited to, use of the Services without consent of the Client.
3
6. PRICING AND PAYMENT TERMS.
6.1. Payment Terms. The full amount of the Initial Cost as reflected in the
Service Order, plus charges for the first billing period of Services, are due
and payable to digitalNATION - a VERIO company - upon the acceptance of the
Service Order. Thereafter, Client will pay in advance charges for each billing
period. The recurring billing date shall be THE DATE THAT THE SERVER RELEASE
NOTIFICATION IS E-MAILED OR FACES TO THE client. For accounts that are paid by
credit card, Client authorizes digitalNATION - a VERIO company - to charge
recurring billing on the recurring billing date, until Client gives written
notice otherwise to digitalNATION - a VERIO company - or until the expiration or
termination of a Service Order. Accounts that pay by check (limited to U.S. bank
checks) will be faxed and mailed an invoice on the recurring billing date and
payment is due immediately. digitalNATION - a VERIO company - will impose a
charge for any check or other instrument which is returned for any reason by a
financial institution. digitalNATION - a VERIO company - reserves the right to
charge Client any sales, use, excise, and ad valorem, gross receipts, or any
other tax or fees now or imposed, directly or indirectly, by any governmental
authority or agency with respect to the Services.
6.2. Pricing Disputes. Client must notify digitalNATION - a VERIO company - in
writing of any disputed charges within 60 days of the date of the billing for
such charges. If Client does not notify digitalNATION - a VERIO company - within
that time period, Client has waived any right to dispute such amounts, either
directly or as a set-off, recoupment or defense in any action or efforts to
collect amounts due to digitalNATION - a VERIO company --.
6.3. Collection. All accounts more than 30 days past due will e charged interest
from the due date of the lesser of (i) 2%per month on the past due amount; or
(ii) the highest legal rate of interest. digitalNATION - a VERIO company - may
suspend, interrupt, or terminate Services on any account that is past due by
more than thirty (30) calendar days, by disabling telnet/ftp access and/or
disabling the connection to the server. In the event of disconnection, Client
must pay digitalNATION - a VERIO company - a telnet disable fee of $50.00 or a
disconnection fee of $150.00 reinstatement fee as a condition of reactivation of
the Services, in addition to full payment of the balance due on the account.
Reactivation of service will only be performed during digitalNATION - a VERIO
company -'s regular business hours (Monday through Friday, 9:00 a.m. to 6:00
p.m.. Eastern Time). All accounts that have been paid in full may be sent by
digitalNATION - a VERIO company - to a collection agency. The Client is
responsible for paying all costs of collection, including, but not limited to
reasonable attorneys' fees and, where lawful, collection agency fees. All
accounting issues should be addressed to digitalNATION - a VERIO company -- at
xxxxxxxxxx@xx.xxx
6.4. Price Increases. digitalNATION - a VERIO company - shall not increase the
prices for Services during the initial term of any Service Order, but may
thereafter change prices. digitalNation - a VERIO company - will give Client
thirty (30) days written notice prior to increasing the prices for Services.
7. MAINTENANCE AND SUPPORT.
7.1. Ordering Maintenance and Support Services. digitalNATION - a VERIO company
- shall provide Client with maintenance and support services for the Hardware or
Software. If such services are specified in the Service Order.
7.2. Exclusions. Maintenance and support services shall not include services for
problems arising out of (a) tampering, modification, alteration, or addition to
the Hardware or Software, which is undertaken by persons other than
digitalNATION - a VERIO company - or its authorized representatives; or (b)
programs or hardware supplied by Client.
7.3. Client's Duties. Client shall document and promptly report all errors or
malfunctions of the Hardware or Software to digitalNATION - a VERIO company --.
Client shall take all steps necessary to carry out procedures for the
rectification of errors or malfunctions within a reasonable time after such
procedures have been received from digitalNATION - a VERIO company --. Client
shall maintain a current archive copy of all Software and data. Client shall
property train its personnel in the use of the hardware and Software.
4
8. TERM AND TERMINATION.
8.1. Term. The term of this Agreement shall commence on the Effective Date and
continue until terminated in accordance with this Agreement. The term of a
Service order shall be as indicated therein. The term of a Service Order shall
automatically renew unless either party provides the other with written notice
of termination one month prior to the renewal date reflected in the Service
Order.
8.2. Termination Upon Default. As referred to in Section 6.1, digitalNATION - a
VERIO company - may immediately terminate this Agreement and any or all Service
Orders, within its sole discretion, if Client fails to pay (and digitalNATION -
a VERIO company - has not actually received) any amounts due within fifteen (15)
days after the due date. For other breaches of this Agreement, either party may
terminate this Agreement, and Service Orders, as applicable, if the breaching
party fails to correct the default within fifteen (15) days after written
notice.
8.3. Effect of Termination. Notwithstanding termination of this Agreement and
Service Orders, digitalNATION - a VERIO company - shall be entitled to payment
in full of all amounts that may be due to it from Client. In addition, Sections
2.3, 3.1, 3.2, 3.3, 5, 9, 10, 11, 12, and 13 shall survive termination of this
Agreement and Service Orders. All other rights and obligations of the parties
shall cease upon termination of this Agreement. The term of any license granted
hereunder shall expire upon expiration or termination of this Agreement.
9. CONFIDENTIAL INFORMATION. Confidential Information shall mean all information
identified by a party ("Disclosing Party") to the other party ("Receiving
Party"), which, if in writing labeled as confidential, or if disclosed orally,
is reduce to writing within fifteen (15) days, and labeled as confidential.
Confidential Information shall remain the sole property of the Disclosing Party.
Except for the specific rights granted by this Agreement, the Receiving Party
shall not use any confidential Information of Disclosing Party for its own
benefit or for the benefit of others. Receiving Party shall not disclose
Confidential Information to any third party without the written consent of
Disclosing Party (except to consultants who are bound by a written agreement
with Receiving Party to maintain confidentiality). Confidential Information
shall exclude information (i) available to the public other than by a breach of
this Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving Party
without access to Confidential information; (iv) known to Receiving Party at the
time of disclosure; or (v) produced in compliance with a court order. Receiving
Party shall give reasonable notice to Disclosing Party that Confidential
Information is being sought by a third person, so as to afford an opportunity to
limit or prevent such disclosure. Receiving Party agrees to cease using all
Confidential Information, and to promptly return such Confidential Information
to Disclosing Party upon request. Notwithstanding the foregoing, Client consents
to digitalNATION - a VERIO company -'s disclosure of account information to
credit reporting agencies, credit bureaus, private credit reporting
associations, or to other providers of communications services.
10. LIMITATION OF LIABILITY. digitalNATION - a VERIO company -'S liability
(including, for purposes of this paragraph only, any of it employees, agents, or
representatives), to Client (either directly or as a third party defendant in
any action or proceeding) for any claim arising out of or relating to this
Agreement or Service Orders or the provision of any Services under Service
Orders (including, without limitation maintenance and support) shall be limited
to the amount of fees paid by Client to digitalNATION - a VERIO company - under
this Agreement within one year preceding the date Client contends its claim
arose. In no event shall digitalNATION a VERIO company - be liable for any loss
of data, loss of profits, cost of cover, or any other special, incidental,
consequential, indirect or punitive damages, however caused and regardless of
theory of liability. This limitation will apply even if digitalNATION - a VERIO
company - has been advised of, or is aware of, the possibility of such damages.
11. DISCLAIMER OF WARRANTIES. digitalNATION - a VERIO company - specifically
dislcaims all implied warranties, including but not limited to, the implied
warranties of merchantability and fitness for a particular purpose. Except as
otherwise provided in this Agreement, any written materials by digitalNATION--a
VERIO company -, or information on digitalNATION - a VERIO company -'s web site,
shall be for informational purposes
5
only and, whether delivered or disseminated before or after the date of this
Agreement, shall not create any express or implied warranties, guaranty of
performance, or contractual obligations.
12. MISCELLANEOUS.
12.1. Independent Contractor. The relationship of digitalNATION - a VERIO
company - and client under this Agreement is that of independent contractors and
not partners, joint ventures, or co-owners as participants. Neither party has
authority to contract for or bind the other.
12.2. Notices. Any notice hereunder shall be in writing and shall be given by
registered, certified or Express mail, or reliable overnight courier (such as
FedEx) addressed to the addresses in this Agreement, or by facsimile. Notice
shall be deemed to be given upon the earlier of actual receipt or three (3) days
after it has been sent, properly addressed and with postage prepaid. Either
party may change its address for notice by means of notice to the other party
given in accordance with this Section.
12.3. Assignment. Client may not assign this Agreement, in whole or in part,
either voluntarily or by operation of law, and any attempt to do so shall be
void and a default of this Agreement.
12.4. Governing Law and Forum. This Agreement shall be governed and interpreted
according to the internal laws of the Commonwealth of Virginia, excluding choice
of law provisions. For all disputed arising out of or related to this Agreement
or Service Orders, the parties Irrevocably consent to the exclusive jurisdiction
of the Circuit Court of Fairfax County and the United States District Court for
the Eastern District of Virginia, Alexandria Division, ALL SUCH ACTIONS WILL BE
TRIED BY THE COURT SITTING WITHOUT A JURY AND THE PARTIES IRREVOCABLY WAIVE
THEIR RIGHTS TO TRIAL BY JURY. Client's address for purposes of service of
process shall be the address designated for notices in this Agreement. In
connection with all actions in which digitalNATION - a VERIO company - is
awarded amounts due from Client, digitalNATION - a VERIO company - shall be
awarded (either in that action or by way of a separate action) its costs and
expenses of litigation (including reasonable attorneys' fees), through trial and
appeal.
12.5. Advertising. digitalNATION - a VERIO company - may include Client's name
and contact information in the directories of digitalNATION - a VERIO company -
services subscribers for the purpose of promoting the use of the Services by
clients generally. digitalNATION - a VERIO company - will not use Client's name
or other identifying information in any other advertising or promotional
materials, without the prior written consent of Client, which may not be
unreasonably withheld.
12.6. Indemnification. Client shall defend, indemnify, and hold harmless
digitalNATION - a VERIO company from and against all liabilities, judgments,
claims, damages, settlements, expenses and costs (including reasonable
attorneys' fees and litigation expenses) arising out of or relating to any
breach of this Agreement or Service Orders by Client. Client and digitalNATION -
a VERIO company - will promptly notify each other upon receipt of any third
party claim or legal action arising out of or relating to this Agreement or
Service Orders.
12.7. Entire Agreement and Waiver. This Agreement and the Service Orders,
constitute the entire agreement between digitalNATION - a VERIO company - and
Client with respect to the subject matter hereof. All prior agreements,
representations, and statements with respect to such subject matter are
superseded. Any failure of either party to exercise or enforce its rights under
this Agreement or Service Orders shall not act as a waiver of subsequent
breaches.
12.8. Severability. In the event any provision of this Agreement is determined
to be unenforceable in full, that provision will be enforces to the maximum
extent permissile under applicable law, and the other provisions of this
Agreement will remain in full force and effect.
6
12.9. Non-Solicitation. During the term of this Agreement and for a period of
one (1) year thereafter, Client shall not solicit or hire the services of any
employee or subcontractor of digitalNATION - a VERIO company --, without the
prior written consent of digitalNATION - a VERIO company --.
12.10. Substitution. digitalNATION - a VERIO company - may substitute, change or
modify the Software or Hardware at any time, but shall not thereby substantially
after the technical parameters of the Services.
13. MODIFICATIONS. This Agreement may be modified only by a further writing,
executed by both parties. This Agreement contains no special provisions, except
those written below (if none, write "NONE"):
--------------------------------------------------------------------
--------------------------------------------------------------------
14. NOTICES. All notices hereunder shall be given at the following addresses:
digitalNATION - a VERIO company -- : 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Accounting
Fax: (000)000-0000
Client: Xxxxxxxxx.xxx
0000 X. 00xx Xx.
Boulder, 80301
Xxxx X. Xxx
Attention: (000) 000-0000
Fax: (000) 000-0000
15. CLIENT CONTACTS. Client authorizes these specific individucals to act on its
behalf in connection with the matters listed. digitalNATION - a VERIO company -
will not take any direction from individuals not listed here. PLEASE PRINT
CLEARLY.
AUTHORIZED TECHNICAL CONTACT
Name: Xxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------
Phone: (000) 000-0000 pager Fax: (000) 000-0000
------------------------------------------------- ----------------------------------------
Email:
---------------------------------------------------------------------------------------------------
AUTHORIZED PERSONNEL
Please list three contacts authorized by Client to make changes to the Services
with digitalNATION - a VERIO company -- :
Name: Xxxx X. Xxx
---------------------------------------------------------------------------------------------------
Phone: (000) 000-0000 Fax: 000 000-0000
------------------------------------------------- ----------------------------------------
Email: xxx.Xxxx0@xxx.xxx
---------------------------------------------------------------------------------------------------
Name: Xx. Xxxxx Xxxxxxxx Xx.
---------------------------------------------------------------------------------------------------
Phone: (000) 000-0000 Fax: (000) 000-0000
------------------------------------------------- ----------------------------------------
Email: xxx.XXX0000@XXXXX.xxx
---------------------------------------------------------------------------------------------------
7
Name:
---------------------------------------------------------------------------------------------------
Phone: Fax:
------------------------------------------------- ----------------------------------------
Email:
---------------------------------------------------------------------------------------------------
ACCOUNTS PAYABLE CONTACT:
Name: Xxxx X. Xxx
---------------------------------------------------------------------------------------------------
Phone: (000) 000-0000 Fax: (000) 000-0000
------------------------------------------------- ----------------------------------------
Email: xxx.xxxx0@xxx.xxx
---------------------------------------------------------------------------------------------------
Billing Address of Client:
Xxxxxxxxx.xxx
0000 X. 00xx Xx.
Xxxxxxx, 00000
Xxxx X. Xxx
Xxxx@xxxxxxxxx.xxx
Fed Tax ID: 00-0000000
SSN (if no Fed Tax number:)
----------------------------
CLIENT:
Xxxx X. Xxx
-----------------------
Name
By: /s/ Xxxx X. Xxx
Its: Vice-President
Date: 11-10-99
