Exhibit 10.1
Confidential treatment has been requested for portions of this exhibit. The
confidential portions have been redacted and are denoted by [*]. The
confidential portions have been filed separately with the Securities and
Exchange Commission.
ZIPLINK, INC.
ZIPDIAL CONTRACT
COMPANY CONFIDENTIAL
THIS AGREEMENT, dated as of this day of January 12, 2000 by and between
ZIPLINK, Inc., a Delaware corporation (hereinafter referred to as "ZIPLINK")
with its principal business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Spin
Media Network, Inc. d/b/a ▇▇▇▇▇▇▇.▇▇▇, a California corporation (hereinafter
referred to as "Reseller") with its principal business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WITNESSETH
WHEREAS, ZIPLINK provides Internet access and related communication
services all as more particularly described in SCHEDULE I (the
"ZIPLINK Services"); and
WHEREAS, Reseller wishes to obtain from ZIPLINK the non-exclusive right
to resell to its subscribers ("Reseller's Subscribers") ZIPLINK's
Services on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. TERM
A. The initial term of this Agreement shall be one (1) year from the
date first above written and this Agreement may be renewed for
additional one (1) year terms, "Renewal Period", upon written
notice by Reseller at least 90 days prior to the expiration of the
then-current term of its intention to renew this Agreement. At the
option of the Reseller, this Agreement may be terminated up to 90
days from the commencement of the Agreement.
B. Thereafter, the Agreement shall remain in full force and effect
for its entire term and any extensions thereof, unless terminated
as defined in Section 7 or as defined in other sections as
applicable.
2. ZIPLINK RESPONSIBILITIES
ZIPLINK agrees to provide Reseller and Reseller's Subscribers with
those ZIPLINK Services on SCHEDULE I. Reseller acknowledges that from
time to time hereafter ZIPLINK may make network software or hardware
enhancements leading to specific service additions or deletions with
respect to the ZIPLINK Services including the addition, limitation or
temporary closing of points of presence. ZIPLINK will provide written
notification to Reseller in the event of material adverse change to the
ZIPLINK Services and in such event Reseller, after reasonable notice
and providing a thirty (30) day opportunity to cure to ZIPLINK may
terminate the Agreement without penalty.
A. ZIPLINK will provide Reseller with a monthly statement identifying
the charges and fees for ZIPLINK Services then in effect with
respect thereto.
B. ZIPLINK will assign an account manager who will be responsible for
communication with Reseller with respect to network operability,
enhancements and other modifications that have a material impact
on Reseller's Subscribers' use of ZIPLINK Services.
C. Expansion Requests: Should Reseller require local access in a
specific area that is currently unavailable via the ZipDial
Network, Reseller may submit a written request to ZIPLINK asking
to explore the ramifications attributed to the expansion and or
build-out of the ZipDial Network to a New Location. Upon receipt
of Reseller Expansion Request, ZIPLINK will make commercially
reasonable efforts to (a) review Reseller's request, and (b)
provide Reseller feedback regarding the feasibility of the request
within five (5) business days of such request, and (c) provide
Reseller contractual documentation (i.e. Service Quotation,
Estimated Timelines, Amendment, Addendum) outlining the commitment
and applicable pricing required to expand to the New Location for
Reseller's review.
D. ZIPLINK, its officers, directors, employees and any authorized
sub-licensee will (i) conduct their business in an honest,
professional and ethical manner and (ii) not knowingly or through
gross negligence commit any action or omission to act which could
adversely affect Reseller, its name, reputation or ability to
conduct its business.
3. RESELLER RESPONSIBILITIES
A. Reseller shall require each Subscriber to agree to an Acceptable
Use Policy that is consistent and material to terms set forth on
SCHEDULE II hereto. In the event that ZIPLINK determines in its
sole discretion that any of Reseller's Subscribers is engaged in
material abuse or disregard of the acceptable use policy set forth
on SCHEDULE II, ZIPLINK may, after reasonable notice to Reseller
and providing Reseller twenty (20) day opportunity to cure (except
as to "spamming" which shall be limited to 24 hour notice and an
obligation to immediately cure), terminate the provision of
ZIPLINK Services to such Reseller Subscriber(s). ZIPLINK shall
promptly notify Reseller of any such termination of services, and
such termination of ZIPLINK Services shall constitute ZIPLINK's
sole and exclusive remedy for any breach of any applicable
Acceptable Use Policy by a Reseller Subscriber.
B. Reseller will be solely responsible for all sales, equipment,
services and subscriber support to Reseller's Subscribers.
C. Except as provided under this Agreement, Reseller shall not make
any warranties, express or implied, with regard to ZIPLINK Services
to any third party and specifically agrees it shall make no such
warranties to any Reseller Subscriber.
D. Reseller, its officers, directors, employees and any authorized
sub-licensee will (i) conduct their business in an honest,
professional and ethical manner and (ii) not knowingly or through
gross negligence commit any action or omission to act which could
adversely affect ZIPLINK, its name, reputation or ability to
conduct its business.
E. Reseller will not permit ZIPLINK Services to be resold by any other
party without the express written permission of ZIPLINK.
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4. COMPENSATION
A. Subject to paragraph 4.B. and 4.C. below, Reseller shall pay to
ZIPLINK the rates and fees for ZIPLINK Services set forth in
SCHEDULE I ATTACHED hereto. Upon sixty (60) day written notice to
Reseller, ZIPLINK may modify any rate or fee set forth in SCHEDULE
I ATTACHED HERETO; provided that such modified rates or fees shall
not be effective with respect to any of Reseller's Subscribers then
receiving ZIPLINK Services affected thereby for a period equal to
the lesser of (a) the remaining term of this Agreement, or (b) six
months after the date of such notice. In addition, Reseller may
without penalty terminate this Agreement pursuant to its applicable
provisions with 60 day written notice to ZIPLINK if the modified
rates or fees are greater than 5% of the prior rates charged to
Reseller. Following notice from Reseller to terminate this
Agreement per this section, Reseller's fees for the remainder of
the notice period will remain at the then current rate charged by
ZIPLINK to Reseller. Notwithstanding anything to the contrary
herein, should rates decrease Reseller's existing Subscribers will
be afforded the decreased rates afforded new subscribers of the
Reseller. Reseller's obligation to pay ZIPLINK under this Paragraph
4.A. is not in any way contingent upon Reseller's collections from
Reseller's Subscriber.
B. Notwithstanding Paragraph 4A, if any provider of telephony or
Internet services to ZIPLINK which are used in connection with
ZIPLINK Services increases the cost of such services, ZIPLINK may
increase its service charges to reflect such increase. ZIPLINK will
provide Reseller not less than sixty (60) day written notice prior
to any such rate increases to Reseller. In the event such increase
is greater than 5% of the prior rate, Reseller may without penalty
terminate this Agreement under its applicable provisions with 60
day written notice to ZIPLINK. Following notice from Reseller to
terminate this Agreement per this section, Reseller's fees for the
remainder of the notice period will remain at the then current rate
charged by ZIPLINK to Reseller.
C. Reseller shall be responsible for any federal, state or local tax,
fee or surcharge upon the products or services covered by this
Agreement other than on the income of ZIPLINK.
5. BILLING
A. ZIPLINK shall provide invoices to Reseller monthly setting forth
all rates, fees or other charges due pursuant to this Agreement.
Reseller agrees to pay the full-undisputed amount reflected on each
invoice to ZIPLINK by no later than 30 days after the receipt
thereof. Reseller shall define "Past Due" as after 30 days
from receipt of invoice.
B. Any undisputed amounts remaining unpaid 30 days past
Reseller's receipt of the invoice shall accrue interest at the
lesser of one percent (1%) per month or the maximum rate allowed by
law for such interest charges.
C. In the event Reseller disputes any charges, Reseller shall use
commercially reasonable efforts to fully detail in written notice
its basis for dispute within fifteen (15) days of receipt of any
such disputed invoice. Both parties agree to assign to a person of
at least a Vice President level any dispute for mediation of
amounts not resolved by mutual agreement within 30 days of
Reseller's notification of such a dispute so that the issues may be
finally resolved. If the parties are unable to resolve a billing
dispute within sixty (60) days from the due date, either party may
then invoke the arbitration provisions of Section 19.
6. ADVERTISING AND PROMOTION
Neither party shall use the other party's name or logo or refer to such
party in any advertising, marketing, or sales presentation to any other
person, release to any professional or trade publication or for any
other purpose without such party's prior written approval, provided
that either party may use the other party's name or logo, or both, in a
list of such party's customers or providers, if such use does not imply
endorsement. Either party shall be allowed to issue press releases and
public announcements regarding this Agreement with the other party's
prior written approval which shall not be unreasonably withheld or
delayed.
7. DEFAULT
A. Each of the following events shall constitute a default hereunder:
(i) Failure to make any undisputed payment when due according to
the applicable provisions of this Agreement;
(ii) Insolvency, assignment for the benefit of creditors,
appointment or sufferance of appointment of a trustee, a
receiver or similar officer, or commencement of a proceeding
seeking reorganization, rehabilitation, liquidation or
similar relief under the bankruptcy, insolvency or similar
debtor-relief statutes; or
(iii) Material failure to observe or perform any of the covenants
contained in this Agreement or in any other Agreement or
document executed pursuant hereto; or
(iv) Unsolicited advertising ("spamming") via email, newsgroup
posting, or cross-posting may result in termination of
service pursuant to Section 3A to the offending Reseller
Subscriber should Reseller fail to institute appropriate
restrictions within 24 hours from notice to Reseller to
curtail future spamming incidents by the Reseller's
Subscriber.
C. In the event either party shall be in default of its obligations
under this Agreement, the party not in default shall have the right
to terminate this Agreement (i) in twenty (20) days from the "Past
Due" date and upon Reseller's receipt of written notice in the case
of a default in payment (ii) in all other cases, if the defaulting
party fails to cure such default within thirty (30) days of
receiving written notice thereof. Notwithstanding any statement to
the contrary above, with respect to an incident of spamming by
Reseller's Subscribers ZIPLINK may at its sole option, but after 24
hour notice to Reseller, terminate ZIPLINK Services to Reseller's
offending Subscriber(s) pursuant to Section 3A.
D. The following sections shall survive any termination or expiration
of this Agreement: 3(B), 3(C), 3(E), 4(A), 4(C), 5, 6, 7, 8, 9, 10,
11, 12, 13, 14, 16, 17, 19, 20 and, all related schedules thereto.
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8. ASSIGNMENT
This Agreement shall be binding upon the parties and their respective
successors and assigns; provided, however, that no rights or
obligations hereunder, including but not limited to Reseller's
Subscriber accounts, shall be assigned or transferred, in whole or in
part, by either of the parties hereto to any person, firm or
corporation without prior written consent by the other party, which
consent shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, Reseller may assign this Agreement, without the prior
consent of the other party, to any person, partnership, firm or
corporation affiliated by common ownership with the assigning party,
acquiring all or substantially all of such party's assets.
9. LIMITATION OF LIABILITY AND WARRANTIES
A. ZIPLINK hereby represents and warrants to Reseller that neither
the ZIPLINK Services, nor the use of such ZIPLINK Services by
Reseller or Reseller's Subscribers shall infringe any worldwide
patent, copyright, trademark, trade secret or other intellectual
property or proprietary right of any third party.
B. Other than as set forth in the last sentence of this paragraph,
ZIPLINK shall not be responsible for any damage suffered by
Reseller or Reseller's Subscribers as a result of any interruption,
termination or other failure or cessation of ZIPLINK Services,
including loss of data, whether or not caused by ZIPLINK's
negligence. Use of any information obtained via ZIPLINK Services is
at Reseller's and Reseller's Subscribers' own risk and ZIPLINK
cannot guarantee the accuracy or security of any such content.
ZIPLINK specifically disclaims responsibility for the accuracy or
quality of the information obtained through ZIPLINK Services.
Reseller further agrees that ZIPLINK shall not be liable for any
special, incidental, indirect, punitive or consequential damages or
for lost profits, business or revenues, arising out of, or in
connection with, this Agreement or the services provided hereunder,
whether suffered by Reseller, any of Reseller's Subscribers or any
party claiming rights derived therefrom, even if ZIPLINK shall have
been advised in advance of the possibility of such potential loss
or damage. In no event shall ZIPLINK's aggregate liability with
respect to Reseller or Reseller's Subscriber exceed the amount of
all fees and charges actually paid respectively by Reseller or its
Subscriber to ZIPLINK in respect thereof for the twelve (12) month
period immediately prior to ZIPLINK's actions giving rise to such
damages.
C. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 9 AND
SECTION 20, EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE
OTHER PARTY "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING
WITHOUT LIMITATION, ANY WARRANTIES (EXPRESS, IMPLIED, OR STATUTORY)
OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE.
D. NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION ON LIABILITY SHALL NOT EXCUSE RESELLER OF ITS
PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
E. Reseller will indemnify and hold ZIPLINK, its agents, successors,
affiliates, suppliers and assigns free and harmless from any and
all obligations, costs, expenses, claims, judgments, attorneys'
fees and attachments arising from, growing out of, or in any way
connected with, a) any breach by Reseller of its Subscriber
Agreements, (b) any use of ZIPLINK Services by any of Reseller's
Subscribers throughout its chain of distribution, including any
claims relating to the quality or functionality of ZIPLINK
Services.
F. Both parties to this Agreement will indemnify and hold each other
free and harmless from any and all obligations, costs, expenses,
claims, judgments, attorneys' fee and attachments arising from,
growing out of, or in any way connected with any breach of the
express warranties contained in this Agreement, or any third party
claims that any product services, marks, software, or software
provided by ZIPLINK infringe any copyright, patent, trade secret,
trademark or any other proprietary right of any third party or
violates any application law or regulation. Provided, however, that
the party seeking indemnification shall: (a) promptly notify the
other party in writing of the claim, (b) provide to the other party
all reasonably requested assistance in the defense of such a claim,
and (c) shall grant the other party sole control of the litigation
and any settlement negotiations related thereto, provided that no
settlement may be entered into by the other party without the prior
written consent of the party seeking indemnification.
G. ZIPLINK shall not be liable for delays or failure to deliver or
perform due to acts of God, acts of the other party, acts of civil
or military authorities, fires, strikes, floods, or other similar
events beyond its control. Reseller shall not be liable for any
penalties or payments for services not received by ZIPLINK. In the
event that of a situation as defined here lasts longer that ten
(10) days, Reseller may terminate the Agreement without penalty.
10. ENTIRE AGREEMENT
The parties have read this Agreement and all of its Schedules, Exhibits
and attachments and agree to be bound by its terms, and further agree
that it constitutes the complete statement of the Agreement between
them which supersedes all other Agreements, covenants, representations
or proposals, oral or written, and all other communications between
them relating to the subject matter of this Agreement. In the event of
a conflict between the terms and conditions of this Agreement and any
Amendments to this Agreement, the terms and conditions of the
Amendment(s) shall prevail. In the event of a conflict between the
terms and conditions of this Agreement and any Schedules to this
Agreement, the terms and conditions of this Agreement shall prevail.
11. ALL AMENDMENTS IN WRITING
This Agreement may not be changed or modified except by a written
Agreement, executed on behalf of both parties.
12. RELATIONSHIP OF THE PARTIES
The parties hereto are independent contractors and shall not be deemed
co-ventures, partners, fiduciaries or agents of one another. Neither
party is authorized to act as an agent for, or legal representative of,
the other party nor shall either party have
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authority to assume or create any obligation on behalf of, or binding
upon, the other party. Reseller shall not represent itself as an agent
of ZIPLINK.
13. CONFIDENTIALITY
A. Each party acknowledges that, during the term of this Agreement, it
will be provided with confidential information relating to the
business policies and procedures and products of the other party.
For the purposes of this Agreement, "Confidential Information"
shall mean any confidential or proprietary information of either
party, including information related to the Intellectual Property
of either party, and any other information relating to any
composition, research project, working process, future development,
scientific, engineering, manufacturing, marketing, business plan,
financial or personnel matter relating to either party, its present
of future products, sales, suppliers, customers, employees,
investors or business, whether in written, graphic or electronic
form, which is marked by the disclosing party as "confidential" or
"proprietary". If disclosed in oral form, such information must be
reduced to writing and marked as "confidential" or "proprietary"
within thirty (30) days of such oral disclosure. Confidential
Information shall not include any information which the receiving
party can prove by competent evidence: (i) is now, or hereafter
becomes, through no act or failure to act on the part of the
receiving party, generally known or available; (ii) is known by the
receiving party at the time of receiving such information, as
evidenced by its records; (iii) is hereafter furnished to the
receiving party by a third party, as a matter of right and without
restriction on disclosure; (iv) is independently developed by the
receiving party without the aid, application or use of information
of the other party; or (v) is the subject of a written permission
to disclose provided by the disclosing party.
B. Other than the existence of this Agreement, no party shall disclose
the terms of this Agreement, including the fees and charges set
forth herein, except for disclosure in confidence to its employees,
consultants, accountants, attorneys, bankers, investors, potential
investors, or as required by law.
C. All Confidential Information that is disclosed by the disclosing
party, and received by the receiving party, shall remain in strict
confidence throughout the terms of the Agreement. The receiving
party shall hold confidential information in confidence, and shall
not disclose any Confidential Information to anyone, inside or
outside of the receiving party, except those employees, directors,
contractors or affiliates (and their respective employees) of the
receiving party who have a need to know the Confidential
Information to effect the use permitted hereby, and where such
individuals are bound by confidentiality provisions substantially
similar to those contained herein. Each party shall treat all
Confidential Information with the same degree of care as the party
accords to its own Confidential Information, but in no case less
than reasonable care.
D. No license to any patent, trademark, copyright or other proprietary
rights are granted hereby. The receiving party's use of
Confidential Information shall remain in effect throughout the
terms of the Agreement and all Confidential Information shall
remain the property of the disclosing party.
E. All information disclosed or made available to the receiving party
by the disclosing party shall be deemed to be Confidential
Information, unless otherwise agreed in writing by the disclosing
party, except that the obligations of this Agreement shall not
apply to information which: (a) becomes publicly known through no
fault of the receiving party; or (b) was or becomes rightfully
known to the receiving party without confidential or proprietary
information restriction from source other than the disclosing
party; or (c) is approved by the disclosing party for disclosure
without restriction in a written document which is signed by a duly
authorized officer of the disclosing party; or (d) is independently
developed by the receiving party without use of the Confidential
Information; or (e) is required to be disclosed under operation of
law, by court order, or governmental regulation and the receiving
party provides prompt written notice to the disclosing party of
such disclosure requirement.
14. NOTICES
Except as otherwise provided in this Agreement, all notices required or
permitted to be given to any party shall be in writing and shall be
deemed to have been duly given after five (5) business days if sent by
certified mail, postage prepaid, in any post office in the United
States, where receipt thereof is confirmed, or if sent by confirmed
receipt of facsimile or by confirmed receipt of a nationally recognized
overnight delivery service to such party at the address set forth below
or to such other address as has been designated by the other party in
accordance with this Section.
15. NON-CONFLICT
ZIPLINK and Reseller warrant that no obligation provided for herein is
in conflict with any other contractual obligation with any third party.
16. BINDING EFFECT
This Agreement and the rights and obligations of the parties shall
inure to the benefit of and be binding upon any successor or assignee
and any subsidiary, affiliate, agent, Reseller or related entity.
17. SEVERABILITY
Should any part of this Agreement for any reason be declared invalid by
order of any court or regulatory agency, such order shall not affect
the validity of any remaining portion, which shall remain in force and
effect as if this Agreement had been executed with the invalid portion
eliminated, and it is hereby declared the intention of the parties that
they would have executed the remaining portion of this Agreement
without including therein any such part or portion which may, for any
reason, be hereafter declared invalid.
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18. SERVICE LEVEL WARRANTY
ZIPLINK warrants that it will use its commercially reasonable efforts
to minimize Excess Packet Loss and Latency, and to avoid Downtime, and
that ZIPLINK will provide the following remedies to Reseller: (Excess
Packet Loss, Latency and Downtime are defined below)
18.1 PACKET LOSS AND LATENCY. ZIPLINK shall proactively monitor the
packet loss or transmission latency of specific Resellers. In
the event that ZIPLINK discovers (either from its own efforts
or after being notified by Reseller) that Reseller is
experiencing packet loss in excess of *********
("Excess Packet Loss") or transmission latency in excess of
*********** round-trip time based on ZIPLINK's
measurements ("Latency") between any two routers within the
continental United States portion of the Network on average
for each hour, and Reseller notifies ZIPLINK (or ZIPLINK has
notified Reseller), then ZIPLINK will use its commercially
reasonable actions to determine the source of the Excess
Packet Loss or Latency and correct the problem.
18.2 REMEDY FOR FAILURE. If either Excess Packet Loss or Latency
occurs and it stems from a source within the Network and not
from the Reseller or beyond the Network, and if ZIPLINK fails,
to correct the Excess Packet Loss or Latency after using its
commercially reasonable efforts for a period of ************
after the onset of such Excess Packet Loss or Latency, then
ZIPLINK will credit Reseller's account the pro-rata Fees for
the continuous duration of such Excess Packet Loss or Latency;
provided that all such credits will not exceed an aggregate
maximum credit of Fees otherwise due from Reseller for one (1)
calendar month for failures in any one (1) calendar month.
18.3 INABILITY TO ACCESS THE INTERNET (DOWNTIME). ZIPLINK will use
its commercially reasonable efforts to avoid Downtime
network-wide for 99.5% of the hours as an average calculated
network-wide over each calendar month. If Reseller is unable
to transmit and receive information from the Network to other
portions of the Internet because ZIPLINK failed to provide
Network access Services ("Downtime") for more than *********
**********, then ZIPLINK will credit Reseller's account
the pro-rata Fees for the continuous duration of such Excess
Packet Loss or Latency; provided that all such credits will
not exceed an aggregate maximum credit of Fees otherwise due
from Reseller for one (1) calendar month for failures in any
one (1) calendar month. For purposes of the foregoing, "unable
to transmit and receive" shall mean sustained packet loss in
excess of ************** based on ZIPLINK's measurements.
18.4 Reseller shall have the right to terminate this Agreement
without penalty if (a) Reseller experiences ***********
********** of downtime within a **********************
period or experiences cumulative outages of over sixteen (16)
hours in any ninety (90) day period of Service, or (b)
Reseller experiences excessive Latency or Packet Loss, as
defined in Section 19 1.1, for a period of ************ in
a ******************************* in a 90 day period.
Notwithstanding anything to the contrary herein, ZIPLINK will
be afforded a ********** opportunity to cure any breach of
its warranties under this section and Reseller's right to
terminate this Agreement shall not be effective in the event
that ZIPLINK reasonably cures any such breach as defined in
Section 18 in a timely manner.
19. DISPUTE RESOLUTION
Any dispute not resolved pursuant to Section 5C arising out of or
relating to this Agreement shall be settled by arbitration by a panel
of three arbitrators, one of which shall be an arbitrator chosen by
ZIPLINK, one of which shall be an arbitrator chosen by Reseller, and
one of which shall be chosen by the previously chosen arbitrators and
in accordance with the rules of the American Arbitration Association.
The decision of the arbitrator shall be final and binding. Any court
with jurisdiction may enter judgment upon the award rendered by the
arbitrators. All such arbitration shall be conducted in California.
Pending resolution of the dispute, the parties agree to continue to
perform all obligations arising under this Agreement.
20. YEAR 2000
ZIPLINK warrants that its internal operating and network systems are
designed to operate during calendar year 2000 C.E. without material
error or interruption relating to date data (including, without
limitation, date data which represents or references different
centuries or more than one century or leap year) in any level of the
systems assuming, in each case, that all systems and products used in
combination with them properly exchange data (hereinafter referred to
as "Year 2000 Compliant"). In the event that ZIPLINK's systems are not
Year 2000 Compliant, ZIPLINK shall promptly seek to modify its systems
so as to ensure that the systems are Year 2000 Compliant to the extent
that such modifications can be accomplished on a commercially
reasonable basis. If ZIPLINK's systems are not Year 2000 Compliant and
are not promptly modified to become Year 2000 Compliant, then Reseller
shall have the right to terminate this Agreement without penalty, which
shall constitute Reseller's sole remedy with respect to such systems
not being Year 2000 Compliant.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on behalf of each other by a person with full power and authority to bind such
party.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President of Sales
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ZIPLINK, Inc.
By:
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By: /s/ ▇▇▇▇▇ ▇. Hotell
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Print Name: ▇▇▇▇▇ ▇. Hotell
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Title: Vice President of Strategic Alliances
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▇▇▇▇▇▇▇.▇▇▇
By:
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RESELLER AGREEMENT SCHEDULE I
COMPANY CONFIDENTIAL
ZIPDIAL SERVICES
1. MINIMUM MONTHLY USER COMMITMENT
Reseller commits to a minimum monthly usage commitment of ********. If the
minimum monthly usage commitment is not achieved, ZIPLINK will charge a $100
monthly account maintenance fee plus actual incurred usage.
The account maintenance fee does not apply during the first 180 days of the
Agreement.
2. ZIPLINK SERVICES (ZIPDIAL):
2.1.1 DIAL-UP NETWORK SERVICES: ZIPLINK shall provide dial-up access via
standard telephone lines between Reseller's end users and ZIPLINK's
facilities.
2.1.2 CONNECTIVITY BETWEEN ZIPLINK AND RESELLER: Reseller shall provide
connectivity between ZIPLINK's dial-up network facilities and Resellers
facilities. The traffic shall be delivered through dedicated lines
between ZIPLINK's and Reseller's facilities or through the Internet.
The Reseller shall pay the cost for establishing and maintaining such
connectivity.
2.2 RESELLER SERVICE AND TECHNICAL SUPPORT: Reseller is responsible for all
Subscriber support, billing, and collections. ZIPLINK shall not be
responsible for any hardware and software requirements of Reseller's
Subscriber to connect with ZIPLINK's facilities. ZIPLINK's relationship
under this Agreement is solely with Reseller and not with any of
Reseller's Subscriber. ZIPLINK shall provide Reseller with Network
Operations Center (NOC) phone number, which shall be used only by
Reseller or Reseller's qualified sub-contractor and shall not be
released, to Reseller's Subscriber. ZIPLINK shall actively monitor the
performance of its systems, and shall notify in writing Reseller
promptly of any condition, which materially adversely affects such
performance. ZIPLINK will use reasonable commercial efforts to provide
Reseller with advanced written information 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
Reseller's ability to service its Subscribers.
2.3 NETWORK REPORTS: ZIPLINK shall provide network performance reports to
Reseller on a monthly basis as defined by both parties.
2.4 NETWORK COVERAGE: ZIPLINK currently maintains a local calling area
footprint of local access numbers (each, a "dialup POP"), as described
in "Attachment A". ZIPLINK will not reduce this local calling area
coverage below 90% of the existing local calling areas listed in
"Attachment A", without thirty (30) days written notice prior to
discontinuing an existing local access number and/or a particular
geographic location. If ZIPLINK breaches any obligation of this
Section, Reseller 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. If such renegotiation does not result in an agreement
between the parties within thirty (30) days, Reseller shall have the
right to immediately terminate this Agreement without penalty.
2.5 PROJECT MANAGEMENT: Upon the execution of the Agreement, ZIPLINK will
assign a project manager for the term of the Agreement to serve as the
Reseller's primary single point of contact.
2.6 MANAGED DISCONNECT: ZIPLINK will provide Reseller with "Managed
Disconnect" functionality. This service/protocol/script will allow
Reseller to immediately terminate individual user sessions that have
current dial-up connections on ZIPLINK's network. Users may be
identified for disconnection by login, IP address, RADIUS session ID,
or a NAS/PORT combination.
3. FEES AND CHARGES
3.1 BASIC HOURLY RATES PER EACH MONTH FOR DIAL-UP SERVICES
Hours of monthly usage Rate per hour
0-1 million ...................... ******
1 mil. -2 million ................ ******
2 mil. - 3 million ............... ******
The pricing offered under this Agreement is conditioned upon a one (1)
year commitment of the Reseller and the agreement by the Reseller to
occupy ports over a distribution of cities served by ZIPLINK's network.
For each Renewal Period of this Agreement, the pricing quoted by
ZIPLINK is conditioned upon Reseller agreeing to limit average monthly
usage during peak hours (those hours defined as 7 p.m. - 12 a.m. local
standard time for the port city) so that it does not exceed 35% of the
total monthly usage of the Reseller or its Subscribers on the ZIPLINK
network in any given month. In the event, total usage is greater than
35% during peak hours during the Renewal Period, ZIPLINK will notify
Reseller and Reseller agrees to take reasonable efforts to limit usage
to less than the 35% during peak hours and if such over-usage is not
remedied within 90 business days during the Renewal Period after
written notice. ZIPLINK reserves the right to terminate service to
Reseller and its Subscribers if Reseller fails to take corrective
action in a timely manner.
At any time the six (6) month average monthly usage (the "Base Monthly
Average") exceeds 4,000,000 monthly hours for Reseller's Subscribers,
Reseller agrees not to reduce usage more than *** in a given month.
After achieving the Base Monthly Average, in the event monthly usage
for its Subscribers declines more than *** in a given month because
Reseller substitutes
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another vendor for ZIPLINK as Reseller's vendor for network services,
Reseller shall pay ZIPLINK that amount over the *** reduction due for
average monthly usage attributable for the number of users
discontinuing services but only to the extent it declines over *** of
the average monthly usage for ZIPLINK Services.
3.2 OTHER FEES AND CHARGES APPLICABLE FOR DIAL-UP SERVICES
3.2.1 Set up Fees - A setup fee of $500 will be charged to the Reseller for
the initial 5 realms prior to the provision of services. Each
additional realm will be set-up with no additional charge. ZIPLINK will
provide all reasonable assistance to assist Reseller's radius server to
proxy request between ZIPLINK and Reseller's Radius Server. In most
cases this is accomplished in less than 30 minutes for each realm.
3.2.2 Additional Realm Use Fees (defined as any realm over the initial 5
realms): Reseller shall pay ZIPLINK an additional fee of ****** in the
event after twelve (12) months said Additional Realm does not generate
****** hours of monthly usage by Reseller's Subscribers. The Additional
Realm use fee shall be waived in the event Subscriber monthly usage
exceeds ***** hours within ninety days after initial set-up.
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RESELLER AGREEMENT SCHEDULE II
COMPANY CONFIDENTIAL
SUBSCRIBER AGREEMENTS
ACCEPTABLE USE POLICY:
This policy may be changed from time to time by ZIPLINK. In the event the change
adversely and materially impacts Reseller's relationship to its Subscribers,
Reseller may after reasonable notice of no less than 10 days and opportunity to
cure given to ZIPLINK of 10 days, terminate this Agreement without penalty.
Reseller shall maintain a policy that is consistent with the material terms as
defined in the following:
A. RESELLER allows no more than one dial-up connection from a
Reseller's Subscriber account at a time.
B. RESELLER makes no warranties of any kind, whether expressed or
implied, including any implied warranty of merchantability or
fitness of this service for a particular purpose. RESELLER takes no
responsibility for any damages suffered by you including, but not
limited to, loss of data from delays, non-deliveries,
mid-deliveries, or service interruptions caused by RESELLER's own
negligence or your errors, and/or commissions.
C. The services of RESELLER may only be used for lawful purposes.
Transmission of material is subject to compliance with any
applicable laws and regulations. This includes, but is not limited
to: copyright material, threatening or obscene material, or
material protected by trade secret. SUBSCRIBER agrees to indemnify
and hold harmless RESELLER from any claims resulting from your use
of this service, which damages you or another party. At RESELLER
sole discretion, RESELLER may revoke SUBSCRIBER access for
inappropriate usage.
D. If SUBSCRIBER uses another organization's networks or computing
resources, SUBSCRIBER is subject to their respective permission and
usage policies. These policies relate to the use of such services
as electronic mail, news postings, file transfers, Telnet or rlogin
accesses, and World Wide Web server access.
E. Use of any information obtained via this service is at SUBSCRIBER's
own risk. RESELLER is not responsible for the accuracy, quality, or
content of information obtained through RESELLER's services.
F. All RESELLER services are for Subscriber use only and may not be
resold to third parties without a separate Reseller Agreement on
file with RESELLER.
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RESELLER AGREEMENT SCHEDULE III
NETWORK INTEROPERABILITY
A. ZIPLINK shall make its dial-up (Internet) network access facilities
available to Reseller via the public switched telephone network
using circuit termination equipment which complies with current
interface and modem standards (i.e. V.34 for 33,600 bps service,
with extensions for V.90 as available) and supports dial-in
connection speeds of (at least) 36,600 bps. In addition, ZIPLINK
will use equipment, which supports PPP connections and PAP
authentication in a manner, which is compatible with industry
standards. ZIPLINK will reasonably notify Reseller of changes in
its modem and terminal server hardware and software in advance of
making such changes and if Reseller should determine that planned
changes are not compatible with Reseller systems and services,
Reseller may exercise its rights to terminate this agreement
without penalty.
B. ZIPLINK shall operate a proxy server that can identify access by
Reseller's Subscribers and forward login attempts from such
Subscribers to Reseller's Radius server for authentication,
provided that Reseller's Radius server can be reached through the
Internet from ZIPLINK's network, or with dedicated lines between
the parties.
C. Reseller agrees to assign each Subscriber a unique identification
number for ZIPLINK billing purposes, and to reasonably cooperate
with ZIPLINK in establishing the structure of this identification
number.
D. Reseller will impose inactivity time-outs of a minimum of fifteen
(15) minutes. ZIPLINK will implement inactivity time-outs of a
minimum of seventeen (17) minutes for backup purposes, in case the
time-out is not effective.
Reseller Initials MSH Date 1/12/00 ZIPLINK Initials MM Date 1/12/00
--- ------- -- -------
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ATTACHMENT A
LOCAL ACCESS NUMBERS
City Number
*******
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Vice President of Sales
---------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. Hotell
---------------------------------------------
Print Name: ▇▇▇▇▇ ▇. Hotell
---------------------------------------------
Title: Vice President of Strategic Alliances
---------------------------------------------
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*********
Confidential 12
**********
Confidential 13
***********
Confidential 14
************
Confidential 15
************
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FIRST AMENDMENT TO ZIPDIAL CONTRACT
On this 31st day of March, 2000, reference is made to that certain
Agreement dated January 12, 2000 (the "Agreement"), between ZipLink, Inc
("ZIPLINK") ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ and Spin Media Network,
Inc. d/b/a ▇▇▇▇▇▇▇.▇▇▇ ("Spinway") ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
under which Agreement ZIPLINK has agreed to provide and, Spinway has agreed to
purchase, telecommunication services as more particularly described in Schedule
I of the Agreement.
WHEREAS, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the Parties hereby agree to the
following amendments to the Agreement:
A. SECTION 1 of the Agreement is amended to extend the term of this agreement to
March 31, 2002.
B. SECTION 3 of the Agreement shall be amended to include the following
additional SUB-SECTION 3. F.:
Effective April 30, 2000 and on a monthly basis thereafter, Spinway shall
provide Ziplink a rolling 3 month forecast of Spinway hourly usage (the "Usage
Forecasts") designated by "Tier 1", "Tier 2" and "Tier 3" cities" as such "Tier
cities" are delineated in Schedule I-A attached hereto. To the extent actual
usage by Tier city varies in excess of 20% to the Usage Forecasts, Spinway shall
not be entitled to assert the remedies available to it under Section 18.5 of the
Agreement.
C. SECTION 18 of the Agreement shall be amended to include the following
SUB-SECTION 18.5
NETWORK AVAILABILITY. If the overall connection success rate for a Ziplink point
of presence ("POP") is less than *** as reasonably and accurately computed by
Spinway's internal dial reports produced monthly for distribution between the
parties and, Spinway has previously provided Ziplink its Usage Forecast pursuant
to Section 3 (F), Spinway shall be entitled to a reduction of its "minimum
monthly usage commitment" obligation under Section 1 of Schedule I by a
percentage equal to the percentage of all Spinway Subscribers using that
specific POP multiplied by the minimum monthly usage commitment. This reduction
of the minimum monthly usage commitment shall remain in effect until such time
as Ziplink exceeds an *** connection success rate for two consecutive monthly
reporting periods at which time the scheduled minimum monthly usage commitment
shall be reinstated.
(For example, if Ziplink's Chicago POP's Connection success rate is below
**** and 5% of the Spinway Subscribers on Ziplink's access numbers
connect to the Chicago POP,
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Spinway's minimum monthly usage commitment for the subsequent months will
be reduced by 5% until such time as Ziplink's Chicago POP's success rate is
above *** for two consecutive monthly reporting periods. If Spinway has
failed to provide the Usage Forecast no recalculation or reduction shall
be applied under the Agreement.).
D. SECTION 1 OF SCHEDULE I is deleted in its entirety and in its stead is
inserted the following:
1. Spinway agrees to minimum monthly hourly usage commitments ( the "minimum
monthly usage commitment") based on the following Schedule I-A corresponding
with the term of this Agreement.
SCHEDULE I-A
--------------------------------------------------------------------------------
AMENDED TERM MONTH MINIMUM MONTHLY USAGE COMMITMENT (BY HOURS)
--------------------------------------------------------------------------------
1 *********
--------------------------------------------------------------------------------
2 *********
--------------------------------------------------------------------------------
3 *********
--------------------------------------------------------------------------------
4 *********
--------------------------------------------------------------------------------
5 *********
--------------------------------------------------------------------------------
6 *********
--------------------------------------------------------------------------------
7 *********
--------------------------------------------------------------------------------
8 *********
--------------------------------------------------------------------------------
9 *********
--------------------------------------------------------------------------------
10 *********
--------------------------------------------------------------------------------
11 *********
--------------------------------------------------------------------------------
12 *********
--------------------------------------------------------------------------------
13 *********
--------------------------------------------------------------------------------
14 *********
--------------------------------------------------------------------------------
15 *********
--------------------------------------------------------------------------------
16 *********
--------------------------------------------------------------------------------
17 *********
--------------------------------------------------------------------------------
18 *********
--------------------------------------------------------------------------------
19 *********
--------------------------------------------------------------------------------
20 *********
--------------------------------------------------------------------------------
21 *********
--------------------------------------------------------------------------------
22 *********
--------------------------------------------------------------------------------
23 *********
--------------------------------------------------------------------------------
24 *********
--------------------------------------------------------------------------------
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Spinway, with a 90 day written notice, shall have the option to reduce its
minimum monthly usage commitment. In the event Spinway opts to reduce its
minimum monthly usage commitment for a particular month within 360 days from
that particular month it will be obligated to pay Ziplink, a network
availability fee of 50% of the agreed charge for the original committed hours
less the charge for that particular month for actual hours used by Spinway. For
months commencing greater than 360 days from the date of notice Spinway shall be
obligated to pay Ziplink a network availability fee of 25% of the charge
pursuant to the Agreement for the original committed hours less the actual hours
used by Spinway. The network availability fee shall be based on the lowest
available Tier city rate. (For example, in Month 3 of this Agreement, Spinway
notifies Ziplink that it intends to restate the Month 13 utilization to be
********** hours. Actual usage is ********* hours in Month 13. Spinway would be
liable for a network availability fee equal to the charge for ************* (50%
of ****************). If actual usage was ************ hours Spinway would be
liable for a network availability fee of ******* hours determined by computing
the shortfall to the revised commitment of ******************************
plus 50% of the original ******** hours reduction in the minimum monthly usage
commitment.)
F. SECTION 3 OF SCHEDULE I is deleted in its entirety and in its stead is
inserted the following language:
3. CHARGE BY TIER CITY. Spinway shall be charged the following rates for its
Minimum Monthly Usage Commitment by Tier City as defined herein:
HOURLY RATE
Tier 1 City ................... ********
Tier 2 City ................... ********
Tier 3 City ................... ********
Spinway will make available one Ziplink access number for each unique calling
area to Spinway end users.
If Ziplink reduces the number of Tier 1 or Tier 2 cities by more than 15%,
Spinway, at its sole option may terminate without penalty this Agreement.
G. SCHEDULE I-B is hereby included in the Agreement:
SCHEDULE I-B
TIER CITIES
[The parties should regularly update and amend this list by mutual
agreement.]
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The Tier cities as defined in this Agreement shall be as follows:
Tier 1 Cities:
************
Tier 2 Cities:
*************
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************
Tier 3 Cities:
**************
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Except as herein specifically amended, altered or modified, each and every
other provision of the Agreement and any and all documents related thereto
remain in full force and effect and are hereby ratified and confirmed.
Spin Media Network, Inc.,
By:_________________________________Date:_______________________________
Ziplink, Inc.,
By:_________________________________Date:________________________________
