EXHIBIT 10.15
CLIENT: DIGITAL IMPACT, INC.
---------------------
ADDRESS: 000 XXXXX XX
---------------------
XXX XXXXX XX 00000
---------------------
DATE: 9/25/02
---------------------
[GLOBIX LOGO]
MASTER SERVICE AGREEMENT (vC1.01)
This Master Service Agreement ("Agreement"), by and between Globix Corporation,
a Delaware corporation with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000
("Globix") and Client covers business transactions which Globix and Client may
enter into from time to time.
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS
CLIENT: The party entering into this Agreement with Globix.
CONTENT: Audio, video, film, slides or other images or text (digital or
otherwise) either provided to Globix by Client for Globix's performance of the
Services or transmitted through the Globix network.
EXHIBIT I: Sets forth a description, and the cost, of specific Goods and/or
Service to be performed, or provided, by Globix. Separate Exhibits I may be
executed for different Goods and/or Service.
GOODS: Any products, including hardware, firmware or software licenses sold,
licensed or otherwise provided to Client.
SERVICE: Work performed by Globix hereunder.
SECTION 1. TERM This Agreement shall remain in effect until terminated pursuant
to Section 10 hereof.
SECTION 2. ORDER SUBMISSION, CREDIT APPROVAL AND DEPOSITS Client may from time
to time submit to Globix orders containing requisite information on an Exhibit I
or other approved form. Globix's acceptance shall confirm the availability of
the Goods and/or Service requested. Orders are subject to credit approval.
Client shall provide Globix with information to demonstrate acceptable credit
before delivery of Goods and/or Service under any Exhibit I. Globix may require
Client to prepay or furnish a deposit as a condition of acceptance or
continuation of an order.
SECTION 3. BILLING AND PAYMENT
3.1 BILLING. One time set-up fees are due upon order submission. Recurring
Service charges are billed monthly in advance, effective upon Globix's delivery
of Service. Usage and consumption charges are billed in arrears.
3.2 PAYMENT. Payment is due in accordance with the invoice, without set off or
deduction within thirty (30) days of the invoice date. The unpaid balance of
any invoice shall bear interest at the lesser of 1.5% per month (prorated on a
daily basis) or the highest rate allowed by law and Client shall pay all
collection costs including reasonable attorneys' fees.
3.3 DISPUTED BILLS. Client may dispute an invoice or portion thereof only by
(i) submitting a written detailed claim (c/o Accounting Dept.) describing such
dispute within thirty (30) days of the invoice date and (ii) making full and
timely payment of all undisputed amounts.
3.4 TAXES AND FEES. Prices for Goods and/or Service are exclusive of
applicable sales or use taxes, which shall be paid by Client.
3.5 REGULATORY AND OPERATIONAL CHANGES. In the event of any future regulatory
requirement, tax, tariff, increased power costs or similar circumstance that
increases the cost of Service, Client shall have thirty (30) days after notice
of the related price increase to terminate the affected Service without early
termination charges.
SECTION 4. PERFORMANCE BY GLOBIX Globix will use industry standard efforts to:
(i) maintain Globix's facilities and equipment required to deliver Service,
(ii) furnish Service in accordance with the applicable Service Level Agreement
("SLA"), provided Globix has operational facilities available at the time of
Client's order, regardless of whether or not Client's equipment is operational,
and (iii) provide additional Service, upon request and if appropriate resources
are available at Globix's standard rates.
SECTION 5. GOODS
5.1 TITLE. Title to Goods sold to Client shall pass upon full payment. As
security for such payment, Client hereby grants to Globix a security interest
in and to any such Goods and the proceeds thereof. Title to all other Goods,
equipment and/or facilities furnished by Globix, shall remain with Globix.
5.2 SHIPMENT. Client shall notify Globix and the shipping company, in writing,
within two (2) business days after delivery of any defective, non-conforming or
damaged Goods. Failure to do so shall constitute acceptance of any such Goods
and a waiver of any claim against Globix.
5.3 RETURNS. To return Goods, Client must obtain a return material
authorization from Globix's Purchasing Department.
5.4 EXCLUSIONS. Equipment provided or installed by Globix for use in connection
with the Service shall not be used for any purpose other than that for which
Globix provided it. In the event that Client or a third party attempts to
operate or maintain any Globix-owned equipment without first obtaining Globix's
written approval, Client shall pay Globix, in addition to any other remedies to
which Globix is entitled, for any damage incurred, repair and/or replacement (at
Globix's option) necessitated and service charges relating to the maintenance or
inspection of said equipment. Globix is not responsible for the installation,
maintenance, compatibility, or performance of any equipment or software not
provided by Globix. If such equipment or software impairs the Service, Client
remains liable for payment. If such equipment or software causes or is likely to
cause hazard or service obstruction, Client shall, upon notice, remedy the
situation. Globix may, at Client's request and at Globix's then-current rates,
render consulting Service to remedy the difficulties caused by any of the
foregoing.
5.5 GOODS AND/OR SERVICES SELECTED. (i) Globix agrees to provide and Client
agrees to purchase the Goods and/or Service set forth on the attached Exhibit I
and (ii) in the event Client requests Globix to perform consulting or technical
Service of a specialized nature, the details, deliverables, milestone dates,
fees and other pertinent information relating to such performance will be set
forth on an attached, executed Statement of Work ("SOW"). In such event, Globix
shall provide said Service to Client using employees or subcontractors of
Globix, in Globix's sole discretion.
SECTION 6. CLIENT OBLIGATIONS
6.1 CLIENT'S OBLIGATIONS.
A. Client shall pay: (i) charges applicable to the Goods and/or Service
(including charges incurred as a result of fraud or unauthorized use of the
Service); (ii) additional fees or charges arising from supplemental Client
Service requests and/or Client's usage of facilities, bandwidth and/or network
capacity above and beyond Client's entitlement as set forth in the applicable
SLA and/or Exhibit I; and (iii) other agreed charges.
Page 1 of 5
B. Client will: (i) be solely responsible for all Content and any party's
reliance thereunder and (ii) allow Globix, for the sole purpose of its
performance hereunder, to copy, display, distribute, download, transmit and
otherwise use the Content.
C. Client shall not and shall not permit others to rearrange, disconnect,
remove, attempt to repair, or otherwise tamper with any of the facilities or
equipment installed by Globix or its agents, except upon Globix's written
consent.
D. For complex web hosting Service, Client shall obtain and/or maintain in
full force and effect during the Term of the applicable Exhibit I: (i)
comprehensive general liability insurance in an amount not less than five
($5,000,000) million dollars per occurrence for bodily injury and property
damage; (ii) employer's liability insurance in an amount not less than one
($1,000,000) million dollars per occurrence; and (iii) workers' compensation
insurance in an amount not less than the statutory requirements. Client shall
furnish Globix with a certificate evidencing such coverage and naming Globix as
an additional insured. Client will be solely responsible for ensuring that its
agents (including consultants, contractors and subcontractors) maintain
separate insurance at levels no less than those required herein above. Client
is solely responsible for obtaining and/or maintaining appropriate property
coverage for all Client equipment located on Globix's premises.
E. When Service occurs at Client's designated premises, Client shall provide:
(i) space, utilities, and HVAC necessary to maintain the proper environment for
the Service, (ii) a safe, hazard free, working environment complying with
applicable laws and regulations, and (iii) access and cooperation as may be
required for provision of Goods and Service; and (iv) shall ensure Globix's
equipment remains free and clear of any liens or encumbrances.
F. Client shall notify Globix of any changes to its notice address or other
contact information.
6.2 CLIENT WARRANTY. Client warrants and represents that it has all necessary
right, title and interest in the Content, and that it has obtained all
consents, licenses, permissions and releases necessary to grant Globix the
right to distribute the Content.
6.3 COMPLIANCE. Client shall comply with all applicable laws and regulations
and with Globix's Policies and Procedures as may be in effect from time to time
(See the Globix website -- xxx.Xxxxxx.xxx).
SECTION 7. SERVICE LEVEL; DISCLAIMER OF WARRANTIES
7.1 SERVICE LEVEL. Service shall conform to the SLA attached hereto or
attached to an applicable Exhibit I.
7.2 NO OTHER WARRANTY. EXCEPT FOR THE SERVICE LEVEL REFERENCED IN SECTION 7.1,
SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GLOBIX EXCLUDES
AND CLIENT HEREBY WAIVES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED
(OTHER THAN RELATING TO TITLE OF GOODS) ARISING BY OPERATION OF LAW OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE NONINFRINGEMENT, AND TITLE. AS WELL AS ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. GLOBIX
DOES NOT WARRANT OR GUARANTY THAT THE SERVICE WILL CAUSE THE GOODS TO OPERATE
WITHOUT FAULT, ERROR OR INTERRUPTION. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR
GLOBIX'S FAILURE TO PROVIDE THE SERVICE LEVEL SET FORTH IN THE SLA IS TO
TERMINATE THE RESPECTIVE EXHIBIT I SUBJECT TO THE TERMINATION LIABILITY, AND AS
PROVIDED IN THE APPLICABLE SLA.
SECTION 8. LIMITATION OF LIABILITY
8.1 LIMITATION OF LIABILITY.
A. THE LIABILITY OF GLOBIX FOR DAMAGES ARISING OUT OF THE FURNISHING OF
SERVICE OR ANY OTHER MATTER HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES,
OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS,
REPRESENTATIONS, USE OF SERVICE OR ARISING OUT OF THE FAILURE TO FURNISH
SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION (INCLUDING CLIENT
HARDWARE OR SOFTWARE FAILURES OR ANY OTHER DAMAGE OCCURRING AFTER THE PROVISION
OF SERVICE) SHALL BE LIMITED TO THE EXTENSION OF CREDIT ALLOWANCES DUE UNDER
ANY APPLICABLE SLA. THE EXTENSION OF SUCH CREDIT ALLOWANCES OR REFUNDS SHALL
BE CLIENT'S SOLE REMEDY AND GLOBIX'S SOLE LIABILITY. IN NO EVENT SHALL GLOBIX'S
LIABILITY EXCEED SERVICE PAYMENTS MADE BY CLIENT TO GLOBIX OVER THE PRECEEDING
TWELVE (12) MONTHS.
B. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF A
PARTY'S EMPLOYEES OR REPRESENTATIVES, CULPABLE NEGLIGENCE, OR WILLFUL
MISCONDUCT REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE LIKELIHOOD
OF SUCH DAMAGES.
C. GLOBIX SHALL HAVE NO OBLIGATION OR LIABILITY FOR (i) ANY RECONFIGURATION,
MODIFICATION, MISUSE OR ABUSE OF GOODS OR SERVICE BY CLIENT OR ITS AGENTS AND
(ii) ANY CONTENT.
8.2 BASIS OF BARGAIN AND FAILURE OF ESSENTIAL PURPOSE. Client acknowledges
and agrees that Globix has set its prices and entered into this Agreement in
reliance on the warranties, limitations and disclaimers set forth herein which
reflect an allocation of risk between the parties (including the risk that a
contract remedy may fail of its essential purpose and cause consequential
loss) and forms an essential basis of the bargain between the parties.
SECTION 9. SUSPENSION
9.1 RIGHT TO SUSPEND. Globix may suspend access or any or all Service
forthwith in the event that:
A. (i) Client fails to comply with any provision of Sections 3, 6 or 11 of
this Agreement or (ii) Globix is entitled to terminate this Agreement
(including, without limitation, by reason of a breach, fault or omission by
Client hereunder);
B. such suspension is: (i) for the purpose of carrying out maintenance
pursuant to this Agreement; (ii) to substitute, change, reconfigure, relocate
or rearrange Service; or (iii) in accordance with an order, instruction or
request of any government entity; or
C. Client consumes Service in an amount that materially exceeds Client's
credit limit and Client, after demand, has not provided sufficient security for
payment.
9.2 NO WAIVER. Suspension shall not be a waiver of any right of termination.
If Service has been suspended other than for Client's breach, Service shall be
restored as soon as reasonably possible and the applicable Service charges shall
be ratably abated. If Service has been suspended for any other reason and Client
requests that Service be restored; Globix may restore Service after satisfaction
of conditions and imposition of charges as Globix reasonably requires.
SECTION 10. TERMINATION
10.1 TERMINATION FOR CAUSE. Globix may terminate this Agreement: (i) without
notice upon Client's failure to pay amounts when due, after five (5) days
written notice and failure to cure; (ii) for breach of a material provision of
this Agreement, after fourteen (14) days written notice and failure to cure;
(iii) if Globix is unable to provide Service hereunder due to Client's acts or
omissions; (iv) upon any regulatory decision or governmental order requiring
Globix to suspend Service(s) or which is reasonably likely to result in the
loss of Globix's operating authority, upon reasonable notice; or (v) if Client
files for bankruptcy or reorganization or fails to discharge an involuntary
petition therefor within sixty (60) days after filing. Any termination
hereunder, except under Section 10.1(iv), shall subject Client to applicable
termination and other accrued charges.
10.2 TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement
upon thirty (30) days notice provided no Exhibits I are still in effect and
amounts due Globix shall have been paid.
10.3 EARLY TERMINATION: CHARGES. If Service is terminated before the
Page 2 of 5
end of the Term, Client will pay an early termination charge of seventy-five
percent (75%) of its recurring charges for the remainder of the Term, except
if: (i) Client terminates as a result of Globix's material breach, or (ii)
Globix terminates other than by reason of Client's breach. In the event that
Client fails to pay Globix all amounts owed under an Exhibit I in a timely
manner, Client agrees that without notice, Globix may, without liability, take
possession of any Client equipment and store it, at Client's expense, until
taken in full or partial satisfaction of any lien or judgment; or liquidate the
property in a commercially reasonable manner, upon notice and apply the
proceeds to any amounts due under this Agreement.
SECTION 11. SOFTWARE
11.1 LICENSE. If and to the extent computer software provided by Globix or its
licensors is required for the use of a Service ordered by Client hereunder
("Licensed Software"), Globix shall grant or obtain for Client a nonexclusive,
nontransferable, limited license to use such Licensed Software, in object code
format only, and solely to the extent required to use the Service. If Globix is
the licensor, Client shall in no event be entitled to claim title to or any
ownership interest in any Licensed Software (or any derivations or improvements
thereto), and Client shall execute any documentation reasonably required to
memorialize Globix's existing and continued ownership of Licensed Software. If
a third party is the licensor, Client's entitlement shall be limited solely to
the license offered by said party.
11.2 RESTRICTIONS. Client shall not copy, reverse engineer, decompile,
disassemble, sell, lease, license or sublicense the Software; or create, write
or develop any derivative software or other software program, based on the
Software.
SECTION 12. CONDITION PRECEDENT CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT
GLOBIX'S OBLIGATION TO PERFORM UNDER THIS AGREEMENT AND ANY EXHIBITS ENTERED
INTO HEREUNDER MAY BE CONDITIONED UPON THE CONSTRUCTION AND/OR RETENTION OF
OPERATIONAL FACILITIES. FACILITIES AVAILABILITY SHALL INCREASE ON AN ONGOING
BASIS. IF THE FOREGOING CONDITIONS ARE NOT SATISFIED ON THE APPLICABLE
EFFECTIVE DATE, THE PARTIES' OBLIGATIONS UNDER THIS AGREEMENT, ANY EXHIBITS AND
THE PAYMENT OF RECURRING MONTHLY FEES SHALL BE SUSPENDED UNTIL SUCH CONDITIONS
ARE SATISFIED.
SECTION 13. MISCELLANEOUS
13.1 FORCE MAJEURE. Except with respect to accrued payment obligations,
neither party shall be liable for any failure of performance due to causes
beyond such party's reasonable control, including, but not limited to: acts of
God, fire, flood or other catastrophes; any law, order, regulation, or
governmental action, national emergencies, insurrections, riots or wars;
unavailability of rights-of-way; or strikes or other labor difficulties not
involving Globix, provided however, the affected party shall use commercially
reasonable efforts to eliminate such event.
13.2 NO COMPETITIVE SERVICE. Client may not at any time, without Globix's
prior written consent, permit any Globix facility to be utilized for the resale
of Internet access or managed services to Globix clients.
13.3 NON-SOLICITATION. Neither party shall knowingly solicit for employment,
offer employment to or employ the other party's employees during and for a
period of two (2) years following termination of this Agreement. In the event
of a breach of this provision the parties agree that appropriate liquidated
damages shall be payment by the breaching party of one hundred (100%) percent
of the new annual compensation of the employed individual.
13.4 NO LEASE. This Agreement is for Goods and/or Service only and is neither
intended to nor does it constitute an agreement relating to real property.
Client acknowledges and agrees that (i) it has been granted only a revocable
license to use any applicable Client space and appropriate Globix facility in
accordance with this Agreement, and (ii) Client has no rights as a tenant or
otherwise under any real property or landlord/tenant laws, regulations, or
ordinances.
13.5 ASSIGNMENT OR TRANSFER. Neither party may transfer or assign this
Agreement, or any of its rights or obligations hereunder without the other's
prior written consent, which will not be unreasonably withheld. Each party
shall remain liable for nonpayment by its respective assignee or transferee.
Notwithstanding the foregoing, Globix may assign or transfer this Agreement
without notice to a Globix affiliate or successor in interest.
13.6 NOTICE. Notice shall be in writing to the address set forth hereinabove
and properly given: (i) immediately, if delivered in person, via facsimile, or
electronic mail; (ii) after one (1) day, if sent by overnight courier; or (iii)
after three (3) days, when sent by first class U.S. Mail.
13.7 MARKETING. Client agrees that Globix may refer to Client and may briefly
describe Client's business in Globix's marketing materials and on the Globix
website. Client hereby grants Globix a limited license to use any Client trade
names and trademarks only for this purpose.
13.8 INDEMNIFICATION BY CLIENT. Client shall indemnify, defend and hold
harmless Globix, its officers, employees, subcontractors, representatives,
landlords and/or mortgagees from claims, loss, damage, expense (including
reasonable attorney's fees and court costs), liability (including liability for
infringement of a third party's intellectual property rights), personal injury,
death or property damage caused by or arising from:
A. the content of any communication transmitted via the Service or maintained
in connection with any Goods provided hereunder;
B. the acts or omissions of Client or a third party, including their
respective employees or representatives, in connection with the Goods or
Service provided hereunder.
13.9 INDEMNIFICATION BY GLOBIX. Globix shall indemnify, defend and hold
harmless Client from claims, loss, damage, expense (including reasonable
attorney's fees and court costs), or liability (including liability for
infringement of a third party's intellectual property rights) for property
damage or personal injury to the extent that such claims arise out of or are
caused by Globix's culpable negligence or willful misconduct.
13.10 INDEMNIFICATION PROCEDURE. The indemnification obligations of
subsections 13.8 and 13.9 are conditioned upon:
A. prompt notice of the claim (to the extent known by the indemnified party)
to the indemnifying party;
B. control of the defense of the claim by the indemnifying party; and
C. assistance by the indemnified party in the defense at the indemnifying
party's expense.
13.11 RELATIONSHIP OF PARTIES. The parties are independent contractors and this
Agreement does not establish any partnership, joint venture, employment,
franchise or agency relationship between them.
13.12 SEVERABILITY. Should any provision of this Agreement be held to be void,
invalid, or inoperative, the remaining provisions of this Agreement shall not
be affected and shall continue in effect and the invalid provision shall be
deemed modified to the least degree necessary to remedy such invalidity and
maintain the parties' original intent.
13.13 NO WAIVER; ALL RIGHTS CUMULATIVE. Failure to enforce any provision of this
Agreement shall not be construed as a waiver. The parties' rights shall be
deemed cumulative, such that the exercise of one shall not preclude the
exercise of others.
13.14 THIRD PARTY BENEFICIARIES. The parties do not intend any provision of
this Agreement to be enforceable by or to benefit any third party.
13.15 PERMISSIBLE DOWNGRADES. Client may, upon thirty (30) days prior written
notice, elect to downgrade its Committed Information Rate (CIR), subject to CIR
minimums for each Service facility. Upon such election, Client may not further
downgrade for the succeeding twelve (12) months, and any termination charge
within six (6) months of such downgrade will be based upon the CIR in effect
immediately prior to such downgrade.
Page 3 of 5
13.15 Intellectual Property Rights. Globix shall remain the sole owner of and
retain all right, title and interest in any Service, technical information
and/or intellectual property rights (IPR) provided to Client hereunder,
including, without limitation, all trademark, trade names, service marks,
copyrights, computer programs, general utility programs, software, methodology,
databases, specifications, systems designs, applications, enhancements,
documentation, manuals, know-how, formulas, hardware, audio/visual equipment,
tools, libraries, discoveries, inventions, techniques, writing, designs and
other IPR either used or developed by Globix or its agents in connection with
the provision of Service hereunder ("Globix Technology"). Any Globix Technology
will not be work for hire. In return for payment of all fees and charges. Globix
grants to Client a royalty free, non-exclusive, non-transferable, non-assignable
license to use any IPR provided with Service hereunder. Globix shall be free to
provide similar IPR to other parties and shall retain the right to unrestricted
use of any data, any and all related concepts, know-how, techniques or IPR
either acquired or developed as a result of this Agreement.
13.17 SUPPLEMENTAL TERMS. The terms contained in any Exhibit I, SLA, SOW or
other related documents are intended to supplement this Agreement's terms.
13.18 HEADINGS. The titles and headings of the sections and subsections in this
Agreement are intended solely for convenience of reference and are not intended
for any other purpose whatsoever, or to explain, modify or place any
construction upon or on any of this Agreement's provisions.
13.19 SURVIVAL. The following sections of this Agreement shall survive
termination. Section 3, Section 5, Section 7, Section 8, Section 10.3 and
Section 13.
13.20 GOVERNING LAW & JURISDICTION. This Agreement shall be governed by the
laws of the State of New York applicable to contracts to be fully performed
therein. The jurisdiction and venue for actions related to this Agreement shall
be the State and Federal Courts located in New York County, New York. Provided,
that Globix may bring an action in such Courts, or in the jurisdiction where
Client's principal place of business is located.
13.21 ENTIRE UNDERSTANDING. This Agreement and any Exhibit I, SLA, SOW or other
related documents executed hereunder, constitute the parties' entire
understanding and supercede any oral representations, understandings and offers
related to the subject matter hereof. This Agreement can be modified in writing
signed by both parties.
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the date first above written.
GLOBIX CORPORATION CLIENT: Digital Impact
------------------------
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------- ----------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
--------------------- --------------------------
Title: GM - Santa Xxxxx Title: VP, Operations & IT
-------------------- -------------------------
Page 4 of 5
EXHIBIT A
GLOBIX STANDARD SERVICE LEVEL AGREEMENT (vA2.01)
NOTICE TO ALL CLIENTS: TO QUALIFY FOR THE BELOW SET FORTH ENTITLEMENTS CLIENT
MUST FULLY COMPLETE ALL GLOBIX REQUIRED CLIENT CONTACT INFORMATION FORMS.
1. NETWORK AVAILABILITY AND UPTIME. Globix guarantees one hundred (100%)
percent Backbone Network Uptime with at least ninety-nine (99%) percent
sustained Packet Throughput (PT). To determine compliance, measurements are
taken on a continual basis on the Globix U.S. Domestic Backbone Network between
various combinations of any two of our Points of Presence (POPs).
A. Network availability refers to the ability of a Client to access the Globix
Backbone Network.
B. Globix measures latency on the Globix Backbone Network. These measurements
are taken as round trip times between core routers within the Globix POP
facilities in the continental United States. Globix guarantees an average round
trip latency of not more than one hundred and twenty (120ms) milliseconds. If
this standard is not met, Globix will credit the Client as detailed in Section
6.
C. Network Unavailability is defined as a packet loss in excess of fifty (50%)
percent for fifteen (15) consecutive minutes or more or one that exceeds one
(1%) percent for two (2) or more consecutive hours on the Globix Backbone
Network. Periodically, Globix will upgrade or find the need to repair or replace
vital network equipment which interruptions are foreseeable events common to all
First Tier network providers. Neither these maintenance events, necessary for
providing a consistently high level of service, nor client caused outages or
disruptions beyond Globix's control are considered "Network Unavailability" as
covered by this SLA.
D. Clients must report Network Unavailability of longer than fifteen (15)
consecutive minutes or the aforementioned packet loss to Globix Client Support
Center within forty-eight (48) hours of the event. If the event reported by the
Client is confirmed by Globix Customer Service, the Client will receive a
pro-rated service credit as detailed in Section 6. However, the total of any
credits granted for any twenty-four (24) hour period may not exceed one (1) full
day's pro-rated fee.
E. Network Unavailability for Point to Point Leased Line Dedicated Access
Clients caused by a failure due to the Local Exchange Center (LEC) is covered by
this SLA for any service with a Globix ordered local loop circuit. Globix will
use industry standard efforts to remedy any circuit failures when working with
the LEC. The pro-rata discount for this type of outage is limited to Internet
Port access fees only and will be applied to Client's invoice as described in
Section 6.
F. Network Unavailability for Frame Relay and Digital Subscriber Link Service
caused by a failure due the to LEC Frame Relay Network or LEC (all circuits, is
not covered by this SLA and Globix will not be liable for same.
2. HARDWARE AND SOFTWARE MONITORING AND UPTIME. Equipment not owned and
operated by Globix is not directly monitored. However, indirect monitoring is
provided in the form of a standard Ping Test performed every three hundred (300)
seconds to one (1) IP address per Client service account. In the event that two
(2) consecutive Ping Tests fail, Globix will notify Client in accordance with
the standard notification policy detailed in Section 3. However, Globix will not
take any corrective action unless a Maintenance Agreement between the parties is
in effect.
3. NOTIFICATION OF OUTAGES AND SERVICE INTERRUPTION EVENTS. Fifteen (15)
minutes after an outage is officially recorded, which occurs when the second
Ping Test fails, Globix will contact Client's designated representative by
e-mail, phone, or pager. Clients reporting service interruption events or
outages of any kind may use the "Single Point of Contact" local support
telephone number for access to the twenty-four (24) hour Support Group.
4. ACCESS TO STATISTICS. Client will have access to a public web page
detailing Globix Backbone Network availability and latency statistics. Clients
may enter separate agreements for additional statistics accessible through
private web pages with Client specific usage statistics as detailed in that
agreement.
5. INSTALLATION INTERVAL GUARANTEE. If Globix is unable to meet the standard
installation interval for any Service, and Client has been billed for the full
installation fee (i.e., not discounted), Globix will credit Client's account
with fifty (50%) percent thereof excluding any local loop installation charges.
Since Client may choose to purchase one of several levels of expedited
Installation Service, if Globix fails to meet the purchased installation
deadline, Globix will discount the expedite fee to the cost associated with
whichever interval it meets. For example, if Client orders a "Rush" installation
package and Globix meets the "Standard" interval, Globix will refund the
difference between the "Rush" and "Standard" install fee. In order to qualify
for this installation guarantee, Client's account must be in good standing. All
these entitlements are subject to Globix's performance not being precluded by
Client created or force majeure events.
6. WARRANTIES AND DISCLAIMERS BY GLOBIX. Service Level Warranty. In the event
Client experiences any of the following and Globix determines in its reasonable
judgment that such inability was caused by Globix's failure to provide Internet
Data Center Services for reasons within Globix's reasonable control and not as a
result of any action or inaction of Client or any third parties (including
Client equipment and/or third party equipment), Globix will, upon Client's
request in accordance with Section 6C., credit Client's account as described
below:
A. Inability to Access the Internet (Downtime). If Client is unable to transmit
and receive information from Globix's Internet Data Centers (i.e., Globix's LAN
and WAN) to other portions of the Internet because Globix failed to provide
Internet Data Center Services for more than fifteen (15) consecutive minutes,
Globix will credit Client's account the pro-rata Globix connectivity charges
(i.e., all bandwidth related charges) for one (1) day of Service, up to an
aggregate maximum credit of connectivity charges for seven (7) days of Service
in any one calendar (1) month. Globix's scheduled maintenance of the Internet
Data Centers and Internet Data Center Services, as described in the Policies and
Procedures, shall not be deemed to be a failure of Globix to provide Internet
Data Center Services. Pro-rata daily credits are limited to one full day's
credit per twenty-four (24) hour Service period.
B. Packet Loss and Latency. While Globix does not proactively monitor the
packet loss or transmission latency of specific Clients, Globix does monitor the
packet loss and transmission latency within its LAN and WAN. If Globix discovers
(either from its own efforts or after being notified by Client) that Client is
experiencing packet loss in excess of the level set by the SLA purchased by
Client ("Excess Packet Loss") or transmission latency in excess of one hundred
and twenty (120ms) milliseconds round trip time (based on Globix's measurements)
between any two POPs within Globix's U.S. network (collectively, "Excess
Latency", and with Excess Packet Loss "Excess Packet Loss/Latency"), and Client
notifies Globix (or confirms that Globix has notified Client), Globix will take
all actions necessary to determine the source of the Excess Packet Loss/Latency.
(i) Remedy of Excess Packet Loss/Latency. If the excess Packet Loss/Latency
remedy is within the sole control of Globix, Globix will remedy the Excess
Packet Loss/Latency within two (2) hours of determining the source of the
Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused
from outside of the Globix LAN or WAN, Globix will notify Client and will
use industry standard efforts to notify the party(ies) responsible for the
source and cooperate with it/them to resolve the problem as soon as
possible.
(ii) Failure to Determine Source and/or Resolve Problem. If Globix is unable to
determine the source of and remedy the Excess Packet Loss/Latency within
the time periods described above (where Globix was solely in control of the
source), Globix will credit Client's account the pro-rata Globix
connectivity charges for one (1) day of Service for every two (2) hours
after the time periods described above that it takes Globix to resolve the
problem, up to an aggregate maximum credit of connectivity charges for
seven (7) days of Service in any one (1) month.
C. NOTE: CLIENT MUST REQUEST CREDIT. To receive any applicable credits, Client
must notify Globix Customer Service within two (2) business days from the time
Client becomes eligible to receive a credit or forfeit its right to receive a
credit. Globix will contact Client to review the status of the credit request
and to determine the applicable credit, if any, due Client.
D. Remedies Not Cumulative - Maximum Credit. In the event that Client is
entitled to multiple credits arising from the same event, whether under this SLA
or any other SLAs, such credits shall not be cumulative. Client shall be
entitled to receive only the maximum single credit available for such event. In
no event will Globix be required to credit Client in any one (1) calendar month
Globix connectivity charges in excess of seven (7) days of Service. A credit
shall be applied only to the month in which the incident took place. Client
shall not be eligible to receive any credits for periods during which Client
received any Service free of charge.
E. Termination Option for Chronic Problems. If, in any single calendar month,
Client would be able to receive credits totaling fifteen (15) or more days (but
for the limitation in subparagraph D above) resulting from three (3) or more
events during such calendar month or, if any single event entitling Client to
credits under subparagraph A exists for a period of eight (8) consecutive hours,
then, Client may terminate the applicable Service for cause and without
termination fee by notifying Globix within five (5) days following the end of
such calendar month. Termination will be effective thirty (30) days after
receipt of such notice by Globix.
Page 5 of 5
[GLOBIX LOGO] GLOBIX CORPORATION MASTER SERVICE AGREEMENT ADDENDUM
--------------------------------------------------------------------------------
The changes, deletions and/or additions in this addendum shall apply to the
Master Service Agreement dated September 25, 2002 by and between the parties
hereto and are referenced by paragraph more specifically as follows:
1. In the DEFINITIONS section for the definition of Goods at the end thereof
insert "by Globix."
2. In Section 3.2 on the third line thereof after "unpaid" insert "and
undisputed" and commencing at the end of the penultimate line to the end
delete "and Client shall pay all collection costs including reasonable
attorneys fees."
3. In Section 3.5 on the second and third lines thereof after "tariff" insert
"and" and delete "or similar circumstances"; on the third and fourth lines
thereof delete "thirty (30)" and insert "one hundred and twenty (120)"; at
the end thereof insert "provided, however, after the first thirty (30) days
Client shall pay any such increased price"; and add: "Provided, further,
Globix shall provided reasonable evidence of the cost at time of contract
and any price increase allowing Client to audit same.".
4. In Section 5.1 on the first and second lines thereof delete "As security
for such payment" and insert "As security for payment of any Goods sold by
Globix to Client,".
5. In Section 6.1A(ii) on the second line thereof after "requests" insert
"provided that Client has approved in writing of such additional fees or
charges".
6. In Section 6.1D on the ninth and tenth lines thereof delete "Client shall
be solely responsible" and insert "Globix shall have no responsibility" and
at the end of Section 6.1D add: "Globix will maintain insurance with the
same levels or higher than stated above.".
7. In Section 6.2 on the second line thereof after "Content" delete ", and
that" and insert "or".
8. In Section 6.3 at the beginning thereof after the title insert "A"; on the
second line thereof after "Procedures" insert "(Currently set forth under
two headings as follows: (i) Facilities Policies -- all US Versions:
Preparation and Installation of Client Equipment, Physical Access Policy,
Internet Data Center House Rules, Property Removal Policy, Fire Emergency
and Evacuation Policy and Security System and (ii) Technical Documents --
all US Versions: Network Maintenance Windows, Acceptable Use Policy, IP
Address Request, Bandwidth Statistics Reporting, Online Customer Support
Center, E-Mail Notification of Service Requests, Border Gateway Protocol,
Service Level Management: Escalation Policy, Peering Policy, Billing
Overview, Billing, Billing Credits and Billing -- Sample Invoices; on the
third line after the second "time" insert", provided, however, in the event
Globix materially changes its policies and procedures, which changes have a
material impact on Client's use of the Service under the prior policies and
procedures the parties shall negotiate a mutually acceptable resolution to
any inconsistencies; and at the end of Section 6.3 add the following two
subsections
B. "Client previously was paying $6,000/mo for SCH fees based on threshold
of 1,000 complaints/mo. In that Client's complaint experience based on its
current business model has been significantly lower and in consideration of
its renewal of its Service for a twenty-four (24) month term, Globix hereby
waives any SCH fees providing Client's complaint level remains reasonably
consistent with past experience. In the event (i) its complaint level
exceeds 1,000/mo and Client's email volume to complaint ratio exceeds 1
Mil:350 or (ii) if Client changes its business model and such complaints
are still in accordance with the Globix Acceptable Use Program, Globix
shall have the right to assert its then current SCH fee program.
C. "Client shall have 48 hours from the time that notice of a violation of
the "Policy on Spam" section of the Globix Acceptable Use Policy ("AUP") is
sent, to respond to and cure such violation in order to prevent future
violations, and when such violation(s) result in the number of complaints
referenced in Section 6.3B(i) or (ii) above, Globix may invoke its rights
under the AUP. This notice period shall not apply to any violation which,
at the time of the incident, (i) is a violation of any law, rule or
regulation, whether Federal, State, local or any other jurisdiction; (ii)
if the 48 hour cure notice has a materially damaging impact on Globix's
business, in the reasonable discretion of Globix; or (iii) is contrary to
any order or direction of a governmental agency."
9. In Section 7.1 at the end thereof add "Globix also represents and warrants
that it will maintain (i) the level of physical security at its facility at
least at current levels in all material respects; (ii) the air temperature
inside Client's enclosure at or below 72 degrees F to be measured at the
perforated floor tile level - failing to do so with resultant temperatures
of 72-75 degrees F for an hour or more in a day will entitle Client to one
(1) day service credit and temperature above 75 degrees F for an hour or
more in a day will entitle Client to terminate the applicable Service
without termination fees on sixty (60) days written notice and payment of
accrued payment obligations provided said notice is given within thirty
(30) days of the incident; (iii) sufficient airflow such that if airflow is
less than 325 cubic feet per minute per one (1) unrestricted perforated
floor tile for an hour or more in a day will entitle Client to terminate
the applicable Service without termination fees on sixty (60) days written
notice and payment of accrued payment obligations provided said notice is
given within thirty (30) days of the incident; and (iv), when Client's cage
complies with the "Hot Air/Cool Air" Aisle conventions set forth on the
attached diagram entitled Digital Impact Future Cage Redesign, hereby
incorporated by reference herein, Globix's obligation in (ii) above will be
modified with respect to the temperature measurement point from the floor
tiles to the server inputs.
10. In Section 7.2 on the penultimate line thereof delete "subject to the
termination liability".
11. In Section 8.1A at the beginning thereof insert "EXCEPT FOR LIABILITIES
ARISING FROM GLOBIX'S INDEMNIFICATION OBLIGATIONS HEREIN OR GLOBIX'S
WILLFUL MISCONDUCT,"; on the fourth line delete "TORTIOUS CONDUCT" and on
the thirteenth line before "IN NO EVENT" insert "EXCEPT FOR LIABILITIES
ARISING FROM GLOBIX'S INDEMNIFICATION OBLIGATIONS HEREIN OR GLOBIX'S
WILLFUL MISCONDUCT,".
12. In Section 9.1A(i) at the end thereof add "and has not cured such failure
to comply within thirty (30) days of receiving written notice from Globix
describing such failure".
- 2 -
13. In Section 9.1B on the fourth line, after "governmental entity" add ";
provided that, whenever possible and other than in an emergency,
Globix shall notify Client at least twenty-four (24) hours prior to
suspending Service pursuant to this Section 9.1B and try to
accommodate Client's requests in scheduling such suspension of
Service."
14. In Section 10.1 at the end of the caption insert "A."; in (i) on the
second line thereof delete "five (5)" and insert "thirty (30)"; in
(ii) on the second line delete "fourteen (14)" and insert "thirty
(30)"; in (iii) at the end thereof add "and Client refuses to pay its
full monthly recurring fees"; in (iv) the end insert "provided that
Globix shall provide written notice as soon as it knows there is a
likelihood that any such regulatory decision or governmental order
will occur, and in any event, shall provide at least one hundred
twenty (120) days written notice if possible; and create a new
subsection B as follows: "B. Client may terminate this Agreement if
Globix files for bankruptcy, reorganization or fails to discharge an
involuntary petition therefor within sixty (60) days after filing of
any such event. Any termination hereunder shall relieve Client from
any termination charges provided however, accrued payment obligations
are due and payable prior to any such termination."
15. In Section 10.2 on the second line thereof delete "thirty (30)" and
insert "ninety (90)".
16. In Section 10.3 on the second and third lines thereof delete
"seventy-five percent (75%)" and insert "fifty percent (50%)"; on the
sixth line after "all" insert "undisputed"; and on the seventh line
delete "without" and insert "with thirty (30) days advance written"
and after "notice" insert "and failure to cure"
17. In Section 13.2 on the third line thereof, delete "or managed
services".
18. In Section 13.3 on the third line, delete "two (2) years" and replace
with "one (1) year".
19. In Section 13.5 delete the last sentence and insert: "Notwithstanding
the foregoing, either party may assign or transfer this interest
without notice to an affiliate of said party. In the case of a merger,
sale of assets, consolidation, stock purchase, or similar transaction,
the party undergoing such transaction shall provide notice to the
other party at least ninety (90) days prior to the consummation of
such transaction. During such period, the other party shall have the
right to terminate this Agreement if any such successor in interest
would reasonably be detrimental to the material operation of said
other party's business, without penalty or early termination fees by
providing written notice of such intent to terminate and paying any
accrued payment obligations."
20. In Section 13.7 on the third line thereof after "website" insert "with
Client's prior written consent".
21. In Section 13.8 on the fifth line thereof, delete "(including
liability for infringement of a third party's intellectual property
rights) for" and insert "arising from" (i) the infringement of a third
party copyright, patent, trademark, trade secret or other intellectual
property right in connection with the Service or Goods provided by
Globix, or (ii)".
22. In Section 13.9 on the last line thereof, delete the word "culpable".
-3-
23. In Section 13.20 on the second line thereof delete "New York" and insert
"California" and on the fourth and fifth lines delete "New York County, New
York" and insert "Santa Xxxxx County, CA".
EXHIBIT A
1. In Section 6A, Section 6B(ii) and Section 6D where the entitlement to
credits is limited to seven (7) days, delete same and insert "thirty (30)
days".
2. In Section 6E on the last line thereof delete "thirty (30)" and insert "up
to one hundred and twenty (120)".
CREDIT APPLICATION
1. In any instance where the Credit Extension Terms and Conditions are
contrary to either the Agreement or this Addendum, same shall be deemed
amended to be consistent with the Agreement and/or this Addendum.
GUARANTY OF PAYMENT
1. This document shall be deemed inapplicable to Client. Client shall be
entitled to either place a large "X" over the entire page or leave it
blank, at its option.
In all other respects the Master Service Agreement shall be in full force and
effect.
IN WITNESS WHEREOF the parties hereto have executed this Addendum by their duly
authorized representatives effective as of the latest of the two dates below.
Globix Corporation Digital Impact, Inc.
000 Xxxxxx Xxxxxx 000 Xxxxx Xxxx
Xxx Xxxx, XX 00000 Xxx Xxxxx, XX 00000
Date: 9/27/02 Date: 9/25/02
------------------------ --------------------------
By /s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxx Xxxxxxxxxxx
----------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxxxxxx
Vice President & Vice President, Operations & IT
General Manager
-4-
