Exhibit 10.6
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 SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ZIPLINK - WEBTV
NETWORK SERVICES AGREEMENT
This Agreement is made and entered into on this 23RD DAY OF OCTOBER, 1996
("Effective Date"), between ZipLink, LLC ("ZipLink") whose address is ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and WebTV Networks Inc. whose address is
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WNI"). The parties hereto agree
and bind themselves as follows:
1. SERVICE
1.1 NETWORK SERVICES: ZipLink shall sell, and WNI shall purchase,
telecommunications services for the interconnection of WNI's
end users to WNI's facilities. These services consist of two
main components:
1.1.1 Dialup Network Services: ZipLink shall provide dialup
access via standard telephone lines between WNI's end
users and ZipLink's facilities as more fully described
in Schedule A.
1.1.2 Connectivity between ZipLink and WNI: ZipLink shall
provide connectivity between ZipLink's dialup network
facilities and WNI's facilities as more fully described
in Schedule C. The traffic shall be delivered through
dedicated lines between ZipLink's facilities and WNI's
facilities; special provisions may be made for
delivering some or all of the traffic through the
Internet, as described in Schedule C. The cost for
establishing and maintaining such connectivity shall be
paid by the parties as set forth in Schedule C.
1.2 NETWORK PERFORMANCE: ZipLink shall use commercially reasonable
efforts to operate its network services seven (7) days per
week, twenty four (24) hours per day, each day of the year.
ZipLink's telecommunications services provided to WNI shall be
of a quality usual and customary in the industry for national
Internet access providers.
1.3 NETWORK INTEROPERABILITY: Both parties agrees to comply with
the technical requirements listed in Schedule A.
1.4 NETWORK COVERAGE: ZipLink currently maintains a local dial
footprint of 57 local access numbers in 21 major metropolitan
areas in 10 states, as described in Schedule D. ZipLink will
not reduce this local dial coverage below 90% of the existing
local dial coverage, based on the total population of the
areas listed in Schedule D, for a period greater than 60 days.
ZipLink shall provide WNI with 30 days notice prior to
discontinuing an existing local access number and/or a
particular geographic location. If ZipLink breaches any
obligation of this Section 1.4, WNI shall have the right to
renegotiate all terms and conditions of this Agreement. If
such renegotiation does not result in an agreement between the
parties within 30 days, WNI shall have the right to
immediately terminate this Agreement. In addition, upon the
occurrence of any decrease in local dial
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coverage, WNI shall have the right to a pro rata decrease in
its Commitment based on the total population of the areas
listed in Schedule D, notwithstanding the requirement of
Section 7.
1.5 CUSTOMER SERVICE AND TECHNICAL SUPPORT: WNI is responsible for
all end user customer support, billing, and collections.
ZipLink shall not be responsible of any hardware and software
requirements of WNI's end-user customers to connect with
ZipLink's facilities. ZipLink's relationship under this
agreement is solely with WNI and not with any WNI end user.
ZipLink shall provide WNI with a toll-free number and a pager
number to report problems relating to network availability.
The toll-free and pager numbers shall be used only by WNI and
shall not be released to WNI's customers. Such telephone
assistance shall be available to WNI on a continuous basis, 24
hours per day, 7 days per week, for each day of the year, and
shall be provided by a qualified technician. ZipLink shall use
commercially reasonable efforts to begin analysis of any
request for assistance or report of problems within one half
hours of any call made by WNI for such purpose. ZipLink shall
make all repairs required for the proper functioning of its
systems as soon as commercially reasonable after the discovery
thereof or WNI's notice to ZipLink thereof. ZipLink shall
actively monitor the performance of its systems, and shall
notify WNI promptly of any condition which materially
adversely affects such performance. ZipLink will use best
efforts to provide WNI with advance 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 WNI's ability to service its end
users.
1.6 RESALE: The services provided by ZipLink are for the use of
WNI customers only, and WNI will not resell the services
provided by ZipLink hereunder to any other party for resale by
such party except with the prior written approval of ZipLink,
which approval shall be in the sole discretion of ZipLink, and
only if such party agrees in writing to all of the terms and
conditions of this Agreement. WNI shall not at any time or in
any manner represent itself as the operator of ZipLink.
1.7 PROJECT MANAGEMENT: Prior to the termination of the testing
period provided in Section 6, each party will assign a project
manager for the term of the contract to serve as the other
party's primary single point of contact.
1.8 REPORTING: Within five business days of the end of each
calendar month, and in no event later than the date that any
invoice pursuant to Section 2.2 is delivered, ZipLink shall
provide WNI with monthly usage data detailing network access
by WNI's customers, on which ZipLink shall base its billing to
WNI.
2. PRICING AND BILLING
2.1 PRICING: The prices in Schedule B apply for all services provided by
ZipLink under this Agreement. For all other services which WNI may
request, ZipLink's list prices apply unless other prices have been
specifically negotiated. WNI 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 gross income of
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ZipLink.
2.2 INVOICES: ZipLink shall provide to WNI a monthly invoice for all
sums due pursuant to this Agreement, and WNI agrees to pay all such
invoices to ZipLink no later than thirty (30) days after the receipt
of such invoices . Any disputed amounts shall be resolved by
arbitration pursuant to the provisions of Paragraph 11. Any payment
made more than 30 days after due is subject to a charge of the
lesser of 1.5% per month or the maximum legal interest rate.
2.3 NETWORK AVAILABILITY: WNI shall maintain and provide to ZipLink
on a monthly basis accurate records (by individual point of
presence) as to each telephone call by WNI customers whose call
is routed to ZipLink's network for internet access via dialup
service. If the Connection Success Ratio for any dialup POP is
less than * for any given month, then ZipLink shall give a credit
to WNI in an amount equal to the Network Availability Credit for
such dialup POP. The Connection Success Ratio shall be expressed
as a percentage and shall be equal to the ratio of Successful
Connections (as defined herein) to Total Connections (as defined
herein). A Successful Connection is any call of a WNI customer to
a ZipLink dialup POP which successfully connects to ZipLink's
facilities for internet access (e.g., no busy signal was
received). A Routed Connection is any call of a WNI customer
which is initially routed to a ZipLink dialup POP for internet
access but which must be rerouted to another internet service
provider because a Successful Connection was not made. Total
Connections shall be equal to the sum of Successful Connections
and Routed Connections. The Network Availability Credit shall be
equal to (a) * minus the Connection Success Ratio times (b) the
Individual POP Access Ratio (as defined herein) times (c) the
monthly fee payable to ZipLink for such month. The Individual POP
Access Ratio shall be expressed as percentage and shall be equal
to the ratio of the number of WNI customer receiving access via
such dialup POP bears to the total number of WNI customers
receiving access via all ZipLink dialup POP. For example if the
Successful Connection Ratio is * for all users of the NY City
POP, and if the NY City POP represents 10% of all the WNI/ZipLink
customers (i.e., the Individual POP Access Ratio) and the fee for
such month for all WNI/ZipLink customers is $200,000, then
ZipLink will reduce that month's total fee by * * 10% *
$200,000). ZipLink will maintain a schedule of the percentage of
customers using each POP. Notwithstanding the foregoing, no
Network Availability Credit will be due or received if the total
dollar amount of services provided by ZipLink for such month
exceeds * of the Commitment (as defined herein) for such month.
The Network Availability Credit is WNI's sole remedy for any
problems with Routed Connections. Any claim for a Network
Availability Credit must be made within 30 days of the end of the
month for which such request is made. ZipLink may audit WNI
records to confirm the appropriateness of any request for a
Network Availability Credit.
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INDEMNIFICATION
WNI agrees to have all of its customers enter into an end user agreement (the
"End User Agreement') in substantially the form provided to ZipLink, the receipt
and adequacy of which ZipLink acknowledges. In addition to its rights under
Section 5.1.2, ZipLink may deny or refuse connection or access to any ZipLink
dialup POP to any WNI customer who violates the End User Agreement or notifies
ZipLink that it has a claim against ZipLink or that ZipLink is or might be
responsible to such customer for damages related to any services provided to
such customer through WNI. WNI shall defend, indemnify, and hold harmless
ZipLink against any claims, costs or expenses (including reasonable attorney's
fees) arising out of, relating to or resulting from (a) any breach of this
Agreement by WNI, (b) any use by WNI of ZipLink's services in violation of this
Agreement or (c) any act or omission of any WNI customer which constitutes a
breach of the End User Agreement. ZipLink shall defend, indemnify, and hold
harmless WNI against any claims, costs or expenses (including reasonable
attorneys' fees) arising out of, relating to or resulting from any breach of
this Agreement by ZipLink other than claims of third parties. The
indemnification obligations contained in this Section 3 are the exclusive rights
and remedies of the parties in connection with this Agreement and the services
described herein and the indemnification obligations are limited as described in
Section 10.
4. TERM
The term of this Agreement shall commence on the Effective Date hereof and shall
continue until the date which is three (3) years from the date hereof, which
term shall be automatically renewed for additional one year terms, provided that
neither party has delivered to the other party a written notice of intent not to
renew for the forthcoming term. Such notice of intent shall be delivered not
less than 120 days in advance of the end of the current term.
5. TERMINATION
5.1 This Agreement may be terminated as follows:
5.1.1 Either party may terminate its obligations under this
Agreement for cause, without penalty, in the event that the
other party breaches any material term of this Agreement and
the breaching party does not cure such breach within 30 days
of its receipt of written notice from the non-breaching party
of its intent to terminate, which notice shall describe
clearly the breach giving rise to such termination. A payment
breach by WNI is covered by Section 5.1.3 and no notice and
cure right is applicable to such breach.
5.1.2 ZipLink may terminate its obligations under this Agreement
without penalty and with 10 days written notice to WNI if a
WNI Customer violates the End User Agreement and such
violation is not cured to the satisfaction of ZipLink within
seven (7) days after written notice thereof by ZipLink;
provided however that such 10 day notice period may not be
given until the expiration of the seven (7) day cure period
provided. ZipLink acknowledges that WNI's cancellation of the
subscription of a customer who violates the End User Agreement
is a sufficient cure. ZipLink may terminate its obligations
under this
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Agreement without penalty if any amounts due and owing by WNI
remain unpaid 45 days after the date of invoice.
5.1.3 Either party may terminate this Agreement for convenience and
without cause after giving the other party 120 days prior
written notice. In the event of any termination under this
Section 5.1.4 by either party, ZipLink will maintain service
availability through a ramp-down period which will start at
the end of the 120 day notice period, or sooner if mutually
agreed. The party so terminating for convenience will
determine the number of subscribers to be removed each month,
which will be conducted according to the following schedule:
# subscribers max # subscribers ramped
remaining at the end of the month down in the following month
--------------------------------- ---------------------------
1 - 50,000 10,000
50,001 - 100,000 20,000
100,001 - 250,000 40,000
251,001 - 350,000 70,000
351,001 - 500,000 100,000
500,001 - 750,000 150,000
> 750,001 200,000
Eight months after the beginning of the rampdown, any
remaining WNI users may be removed.
5.1.4 Either party can accelerate this ramp-down schedule with the
written consent of the other party. WNI will be responsible
for, and shall pay for, all services provided until the end of
the ramp down period.
5.2 The exercise of any right of termination under Section 5.1.1, 5.1.2
or 5.1.3 shall be in addition to, and not in lieu of, any other
rights and remedies of the nonbreaching party hereunder.
Notwithstanding anything to the contrary in this Agreement, the
provisions of Sections 3, 9, 10 and 15 shall survive the expiration
or termination of this Agreement for any reason.
6. TESTING
During the period of 60 days following execution of this Agreement, both parties
shall use all commercially reasonable efforts to integrate their respective
networks to provide the connectivity described in Schedule C and shall conduct
testing to assure such connectivity. If either party shall reasonably declare
the testing results to be unsatisfactory at the conclusion of the 60 day period,
then the parties shall have another 20 days to correct the problem; and if such
correction is not completed to the mutual and reasonable satisfaction of the
parties within such time, then either party shall be entitled, upon written
notice to the other party, to terminate this Agreement without further liability
to either party. If no such notice is given within 80 days after the execution
hereof, satisfactory completion of technical testing shall be presumed, and the
contract shall remain in full force and effect. Monthly minimum Commitments as
set forth in Section 7 will begin to accrue from the date of the satisfactory
completion of testing. Billing will begin 30 days after the termination of
testing, at the rates described in Schedule B. If testing is completed during
the course of a month, the first month's
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minimum Commitment will be prorated to reflect the shortened month.
7. COMMITMENTS
At the end of the testing period provided in Section 6, WNI shall make a
dollar commitment (a "Commitment") for the remainder of the then current
month and a dollar Commitment for the following month. Thereafter, on the
first day of each month, WNI shall provide a Commitment for the next month.
Each Commitment shall be WNI's minimum payment to ZipLink for the services
provided by ZipLink under this Agreement for such month whether or not such
services are used by WNI or its customers. For example, if the testing period
finishes on October 10, 1996, on that date WNI would provide a Commitment
for the period between October 11 and October 31 and a Commitment for the
month of November 1996. Before or on November 1, 1996, WNI would then provide
a Commitment for the month of January 1997. When WNI provides a new
Commitment to ZipLink, ZipLink shall, within five business days of receipt of
a proposed Commitment from WNI, accept all or some of the proposed Commitment
by notice to WNI provided. however that ziplink shall not accept a commitment
that is lower than the service provided to wni by ziplink in the immediately
preceding month. Failure to notify WNI within 5 business days constitutes
acceptance by ZipLink of WNI's proposed Commitment.
All Commitments for a specific month shall not be lower than the Commitment
ACCEPTED BY ZIPLINK For the immediately preceding month.
*
For instance, if the testing period ends on December 15, 1996, WNI would have no
minimum requirement for the period between December 15 and December 31, but
would have to commit for at least $30K for the month of January.
Commitments cover the cumulative traffic coming from the "Per Subscriber"
pricing plan and the "Per Hour" pricing plan. Commitments do not require a
dollar breakout between the two pricing plans.
8. FORECASTS
WNI shall provide ZipLink with initial and periodically revised six-month
forecasts of its expected usage, including the number of users connecting under
the "Per Subscriber" pricing plan (as defined in Schedule B) and the number of
connection hours under the "Per Hour" pricing plan. WNI shall use its best
efforts to provide reasonably accurate forecasts, but both parties acknowledge
and agree that such forecasts are not binding.
WNI shall also use its best efforts to provide ZipLink with advance information
as to marketing programs which WNI expects will materially impact future loads,
particularly as to loads in particular geographical locations/POPs.
9. NO PUBLICITY
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Neither party shall disclose the prices and terms of this Agreement, except for
disclosure in confidence to its employees and consultants, accountants,
attorneys, bankers, investors, potential investors, or as required by law.
Neither party shall publicize the existence of this Agreement without the
consent of the other, and in the event of such agreement, all press release
materials shall be reviewed and approved by the other party prior to the
publication of such press release materials.
10. LIMITATION OF LIABILITY
ZIPLINK MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE
SERVICE AND PRODUCTS IT IS PROVIDING. ZIPLINK HEREBY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ZIPLINK WILL NOT BE
RESPONSIBLE FOR ANY DAMAGE SUFFERED BY WNI OR ITS CUSTOMERS AS A RESULT OF ANY
FAILURE OF ZIPLINK NETWORK FUNCTIONALITY, INCLUDING LOSS OF DATA RESULTING FROM
DELAYS, NONDELIVERIES, MISDELIVERIES, OR SERVICE INTERRUPTIONS CAUSED BY
ZIPLINK'S OWN NEGLIGENCE OR ANY ERRORS OR OMISSIONS OF WNI OR ITS CUSTOMERS. USE
OF ANY INFORMATION OBTAINED VIA ZIPLINK'S NETWORK IS AT WNI'S AND ITS CUSTOMERS'
OWN RISK AND ZIPLINK CANNOT GUARANTEE THE ACCURACY OR SECURITY OF ANY NETWORK
CONTENT. ZIPLINK SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR
QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY STATED OR IMPLIED HEREIN, NEITHER
PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY INCIDENTAL, INDIRECT
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND (INCLUDING LOST REVENUES
OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION
WITH OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER SUFFERED BY
THE OTHER OR BY ANY ASSIGNEE OR OTHER TRANSFEREE OF, OR PARTY CLAIMING RIGHTS
DERIVED FROM, THE OTHER, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH
DAMAGES . EXCEPT FOR ZIPLINK'S BREACH OF SECTION 15.1 OR ZIPLINK'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT OR CIRCUMSTANCE SHALL ZIPLINK'S
AGGREGATE LIABILITY HEREUNDER EXCEED THE MAXIMUM AMOUNT PAID BY WNI TO ZIPLINK
FOR SERVICES FOR ANY ONE MONTH PERIOD AND WITH RESPECT TO CLAIMS OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ZIPLINK'S AGGREGATE LIABILITY SHALL NOT EXCEED
THE AGGREGATE AMOUNT PAID BY WNI TO ZIPLINK FOR ANY THREE (3) CONSECUTIVE
MONTHS.
11. GOVERNING LAW
11.1 This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State
of New York without regard to the principle of conflict of laws.
11.2 Any and all disputes arising under or related to this Agreement
shall be submitted to binding arbitration under the rules then
prevailing of the American Arbitration Association, and judgment
upon any award rendered may be entered and enforced in any court of
competent jurisdiction. If any arbitration is brought by ZipLink it
shall be held in San Francisco, California and if brought by WNI
shall be held in Hartford, Connecticut.
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11.3 The party submitting such dispute shall request the American
Arbitration Association to:
(i) Appoint an arbitrator who is knowledgeable in
telecommunications and familiar with the telecommunications
industry and who will follow the substantive rules of law; and
(ii) Require the testimony to be transcribed; and
(iii) Require the award to be accompanied by findings of fact and a
statement of reasons for the decision.
11.4 In the event of any such arbitration or any court action, the losing
party shall pay all reasonable costs of collection, court costs and
attorneys' fees.
12. ENTIRE AGREEMENT
The parties hereto acknowledge that they have read this entire Agreement and
that this Agreement and the exhibits attached hereto constitute the entire
understanding and contract between the parties and supersede any and all prior
or contemporaneous oral or written communications with respect to the subject
matter hereof. This Agreement shall not be modified, amended or in any way
altered except by an instrument in writing signed by the parties.
13. RELATIONSHIP OF PARTIES
The parties to this Agreement are independent contractors. No agency,
partnership, joint venture or employment is created as a result of the
Agreement. Neither party is authorized to bind the other in any respect
whatsoever.
14. BINDING EFFECT
Except as herein otherwise specifically provided, this Agreement shall be
binding upon and inure to the benefit of the parties and their legal
representatives, heirs, administrators, executors, successors and assigns.
15. CONFIDENTIALITY
15.1 The parties agree that all disclosures of confidential and/or
proprietary information during the term of this Agreement shall
constitute confidential information of the disclosing party,
including without limitation all information relating to WNI end
users or usage of ZipLink services by WNI or its end users. Each
party shall use its best efforts to ensure the confidentiality of
such information supplied by the disclosing party, or which may be
acquired by either in connection with or as a result of the
provision of the services under this Agreement. Both parties warrant
that they shall not disclose, use, modify, copy, reproduce, or
otherwise divulge such confidential information. Both parties
further agree to prevent their employees and representatives from
disclosing, using, modifying, copying, reproducing, or otherwise
divulging such confidential information, and shall hold each other
harmless and protect and indemnify the same in the event of any
disclosure by said persons.
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15.2 The provisions of this Section 15 shall not apply to any part of
the confidential and/or proprietary information to the extent
that:
15.1.1 Such information was in the possession of the receiving
party prior to disclosure to it hereunder without any
obligation for confidentiality of such information;
15.1.2 Such information was generally known or otherwise in the
public domain prior to disclosure hereunder, or becomes
so known subsequent to such disclosure through no fault
of the receiving party;
15.1.3 Such information was received by the receiving party
from a third party not under an obligation to the owner
of such information not to disclose it;
15.1.4 Such information was independently developed by the
receiving parry without the benefit of the other party's
confidential and/or proprietary information;
15.1.5 Such information was approved for release by written
authorization of the disclosing party;
15.1.6 Such information was disclosed pursuant to the
requirement or demand of a lawful governmental or
political authority, but only to the extent required by
operation of law, regulation or court order.
14. PLURAL/GENDER
Whenever from the context it appears appropriate, each term stated in either the
singular or the plural shall include the singular and the plural, and pronouns
stated in the masculine, the feminine or the neuter gender shall include the
masculine, feminine and neuter. The term "person" means any individual,
corporation, partnership, trust or other entity.
17. SEVERABILTY
If any provision of this Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid, shall not be affected thereby.
18. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which, when taken together, shall constitute one
and the same instrument. it shall not be necessary for all parties to execute
the same counterpart hereof
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19. WAIVER
No failure on the part of either party to exercise, and no delay in exercising,
any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right or remedy granted
hereby or by law.
20. NOTICE
Unless otherwise provided, any notice to be given hereunder shall be effective
on the fifth day after dispatch. Such notice shall be sent by first class mail,
postage prepaid and marked for delivery by certified or registered mail, return
receipt requested, addressed to the parties listed below at their respective
places of business, or at such other addresses of which notice has been given to
the addressing party:
If to WebTV Networks, Inc.:
WebTV Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
cc: ▇▇▇▇ ▇▇▇▇▇, McCutchen, Doyle,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
If to ZipLink:
ZipLink
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Brenner, Saltzman, & Wallrnan
21. NO ASSIGNMENT
This Agreement shall not be assignable by either party hereto without the prior
written consent of the other party, provided that either party may assign this
Agreement in connection with a merger or reorganization or sale or transfer of
substantially all of its business to any party (a "Transfer"). In the event of
an assignment in connection with a Transfer if the non-assigning party has a
reasonable basis for concern about the quality of continued performance under
this Agreement due to the assignee's conflicts of interest or inferior operating
history or financial condition or that the assignee is a competitor of the
non-assigning party, the non-assigning party shall have the option to terminate
this Agreement for convenience by giving 120 days prior notice, with no
ramp-down period, such option to be exercised only within the first 60 days
following such party's receipt of notice of such Transfer.
22. FORCE MAJEURE
No party shall be liable by reason of any failure or delay in the performance of
its obligations due to strikes, riots, fires, explosions, acts of God, war,
governmental action or any other cause which is
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beyond the reasonable control of such party, provided that in the event that a
force majeure described in this Section 22 extends for a period in excess of
sixty (60) days, the other party shall be entitled to terminate this Agreement.
23. COMPLIANCE WITH LAWS
Each party shall comply with all Laws, regulations and other legal requirements
that apply to this Agreement. ZipLink hereby warrants that, to its knowledge, it
has complied with all laws, regulations, and orders relating or pertaining to
the provision of the services to be provided under this Agreement, including
without rotation, all applicable state or federal legislation or rule applicable
to the services in any material respect. To the knowledge of ZipLink, material
permits, licenses, and authorizations required by any regulatory bodies have
been obtained and are in effect for the services.
24. FACSIMILE TRANSMISSION
Parties to this Agreement are authorized to execute the Agreement, and transmit
a signed copy of same via facsimile to the other parties, who hereby agree to
accept and rely upon such documents as if they bore original signatures. The
parties sending such facsimiles hereby acknowledge and agree to provide to the
other parties, within seventy-two (72) hours of transmission, the Agreement
bearing an original signature.
25. NO THIRD PARTY BENEFICIARY
The rights and remedies provided herein are for the exclusive benefit of the
parties hereto and their permitted assignees. No right or benefit of any of the
terms and conditions herein is intended to, or shall, be afforded to any third
party.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the date first above recited.
WEBTV NETWORKS, INC. ZIPLINK, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
Title: President & CEO Title: Manager
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SCHEDULE A
NETWORK INTEROPERABILITY
1. ZipLink shall make its dialup network access facilities available to
WNI's customers via standard telephone lines.
2. ZipLink shall operate a proxy server that can identify access by WNI
customers and forward login attempts from such customers to WNI's
Radius server for authentication, provided that WNI's Radius server can
be reached through the Internet from ZipLink's network, or with
dedicated lines between the parties.
3 . ZipLink shall operate a TCP/IP network that can link WNI's customers
who connect to ZipLink's dialup network access facilities to WNI's
servers, provided WNI's servers can be reached through the Internet
from ZipLink's network, or with dedicated lines between the parties.
4. ZipLink shall provide WNI with applicable Radius software, as it is
required for interoperability with ZipLink's Radius implementation. WNI
will be responsible for any fees to third parties for licensing this
software for the copies used by WNI. In connection with obtaining the
source code for the Radius Software, WNI must agree to reasonable
confidentiality and source code protection requirements of the owner of
the Radius Software and ZipLink.
5 ZipLink's network services shall maintain Radius server
interoperability during the course of the contract.
6. WNI agrees that it shall operate its own Radius server, which will
perform user validation functions, and will maintain this server in a
secure environment. WNI also will maintain this server with reasonably
current versions of the Radius protocols as provided by ZipLink.
7. WNI agrees to assign each end user customer a unique identification
number for billing purposes, and to reasonably cooperate with ZipLink
in establishing the structure of this identification number.
8. WNI and ZipLink each agree to cooperate with the other in identifying
and resolving any security infringements which involve WNI's customers
and ZipLink's network.
9. WNI will impose inactivity time-outs on the WebTV boxes of a maximum of
15 minutes. ZipLink will implement inactivity time-outs of a minimum of
17 minutes for backup purposes, in case the time-out built into the box
does not kick in.
10. It is recognized and agreed that any billing data supplied on an
interim basis (more frequently than monthly) is an estimate and may not
be relied upon for 100% accuracy.
12
SCHEDULE B
DIALUP NETWORK SERVICES PRICING
1. ZipLink shall offer 2 different pricing plans:
o "Per Subscriber" pricing plan"
o "Per Hour" pricing plan"
Whenever a WebTV box connects to ZipLink, WNI shall ensure that the box
uses an ID whose prefix identifies which pricing plan to use to ▇▇▇▇ that
connection (a "Per Subscriber ID" or "Per Hour ID," as applicable).
1.1 "PER SUBSCRIBER" PRICING PLAN
At the end of each month, ZipLink shall count the number of unique Per
Subscriber IDs that were used to connect to the service during that month . A
Per Subscriber ID that was used in a prior month and that was not used in the
month to be billed shall not be accounted for. WNI would then be billed an
amount equal to this number of unique Per Subscriber IDs multiplied by a price
per subscriber defined as follows.
Through March 31, 1997, pricing shall be at * per subscriber per month.
After March 31, 1997, the per subscriber pricing for a specific month shall be
related to the number of subscribers that connected during that month with a Per
Subscriber ID:
NO. OF SUBSCRIBERS AMOUNT PER SUBSCRIBER
*
1.2 "PER HOUR" PRICING PLAN
At the end of each month, ZipLink shall calculate the cumulative numbers of
hours spent on-line by WebTV users that were identified by a Per Hour ID, Each
customer's usage will be calculated in seconds. WNI would then be invoiced an
amount equal to this number of hours multiplied by A price per hour defined as
follows:
The "Per Hour" pricing shall be related to the Commitment made by WNI for
that month as defined in Section 7. This monthly Commitment includes traffic
falling both under the "Per Subscriber" pricing plan and the "Per Hour"
pricing plan.
13
MONTHLY COMMITMENT HOURLY FEE
*
2. If WNI's customers' usage is such that significant network resources beyond
those anticipated are used, ZipLink will propose a schedule for compensation for
the higher usage at least thirty days in advance of its taking effect at the
beginning of a calendar month. In the event that no such schedule has been
agreed upon by the beginning of said calendar month and Peak Users to Port Ratio
(as described below) is less than *, WNI shall be charged and pay a Peak Port
Fee (as defined below) for that month.
The Peak User to Port Ratio is based on the number of ports required to
support WNI's subscribers. To calculate this ratio for a specific month,
ZipLink shall determine the * of use for its non-WNI customers within the
applicable month. The busiest hours are those hours in which the cumulative
time spent by non WNI users on the ZipLink dialup network is the highest.
During these *, ZipLink shall track for each minute the number of ports used
by non WNI users at the beginning of the minute. The total number of ports in
use divided by * shall be the Average Peak Port Usage. The Peak User to Port
Ratio shall be the number of unique WNI subscribers that connected through
ZipLink during that specific month (the "Total WNI Users") divided by the
Average Peak Port Usage.
The number of Excess Ports is the difference between (a) the Average Peak Port
Usage and (b) the quotient of (x) the Total WNI Users divided by (y) *.
The Peak Port Fee in any month is defined as number of Excess Ports multiplied
by *. A mutually agreed upon schedule may replace these extra usage fees at
any time.
14
SCHEDULE C
CONNECTIVITY BETWEEN ZIPLINK AND WNI
ZipLink will provide to WNI:
(1) dedicated access facilities (i.e. leased lines or equivalent
transmission facilities and all equipment required at both ends) to carry the
aggregated traffic from WNI's dial-in customers from ZipLink's location(s) to
WNI's computer server facilities in Palo Alto, CA and
(2) backup access for WNI customer traffic from ZipLink to WNI or from
WNI customers directly to the Internet via ZipLink's connection(s) to the
Internet, including management of routing in accordance with reasonable WNI
requirements to insure routing integrity and reliability under both normal
conditions (utilizing the dedicated connection in described in (1) above) and
fallback conditions in which WNI traffic is routed by ZipLink through
connections to Internet backbone providers and NAPs (well known Network Access
Points).
ZipLink will manage all the access delivery provided hereunder. For the
dedicated access services, ZipLink-provided management will include but not be
limited to: ordering of equipment and circuits, equipment (and router software)
configuration in accordance with WNI requirements; active monitoring of network
equipment for operational status, fault detection, measurement and reporting of
traffic volumes; maintenance and repair of hardware and software. A Letter of
Agency will be provided to the LEC/high CAP to allow ZipLink to order and manage
these dedicated access circuits. The contracts for these circuits will be
between WNI and the LEC/high CAP, and WNI will be responsible for the one-time
and recurring fees associated with it.
ZipLink will propose the specific hardware and software to be used for
connecting the two networks. WNI and ZipLink will then modify this proposal as
necessary to accommodate the needs of each network. A list of required items
will be prepared and signed off by both parties, and WNI shall purchase at its
expense the items and deliver them to ZipLink or rent the equipment from ZipLink
on mutually acceptable terms. Execution of any rental agreement will be at the
sole discretion of each party.
On request by WNI, ZipLink will provide read-only SNMP access to the
extent technically feasible and subject to appropriate security to WNI for
routers and other SNMP-managed equipment in the dedicated access facilities.
ZipLink will also provide adequate backhaul capacity to its network to insure
that all WNI traffic to and from its customers using ZipLink dial-in access is
delivered to the dedicated access facilities.
15
SCHEDULE D
LIST OF LOCAL ACCESS NUMBERS AND LOCATIONS
California
Hollywood 213.957.9226
Oakland 510.835.4638
Los Angeles 213.621.2768
Palo Alto 415.327.9100
Pasadena 818.577.3927
San Diego 619.293.0205
San Francisco 415.243.0200
Santa ▇▇▇▇▇ 408.988.5800
Connecticut
Hartford 860.509.3400
New Haven 203.781.0022
Stamford 203.964.0511
District of Columbia
Washington 202.638.4638
Illinois
Chicago 312.360.2340
Elk Grove 847.427.2170
Hinsdale 630.241.5400
Northbrook 847.509.3380
Maryland
Baltimore 410.752.3214
16
Massachusetts
Andover 508.933.1400
Ayer 508.772.1156
▇▇▇▇▇▇▇ 508.720.1400
Boston 617.824.4949
Brockton 508.513.1400
Burlington 617,685.1400
Cambridge 617.528.0400
Canton 617.302.1400
Chelmsford 508.614.1400
Clinton 508,368.7002
Fitchburg 508,353.9000
Foxboro 508,216.1400
Framingham 508.782.1400
Hopkinton 508.435.5055
Lexington 617.869.1400
Lynnfield 617.406.1400
Malden 617,870.1400
Mansfield 508.594.1400
Marlboro 508.382.1400
Northboro/Southboro 508.571.1400
Quincy ▇▇▇.▇▇▇.▇▇▇▇
▇▇▇▇▇▇▇▇ 617.607.1400
Reading 617.205.1400
17
Saugus 617.417.1400
Shrewsbury 508.925.1400
Waltham 617.370.1400
Westboro 508.621.1400
Woburn 617.994.1400
Worcester 508.926.1400
New Jersey
Newark 201.557.6037
New York
Bronx 718.637.0898
Brooklyn 718.355.6996
Central Islip
(Long Island) 516.787.1023
Garden City
(Long Island) 516.247.0023
Manhattan 212.479.7000
White Plains 914.323.0364
Pennsylvania
Philadelphia 215.440.7814
Texas
Dallas 214.744.4638
Houston 713.767.1515
18
SCHEDULE E
NETWORK SERVICES AND CONDITIONS
GENERAL TERMS
The WebTV Network.WebTV Networks, Inc. ("WebTV") hosts the WebTV Network, a
fully integrated Internet service designed especially for the owners of a WebTV
Product, such as, but not limited to, the Sony Internet Terminal, or the Philips
Magnavox Multimedia Access Terminal.
The WebTV Network will connect you to the Internet using your WebTV Product and
a television. Use of the WebTV Network is a service that is made available to
owners of a WebTV Product on a subscription basis. To become a subscriber to the
WebTV Network, you establish an account with WebTV using your WebTV compatible
Internet terminal which is subject to certain terms and conditions established
by WebTV. By registering for the WebTV Network, you accept and agree to comply
with the Terms of Service as outlined below (collectively, the "Terms"), which
Terms are subject to change by WebTV at any time.
CHANGES TO THE SERVICE. The WebTV Network, like the Internet itself, is in a
process of near constant change. To keep up with the steady stream of new Web
sites, new formats and new technologies being introduced on the Internet, the
WebTV Network will continually be updated by WebTV. Most updates will be
provided at no additional cost to your regular subscription fees, although some
special updates may be only be available for an extra charge,
ACCEPTANCE OF CHANGES. You acknowledge that WebTV shall have the right to and
may change the WebTV Network or the Terms at any time. Such changes to the Terms
will become effective upon WebTV posting the revised Terms on the "WebTV Terms
of Service" page (which can be found by choosing the WebTV logo on the WebTV
Home page) and notifying to you of such change. If any changes made either to
the WebTV Network or to the Terms (including new fees, should there be a change
in the fees for the WebTV Network) are unacceptable to you, you agree that your
sole remedy shall be to terminate your WebTV Network account in accordance with
the procedures described below for termination. Continued use of the WebTV
Network after notice of any revision of the Terms, however, shall be deemed as
your acceptance of, and agreement to comply with, such revised Terms.
ACKNOWLEDGMENT OF NATURE OF INTERNET CONTENT. The WebTV Network is designed to
provide you with access to the Internet. The Internet is a vast, global network
of computers on which text, images, audio, software and other materials
("Materials") can be posted by a variety of means. The most common method used
for posting information is through a Web site. People create individual Web
sites, each with its own unique Web address, to organize and make accessible for
public viewing any materials of their own choice. Other means for posting
material include bulletin boards and Usenet news groups, that generally have
information from a variety of sources. Anyone with access to the Internet can
post Materials for public viewing and change or modify such Materials as often
as they wish. This means that the nature, character, quality and accuracy of the
Materials posted on Web sites varies as broadly as does human nature and that
each Web site, itself, can vary from one day to the next. You acknowledge that
you understand that Web sites that may be accessed through the WebTV Network may
contain Materials that some people may find offensive or which are unsuitable
for minors. Although such Materials can be accessed through use of the WebTV
Network, you acknowledge and agree that WebTV is not responsible for and does
not in any manner control or condone any Materials contained within any Web
sites other than its own.
19
ACKNOWLEDGMENT OF LACK OF SECURITY ON INTERNET.
MOST INFORMATION THAT YOU SEND OR RECEIVE THROUGH THE INTERNET (E.G. E-MAIL
MESSAGES, CREDIT CARD OR OTHER MONETARY TRANSACTIONS, CHAT MESSAGES, INFORMATION
REQUESTED BY WEB SITES FOR YOU TO ENTER), UNLESS EXPLICITLY IDENTIFIED BY THE
WEBTV NETWORK AS BEING SENT SECURELY, IS SENT OVER PUBLIC NETWORKS AND MAY BE
SUBJECT TO INTERCEPTION OR EAVESDROPPING BY UNAUTHORIZED PARTIES. DO NOT SEND
INFORMATION OVER THE INTERNET (ESPECIALLY CONFIDENTIAL INFORMATION THAT MAY BE
REQUESTED BY A WEB SITE SUCH AS CREDIT CARD INFORMATION AND PERSONAL
INFORMATION) THAT MAY BE MISUSED IF INTERCEPTED OR COPIED BY AN UNAUTHORIZED
PARTY. YOU ACKNOWLEDGE AND AGREE THAT WEBTV IS NOT RESPONSIBLE FOR THE SECURITY
OF INFORMATION THAT YOU SEND OR RECEIVE THROUGH THE INTERNET, AND YOU AGREE TO
HOLD WEBTV HARMLESS FROM ANY RESULTS OF ANY SUCH INFORMATION BEING INTERCEPTED,
COPIED OR USED BY ANOTHER PARTY.
USE OF THE WEBTV NETWORK
Subscription Account. To use the WebTV Network, an adult must register as the
Primary User and establish the Primary User Account with WebTV. The Primary User
agrees to pay the monthly subscription fee (payment terms are described below)
when the Primary User Account is established with WebTV.
THE PRIMARY USER IS AN ADULT. Only an adult may register as a Primary User of
the WebTV Network. No minor can register as a Primary User. If you are
registering as a Primary User, you represent to WebTV that you are 18 years old
or older and you agree to be responsible to WebTV for all usage on this account
and ensure full compliance with these Terms by any other users. As the Primary
User, you agree to provide accurate and complete registration information for
yourself. You further agree that, should any information that you enter be found
to be incorrect, WebTV would have the right to terminate your Primary User
Account immediately.
SECONDARY USERS. A Primary User may sign up as many as four additional people as
Secondary Users of the WebTV Network on a Primary User Account at no additional
cost. All fees generated by a Secondary User in his or her use of the WebTV
Network is the obligation of the Primary User that signed up the Secondary User
and will be billed to the Primary User Account. As the Primary User, you agree
to be responsible for the accurate registration of any Secondary User. You agree
to have each Secondary User read through the Terms of Service Agreement (which
can be found by choosing the WebTV logo on the WebTV Home page) and each
Secondary User agrees to comply with the Terms. You agree to be responsible for
the proper usage of the Service and compliance with the Terms by all Secondary
Users.
USE AND PROTECTION OF PASSWORDS. A Primary User Account or a Secondary User
Account that is established with password protection is considered a protected
account. Where there is only a single user of a Primary User account, no
password protection is required (although it is strongly recommended). Where
there is more than one user, and especially where there is a minor who may
become a Secondary User, password protection is required on the Primary User
Account. Password protection also protects your account against unauthorized
access or potentially harmful use (including unauthorized credit card purchases
or sending of e-mail identified as coming from your account). Please select your
password carefully. A "Secure Password" is at least 6 characters long and
consists of both letters and numbers or other characters in a pattern that will
not be found in any dictionary nor
20
will be known by other persons. Passwords should be changed frequently, Because
your password provides access to the WebTV Network, you agree not to disclose
your password to any other person. In the event your password becomes known to
any other person, you agree to immediately change your password. By not
registering a Secure Password, you agree that any use of an unprotected Primary
User Account or Secondary User Account is authorized use for which you are
responsible.
USAGE BY MINORS. WebTV Network includes a screening technology, designed to
restrict access by minors to Materials on the Internet that may be inappropriate
for minors, that can be activated when setting up a Secondary User Account.
Nonetheless, you acknowledge that Web site screening is an imperfect process and
it may be possible for minors to access inappropriate Materials through use of
the WebTV Network, despite use of the screening technology. If you desire to
ensure that a minor does not access inappropriate Materials, you agree to
physically secure the WebTV Product from the minor's reach or (i) monitor such
minor's use of the WebTV Network, and (ii) select and safeguard Secure Passwords
for the Primary User Account and all Secondary User Accounts. If you are unable
to monitor use by a minor and do not wish such minor to potentially access any
inappropriate Materials through the use of the WebTV Network or its services,
you agree not to allow such minor to register as a Secondary User or to
otherwise use or have access to the WebTV Network. The Primary User acknowledges
that he or she understand that Materials on the Internet or communication from
unauthorized persons through e-mail or chat groups could be potentially HARMFUL
to a minor and the Primary User assumes full responsibility for the use of the
WebTV Service by any minor.
USAGE OF MATERIALS, INFORMATION AND EQUIPMENT
PUBLIC DOMAIN AND COPYRIGHTED MATERIALS. Certain Materials available on the
Internet are considered to be in the public domain and may be accessed, viewed,
redistributed and downloaded by individuals generally. WebTV Networks bears no
responsibility for, and you agree to assume all risks regarding, the
determination of whether any given Materials are in the public domain and the
appropriate use thereof Materials that are copyrighted may be viewed as
presented and downloaded for personal use only. Unless permitted by the
copyright holder, you agree not to alter, falsify, misrepresent, distribute or
otherwise utilize copyrighted Materials for other purposes without the proper
permission of the copyright owner. You agree that, with respect to your use of
copyrighted Materials accessed through the WebTV Network, that you shall hold
WebTV harmless for any improper usage by the Primary User or Secondary Users.
USAGE OF NETWORK SERVICES. The WebTV Network and its services are for the sole
usage of registered Primary Users and their authorized Secondary Users and are
not transferable to another Primary User. In addition, the right to use the
accounts is subject to limits, policies and these Terms, as established by WebTV
and as modified from time to time. Further, usage of the WebTV Network may be
subject to changes in the nature or constraints of the Internet and of the
capabilities and limitations of various contracted service providers. Although
WebTV seeks to provide continuous and uninterrupted service, WebTV does not
warrant that the WebTV Network will be accessible at all times or that any
session will be uninterrupted. WebTV may, in its sole discretion and without
prior notice (i) restrict or limit access to the WebTV Network; (ii) terminate a
user account or user sessions at any time; or (iii) discontinue or modify any or
all aspects of the WebTV Network or its services. You agree to indemnify and
hold WebTV harmless from any claims of damages relating to interruptions or
termination of service, whether intentional or due to technical problems,
PROVISION AND USAGE OF EQUIPMENT. The WebTV Network may only be used in
connection with a WebTV Product. Any product labeled with a "WebTV" symbol may
only be used with the WebTV
21
Network. As Primary User, you agree that neither you nor any Secondary User
shall tamper with or permit any tampering or adjustment of any WebTV Product,
whether or not the intention is to disassemble, decompile, create derivative
works of, reverse engineer, modify, use for other purposes or repair. All such
activity is strictly prohibited and may result in a termination of the Network
service and the pursuit of other legal remedies.
E-MAIL MESSAGES, All registered Users may save e-mail messages
in their own accounts up to time and space limits determined by WebTV. Users are
required to delete old messages from the system to make room in their Mail boxes
for more messages. From time to time, WebTV may need to make room for new
messages and may delete old messages from a User's Mail box that is older than a
certain date or that exceeds a certain limit of storage. WebTV Networks reserves
the right to read, delete or to disclose to third parties the contents of e-mail
which is lost, misdirected or of illegal nature. Most e-mail sent or received
through the Internet is transmitted without encryption through public networks
and may be subject to interception or eavesdropping by unauthorized parties. Do
not send or request confidential information through e-mail. You agree to hold
WebTV harmless from the result of any e-mail message being intercepted or copied
by an unauthorized party.
USAGE OF SUBSCRIBER INFORMATION. The WebTV Network maintains records of certain
user information pertaining to subscriptions and billing, user-selected options
and preferences and service usage. WebTV reserves the right to and may, from
time to time, share certain information with third parties at WebTV's sole
discretion.
DISALLOWED BEHAVIORS
INAPPROPRIATE OR UNAUTHORIZED USAGE. You agree not to use the WebTV Network in
any manner that does or would have a tendency to disrupt the normal use of the
WebTV Network by other subscribers. In the event of any inappropriate or
unauthorized usage, you may receive an e-mail warning or have your account
temporarily suspended or, in WebTV's sole discretion, terminated. Be advised
that certain unauthorized usage may subject you to civil and/or criminal
liability. Without limit to the foregoing, you agree not to use the WebTV
Network or its services to (i) make unauthorized attempts to access, use or
change the systems, networks or accounts of others; or (ii) to send unsolicited
messages, advertising or promotional Materials to third parties; or (iii) to use
your access to the WebTV Network to provide a minor access to inappropriate
Materials without the consent of the minor's parent or guardian.
NETWORK CONDUCT AND PROPER LANGUAGE. Conduct on the WebTV Network should conform
with public standards of decency and decorum and right of quiet enjoyment. No
user may disrupt, harass, defame or otherwise embarrass, cause discomfort to or
become offensive to another person on the WebTV Network or on the Internet.
Vulgarity and profanity within e-mail, chat groups or within user names is not
permitted. There shall be no advertising to or solicitation of other users.
WebTV reserves the right to prohibit the use of any user name and/or to make
changes to any user name as WebTV, in its sole discretion, requires.
FALSE CREDIT INFORMATION. No Primary User may register for WebTV Network service
using any expired, false or unauthorized credit card. Users are responsible for
the security of their own credit cards and passwords and should notify WebTV
promptly if (i) there is a change in the expiration date of a credit card; (ii)
there is a change in the credit card billing information; or (iii), if there has
been a breach of security, such as a theft of a card or a disclosure of a
password.
22
PAYMENT OF FEES AND OTHER CHARGES
METHOD OF PAYMENT. The basic WebTV Network subscription fee is currently $19.95
per month (plus any applicable taxes), payable in advance, and covers all basic
services provided by the WebTV Network for access to the Internet. The Primary
User agrees to pay for the WebTV Network monthly subscription charge when the
Primary User Account is activated and until the Primary User Account is
terminated (as described below). The monthly subscription fee is subject to
change upon 30 days notice.
AUTOMATIC CREDIT CARD PAYMENTS. Upon entry of the Primary User's credit card
information during the WebTV Network registration process, the Primary User
agrees that the monthly fee shall be deducted automatically on the first of each
month from this same card until the Primary User Account is terminated. These
automatic transactions are carried out securely and will show up on your monthly
credit card statement as a WebTV Network subscription charge.
MAKING PURCHASES ON YOUR WEBTV ACCOUNT. The WebTV Service will provide a Primary
or authorized Secondary User with the ability to purchase goods or services
securely over the Internet using the credit card specified during the WebTV
Network registration process from a vendor explicitly approved for transactions
by WebTV with the designation "WEBTV SECURE". If a Primary User or an authorized
Secondary User elect to make such a purchase, the Primary User agrees to
authorize payment to the vendor for the purchased goods or services and
authorizes WebTV to serve as the source of secure payment information to those
vendors. The Primary User acknowledges and agrees that WebTV shall have no
responsibility for any aspect of such transaction, neither delivery,
suitability, satisfaction or returns of such goods or services and that WebTV
shall be held harmless for its role of providing authorization for such
purchases. The Primary User also acknowledges that he or she understands (i)
that a purchase with the credit card used during the WebTV Network registration
process can be easily made by an unauthorized person if there is not a Secure
Password provided for each Primary User and Secondary User Account; (ii) that if
a credit card number or other confidential information is provided to a vendor
on the Internet who is not explicitly approved by WebTV with the designation
"WEBTV SECURE", such confidential information may be subject to interception or
copying by unauthorized parties. WebTV will be held harmless from the result of
any confidential information sent to any vendor that is not explicitly approved
by WebTV that is intercepted or copied by unauthorized parties,
OTHER PHONE CHARGES. All users are responsible for all their own telephone
charges incurred for connecting WebTV through telecommunications network access
nodes. You agree that WebTV shall have no responsibility or liability for any
telephone charges, including but not limited to long distance charges, per
minute surcharges or equipment or line costs incurred by users. All disputes
between a user and his/her phone company are agreed to be solely between those
two parties.
LACK OF PAYMENT. The Primary User agrees to provide payment in full of the WebTV
Service subscription fees. In the event that payment for the WebTV Network is
not provided on a timely basis, the Primary User agrees and acknowledges that
WebTV shall have the right to terminate, suspend or restrict his or her access
to the Service. WebTV reserves the right to pursue all legal remedies available
to secure payment of any delinquent accounts.
REINSTATEMENT OF SERVICE. In the event that the Primary User decides to
reactivate the WebTV Network service after a termination, the Primary User
agrees to provide settlement of any outstanding
23
balances on the account and pay a reactivation fee of US $10 for the set up of a
new registration. WebTV shall have the right to require a full re-registration
and to require submission of additional information as WebTV may request to
verify user and credit information.
REFUNDS. WebTV Network fees are payable in advance for the monthly Service
Period and are not refundable for any reason, in whole or in part after
completion of the Service Period. Subscription fees that are pre-paid for a
particular Service Period are refundable for unused portions of a Service Period
from the date on which the Primary User notifies WebTV to close the Primary User
Account. For the purposes of refunding unused portions, each month shall be
considered to have thirty days, with a Service Period that commences on the
first day of the month.
TERMINATION OF SERVICE
TERMINATION BY THE PRIMARY USER. The Primary User may terminate the Primary User
Account (and thereby terminate all related Secondary User Accounts) at any time,
without cause, but only upon notification to WebTV via the WebTV Network e-mail
service (To: subscriptions @▇▇▇▇▇.▇▇▇) or by letter to WebTV (attention:
Subscription Services). Until such notification is received, the Primary User
remains responsible for all charges incurred up to and including the effective
date of termination. Cancellation notices received prior to 2:00 pm PST shall be
effective the next day and notices received after 5:00 pm PST shall be effective
on the second following day. Upon termination, The Primary and Secondary User
WebTV Network registration and user information may be eliminated, including
removal of e-mail archives, favorites and other stored user preferences.
TERMINATION BY WEBTV. WebTV may terminate the Primary User Account (and thereby
terminate all related Secondary User Accounts) at any time with or without cause
at WebTV's sole discretion. Upon such termination the Primary User will be
notified by Postal Service mail at the address specified during the WebTV
Network registration process. Such cancellations are only likely in the event of
misuse of any part of the WebTV Product or the WebTV Network, delinquency in the
payment of the Primary User Account, bad behavior on the Network or for
disruption or termination of Internet service in your area, although all
cancellations shall be entirely at WebTV's discretion.
DISCLAIMER AND INDEMNITY
DISCLAIMER. YOU AGREE THAT USE OF THE WEBTV NETWORK, ITS SERVICES AND ANY
MATERIALS OBTAINED THROUGH USE OF THE WEBTV NETWORK TO ACCESS THE INTERNET IS AT
YOUR SOLE RISK. NEITHER WEBTV NOR ITS INFORMATION PROVIDERS, LICENSORS,
EMPLOYEES OR AGENTS WARRANT THAT THE WEBTV SERVICE WILL BE UNINTERRUPTED OR
ERROR FREE NOR DO THEY MAKE ANY WARRANTY AS TO THE QUALITY, ACCURACY OR
COMPLETENESS OF ANY MATERIALS AVAILABLE THROUGH USE OF THE WEBTV NETWORK OR ITS
SERVICES. THE WEBTV NETWORK AND ITS SERVICES ARE MADE AVAILABLE ON AN "AS IS"
BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND WEBTV EXPRESSLY
DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT IN CONNECTION WITH THE WEBTV NETWORK AND ITS SERVICES.
NEITHER WEBTV NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE
WEBTV SERVICE SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING
OUT OF THE USE OF, OR INABILITY TO USE, THE WEBTV SERVICE.
24
INDEMNITY. YOU AGREE TO INDEMNIFY AND HOLD WEBTV HARMLESS FROM AND AGAINST ANY
AND ALL COSTS INCURRED BY WEBTV, INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES,
AS A RESULT OF ANY CLAIMS ARISING FROM YOUR BREACH OF THESE TERMS OR OTHERWISE
AS A RESULT OF YOUR USAGE OF THE WEBTV SERVICE.
OTHER PROVISIONS
EXPORT CONTROL. A WebTV Product may not be exported or re-exported outside of
the United States without the appropriate United States and foreign government
licenses. WebTV Products utilize sophisticated encryption technology which is
currently not permitted to be exported without special licenses.
INTERPRETATION OF TERMS. In the event that any Term herein is held invalid by a
court with jurisdiction over the parties, such provision shall be deemed to be
restated to reflect as nearly as possible the original intentions of the parties
in accordance with applicable law and the remainder shall remain in full force
and effect. The Terms shall be interpreted in all respects in accordance with
the laws of the State of California, without reference to conflict of laws
principles.
ENFORCEMENT. Any failure by WebTV to enforce strict performance of the Terms or
to exercise its rights under the Terms, shall not be construed as a waiver or
relinquishment of WebTV's right to assert provisions in other instances.
25
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated May 13th, 1997 ("Amendment No. 1"), to the Agreement,
dated October 23, 1996 (the "Agreement"), between ZipLink, LLC ("ZipLink")
and WebTV Networks, Inc. ("WNI").
The parties entered into the Agreement pursuant to which Ziplink provides
telecommunication services for the interconnection of WNI end users to WNI
facilities.
The parties desire to amend the Agreement as follows:
1. Section 5.1.1 is replaced as follows:
WNI may terminate its obligations under this Agreement if ZipLink does not
materially meet the performance standards set forth in Section 1.2 (the
"Performance Breach") and ZipLink does not cure the Performance Breach within
90 days of receipt of written notice from WNI of its intent to terminate
which notice shall describe clearly the Performance Breach.
2. All other terms of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the date first above recited.
WEBTV NETWORKS, INC. ZIPLINK, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President Title: President
Amendment #2 to
ZipLink - WebTV
Network Services Agreement
This Amendment is entered into effective as of February 1, 1998 ("Amendment
Effective Date") by and between ZipLink, LLC ("ZipLink"), located at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and WebTV Networks Inc., a wholly owned subsidiary
of Microsoft Corporation, located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("WNI").
RECITALS
The parties have entered into the ZipLink - WebTV Network Services Agreement as
of October 23, 1996 ("Agreement").
The parties wish to amend the Agreement as follows:
AMENDMENT
1. SECTION 7. Section 7 of the Agreement is deleted in its entirety and replaced
with the following:
7. COMMITMENTS
Effective March 1, 1998, on the first day of each month, WNI shall make
a dollar commitment (a "Commitment") for the following month. Each
Commitment shall be WNI"s minimum payment to ZipLink for the services
provided by ZipLink under this Agreement for such month, whether or not
such services are used by WNI or its customers.
When WNI provides a new Commitment to ZipLink, ZipLink shall, within
five (5) business days of receipt of a proposed Commitment from WNI,
accept all or some of the proposed Commitment by notice to WNI. Failure
to notify WNI within five (5) business days shall constitute acceptance
by ZipLink of WNI"s proposed Commitment.
All Commitments shall be equal to * or greater unless otherwise agreed
by the parties; provided, however, that each Commitment shall be
prorated downwards to the extent required by Section 2.3 of the
Agreement. For example, if ten percent (10%) of ZipLink"s POPs are not
meeting performance requirements per Section 2.3, a * Commitment for
the month in question would be reduced to *.
Commitments cover the cumulative traffic coming from the "Per
Subscriber" pricing plan and the "Per Hour" pricing plan. Commitments do
not require a dollar breakout between the two pricing plans.
1
2. SECTION 15.3. A new Section 15.3 is hereby added to the Agreement as
follows:
15.3 The parties' obligations of confidentiality under this Agreement
shall not be construed to limit either party's right to
independently develop or acquire products without use of the
other party's confidential or proprietary information. Further,
either party shall be free to use for any purpose the residuals
resulting from access to or work with such confidential or
proprietary information, provided that such party shall maintain
the confidentiality of such confidential or proprietary
information as provided herein. The term "residuals" means
information in non-tangible form, which may be retained by
persons who have had access to confidential or proprietary
information, including ideas, concepts, know-how or techniques
contained therein. Neither party shall have any obligation to
limit or restrict the assignment of such persons or to pay
royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either
party a license under the other party's copyrights or patents.
3. SECTION 25. The second sentence of Section 25 is hereby deleted in its
entirety.
4. SCHEDULE B. Schedule B of the Agreement is amended as follows:
a. The Per Subscriber Schedule of Section 1.1 of the Schedule is
deleted in its entirety and replaced with the following
effective December 1, 1997:
NO. OF SUBSCRIBERS AMOUNT PER SUBSCRIBER
*
b. The Per Hour Schedule and the second paragraph of Section 1.2
of the Schedule are hereby deleted. Effective December 1,
1997, per hour pricing will be *, regardless of the commitment
level.
c. Section 2 of the Schedule is deleted in its entirety and
replaced with the following:
2
2. If WNI"s customers' usage is such that significant
network resources beyond those anticipated are used,
ZipLink and WNI will discuss compensation for ZipLink
for the higher usage. A mutually agreed, in writing,
pricing schedule may replace these schedules upon such
agreement.
5. NEW SCHEDULES. Schedule D of the Agreement is deleted in its entirety
and replaced with the Schedule D attached to this Amendment. A new
Schedule E (Terms of Service) is added to the Agreement as attached to
this Amendment
6. OTHER TERMS. Except as expressly amended above, all other terms of the
Agreement shall continue in full force and effect. Except as otherwise
expressly provided in this Amendment, the terms in this Amendment shall
have the same meaning as set forth in the Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as of
the Effective Date.
WEBTV NETWORKS, INC ZIPLINK, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name (print): ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name (print): ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice-President Title: President
Date: 3/4/98 Date: 2/23/98
3
SCHEDULE D
POP LIST
▇▇▇-▇▇▇-▇▇▇▇ "Los Angeles, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Two, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Three, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Montebello, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "LA Zone Four, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Carson, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Beverly Hills, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Compton, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Culver City, CA"
▇▇▇-▇▇▇-▇▇▇▇ "El Segundo, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Gardena, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Hawthorne, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Inglewood, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Torrance, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San ▇▇▇▇ North, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San ▇▇▇▇ ▇▇▇▇, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Sunnyvale, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Francisco: Central, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Francisco: Evergreen, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Francisco: Juniper, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oakland: Alameda, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Orinda, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oakland: Fruitvale, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oakland: Main-Piedmont, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Lafayefte, CA"
▇▇▇-▇▇▇-▇▇▇▇ "FremontNewark:▇▇▇▇▇▇▇▇▇, CA"
4
ftplist
▇▇▇-▇▇▇-▇▇▇▇ "Dublin: San Ramon, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Hayward, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Fremont-Newark: ▇▇▇▇▇▇, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Fremont-Newark: Main, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Concord, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Danville, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oakland: Trinidad, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Walnut Creek, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oakland: Berkeley, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Chula Vista, CA"
▇▇▇-▇▇▇-▇▇▇▇ "El Cajon, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Coronado, CA"
▇▇▇-▇▇▇-▇▇▇▇ "La Jolla, CA"
▇▇▇-▇▇▇-▇▇▇▇ "La Mesa, CA"
▇▇▇-▇▇▇-▇▇▇▇ "National City, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Rancho ▇▇▇▇▇▇▇▇, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Diego (Mira Mesa), CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Diego, CA"
▇▇▇-▇▇▇-▇▇▇▇ "El Mnte, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Pasendena, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Carlos, CA"
▇▇▇-▇▇▇-▇▇▇▇ "South San Francisco, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Mountain View, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Redwood City, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Millbrae, CA"
▇▇▇-▇▇▇-▇▇▇▇ "San Mateo, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Palo Alto, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Santa ▇▇▇▇/Tustin, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Garden Grove, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Buena Park, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Cypress, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Anaheim, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Fullerton, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Orange, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Irvine, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Placentia, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Brea, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Oceanside: Carlsbad, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Burbank, CA:"
▇▇▇-▇▇▇-▇▇▇▇ "Glendale, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Van Nuys, CA"
▇▇▇-▇▇▇-▇▇▇▇ "Hartford, CT"
▇▇▇-▇▇▇-▇▇▇▇ "New Haven, ▇▇"
▇
ftplist
▇▇▇-▇▇▇-▇▇▇▇ "Stamford, CT"
▇▇▇-▇▇▇-▇▇▇▇ "Hartford, CT"
▇▇▇-▇▇▇-▇▇▇▇ "Franklin, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Elmhurst, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Aurora, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Geneva, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Downers Grove, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Big Rock, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Tinley Park, IL"
708-575-4410 "Chicago Heights, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Calumet City, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Beecher, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Oaklawn, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Newcastle, IL"
▇▇▇-▇▇▇-▇▇▇▇ "S. Chicago, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Plainfield, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Lockport, IL"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Woodstock, IL"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Kankakee, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Manhattan, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Morris, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Ottowa, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Utica, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Crescent City, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Joliet, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Evanston, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Libertyville, IL"
847-5744410 "Lakeforest, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Antioch, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Algonquin, IL"
847-6284410 "Elgin, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Park Ridge, IL"
847-7924410 "Hampshire, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Elk Grove, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Northbrook, IL"
▇▇▇-▇▇▇-▇▇▇▇ "Gaithersburg, MD"
▇▇▇-▇▇▇-▇▇▇▇ "Glenburnie, MD"
▇▇▇-▇▇▇-▇▇▇▇ "Towson, MD"
▇▇▇-▇▇▇-▇▇▇▇ "Baltimore, MD"
▇▇▇-▇▇▇-▇▇▇▇ "Pikesville, MD"
▇▇▇-▇▇▇-▇▇▇▇ "Cockysville, MD"
6
ftplist
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
301-778-0778 "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "Washington, DC"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇, MA"
413-332-1400 "Lenox, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Holyoke, MA"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇ ▇▇▇▇▇▇▇▇▇▇, MA"
413-643-1400 "Gilbertville, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Cummington, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Blandford, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Amherst, MA"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Foxboro, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Nantucket, MA"
508-248-5690 "Charlton, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Rehoboth, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Rehoboth, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Rehoboth, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Rehoboth, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Uxbridge, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Fall River, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Framingham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Wellfleet, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Barnstable, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Harwich, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Hopedale, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Provincetown, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Worcester, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Franklin, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Upton, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Cataumet, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Northboro/Southboro, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Brockton, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Mansfield, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Westboro, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Vineyard Haven, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Foxboro, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Plymouth, MA"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇, MA"
7
ftplist
▇▇▇-▇▇▇-▇▇▇▇ "Marlboro, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Holden, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Natick, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Shrewsbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Quincy, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Boston, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Cambridge, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Boston, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Cambridge, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Newton, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Jamaica Plain, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Brookline, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Reading, MA"
781-207-1400 "Waltham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Canton, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Waltham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Medford, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Lynnfield, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Norwood, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Norwood, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Kingston, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Randolph, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Medford, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Burlington, MA"
781-749-3967 "Hingham, MA:"
▇▇▇-▇▇▇-▇▇▇▇ "Hingham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Hingham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Hingham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Lexington, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Revere, MA"
781-994-1400 "Woburn, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Burlington, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Sudbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Haverhill, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Gloucester, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Hudson, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Peabody, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Fitchburg, MA"
▇▇▇-▇▇▇-▇▇▇▇ "W Newbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "West Newbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "West Newbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "West Newbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Lowell, MA"
8
ftplist
▇▇▇-▇▇▇-▇▇▇▇ "Salisbury, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Haverhill, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Lawrence, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Townsend, M:"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇▇, M:"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇▇, MA"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇▇, MA"
▇▇▇-▇▇▇-▇▇▇▇ "▇▇▇▇▇▇▇▇, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Chelmsford, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Gardner, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Petersham, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Ayer, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Salem, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Berlin, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Topsfield, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Maynard, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Andover, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Billerica, MA"
▇▇▇-▇▇▇-▇▇▇▇ "Jersey City/Newark, NJ"
▇▇▇-▇▇▇-▇▇▇▇ "Manhattan, NY"
▇▇▇-▇▇▇-▇▇▇▇ "Garden City, NY"
▇▇▇-▇▇▇-▇▇▇▇ "Central Islip, NY"
▇▇▇-▇▇▇-▇▇▇▇ "Brooklyn, NY"
▇▇▇-▇▇▇-▇▇▇▇ "Bronx, NY"
▇▇▇-▇▇▇-▇▇▇▇ "White Plains, NY"
▇▇▇-▇▇▇-▇▇▇▇ "Philadelphia, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Collegeville, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Philadelphia, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Philadelphia, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Philadelphia, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Philadelphia, PA"
▇▇▇-▇▇▇-▇▇▇▇ "West Chester, PA"
▇▇▇-▇▇▇-▇▇▇▇ "Dallas, TX"
▇▇▇-▇▇▇-▇▇▇▇ "Houston, TX"
▇▇▇-▇▇▇-▇▇▇▇ "Grand Prarie, TX"
▇▇▇-▇▇▇-▇▇▇▇ "Atlanta, GA"
770-225-2255 "Chamblee, GA"
▇▇▇-▇▇▇-▇▇▇▇ "Marieffa, GA"
▇▇▇-▇▇▇-▇▇▇▇ "Smyma, GA"
▇▇▇-▇▇▇-▇▇▇▇ "Norcross, GA"
▇▇▇-▇▇▇-▇▇▇▇ "Miami, FL"
▇▇▇-▇▇▇-▇▇▇▇ "West Palm Beach, FL"
▇▇▇-▇▇▇-▇▇▇▇ "Boca Raton, FL"
▇▇▇-▇▇▇-▇▇▇▇ "Ft. Lauderdale, FL"
9
altftplist
▇▇▇-▇▇▇-▇▇▇▇ "Anderson, SC"
▇▇▇-▇▇▇-▇▇▇▇ "Baton Rouge, LN"
▇▇▇-▇▇▇-▇▇▇▇ "Charlotte, NC"
▇▇▇-▇▇▇-▇▇▇▇ "El Paso, TX"
▇▇▇-▇▇▇-▇▇▇▇ "Greenville, SC"
▇▇▇-▇▇▇-▇▇▇▇ "Jacksonville, FL"
▇▇▇-▇▇▇-▇▇▇▇ "Lexington, KY"
▇▇▇-▇▇▇-▇▇▇▇ "Louisville, KY"
▇▇▇-▇▇▇-▇▇▇▇ "Montgomery, AL"
▇▇▇-▇▇▇-▇▇▇▇ "New Orleans, LA"
602-308-8000 "Phoenix, AZ"
▇▇▇-▇▇▇-▇▇▇▇ "Raleigh, NC"
▇▇▇-▇▇▇-▇▇▇▇ "Spartanburg, SC"
▇▇▇-▇▇▇-▇▇▇▇ "Tampa, FL"
▇▇▇-▇▇▇-▇▇▇▇ "Ruscon, AZ"
▇▇▇-▇▇▇-▇▇▇▇ "Anderson, SC"
10
AMENDMENT #3
TO
ZIPLINK - WEBTV
NETWORK SERVICES AGREEMENT
This Amendment is entered into as of March 9, 1999 by and between ZIPLINK, LLC,
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and WEBTV
NETWORKS, INC. ("WNI") a wholly owned subsidiary of Microsoft Corporation,
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This Amendment amends the Network Services Agreement dated October 23, 1996
between ZipLink and WNI as amended by Amendment #1 dated May 13, 1997 and
Amendment #2 dated February 28, 1998 (collectively, the "Agreement"). Initial
capitalized term shall have the meaning assigned to them in the Agreement. This
Amendment is entered into in recognition of ZipLink's being a leading provider
of internet connectivity to WNl. Effective immediately the Agreement is amended
as follows:
1. SECTION 2.3 Section 2.3 of the Agreement is amended to provide
that Connection Success Ratio shall be reduced from * to *
and shall be measured in the aggregate across all dial up POPS.
2. SECTION 4 Section 4 of the Agreement is amended to extend the
initial term until December 31, 2000.
3. SECTION 5 Section 5.1.3 is replaced with the following:
Either party may terminate this Agreement for convenience and
without cause after giving the other party 90 days prior written
notice. In the event of any termination under this Section 5.1.3
by either party, ZipLink will maintain service availability
through a rampdown period which will start at the end of the 90
day notice period, or sooner if mutually agreed. The maximum
number of subscribers that can be ramped down by WNI each month
after the 90 day notice period is 12.5% of the number of users
at the start of the notice period. Eight months after the
beginning of the rampdown period, any remaining WNI users may be
removed.
4. SECTION 7 The Commitment specified in Section 7 of the Agreement
shall be increased from * per month to * per month.
5. SUBSECTION OF SCHEDULE B The Per Subscriber Schedule of Section
l.l of the Schedule is deleted in it's entirety and replaced
with the following, effective December 1, 1997:
NO. OF SUBSCRIBERS AMOUNT PER SUBSCRIBER
*
All of the other terms of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have set their hands and seals as to the
date first above recited.
WEBTV NETWORKS, INC. ZIPLINK, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Vice-President Its: President