EXHIBIT 10.15
MASTER SERVICES AGREEMENT
U S WEST Communications Services, Inc.("Customer") and Critical Path, Inc.
("Supplier") agree as follows:
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1. Scope: This Master Services Agreement ("Agreement") provides the
general terms and conditions that shall apply to the services (the "Services")
and the deliverables developed specifically for Customer at Customer's request
(the "Deliverables") to be provided by Supplier to Customer under this
Agreement. The Services and Deliverables will be provided pursuant to
statements of work and other addenda (collectively, "Statements of Work")
attached to and made a part of this Agreement, each of which shall describe the
functional specifications ("Specifications"), other requirements and additional
terms and conditions relating to the Services and/or Deliverables. In the event
of a conflict between a provision or provisions of this Agreement and a
provision or provisions of a Statement of Work, the Statement of Work shall
apply with respect to the Services and/or Deliverables specified in such
Statement of Work. Customer's Affiliates may purchase Services and Deliverables
under the terms and conditions of this Agreement. "Affiliate" means any entity
which directly or indirectly controls, or is controlled by, or is under common
control with, Customer. "Control" means (i) for corporate entities, direct or
indirect ownership of fifty percent (50%) or more of the stock or shares
entitled to vote for the election of the board of directors or other governing
body of the entity; and (ii) for non-corporate entities, direct or indirect
ownership of fifty percent (50%) or greater of the equity interest.
2. Term: This Agreement shall be effective on December 10th, 1998 and shall
expire on December 31st, 1999. The Agreement may be extended by the parties by
executing a separate written agreement of extension prior to the expiration of
the term.
3. Invoices and Payments: Supplier will issue invoices within thirty (30)
days following completion of Services or on a monthly basis for ongoing
Services, unless otherwise specified in the Statement of Work. Invoices will
contain an itemized description of Services performed, expenses, charges, costs,
and all state, federal, sales, or other applicable taxes separately. Undisputed
invoices will be paid within thirty (30) days of receipt. Payment shall not
constitute acceptance or approval of Services. All late payments shall bear
interest at the rate of one and one-half percent (1-1/2 percent) per month or,
if lower, the maximum amount allowable under applicable law, with interested
accruing from the date due until the amount due is paid.
4. Warranty: Services shall be performed in a professional manner, consistent
with industry standards. With respect to each Deliverables, unless otherwise
specified in the Statement of Work, Supplier warrants that, for a period of six
weeks commencing on the acceptance of the Deliverable (the "Warranty Period"),
the Deliverable under normal use will operate substantially in accordance with
the functional Specifications during the Warranty Period. Customer acknowledges
that the development of computer software is not an exact science and the
Supplier does not warrant that the Deliverables will operate at all times
without interruption or will be error-free. Supplier's entire liability and the
Customer's exclusive remedy for any breach of the foregoing remedy shall be that
Supplier, at Supplier's own expense, shall exercise commercially reasonable
efforts to repair any reproducible defect in the Deliverable reported to
Supplier by the Customer during the Warranty Period that causes the Deliverable
not to operate substantially in accordance with the functional Specifications.
If Supplier is unable to so repair the Deliverable within thirty (30) days of
notice by Customer of such defect, Customer shall be entitled to a refund of the
development fees paid under this Agreement to Supplier, in an amount that
Customer and Supplier reasonably determine is the amount by which the value of
the Deliverable is reduced due to its defects.
OTHER THAN THE FOREGOING, THE SERVICES AND ALL DELIVERABLES ARE PROVIDED BY
SUPPLIER TO CUSTOMER AND CUSTOMER'S USERS "AS IS" AND SUPPLIER AND ITS SUPPLIERS
MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES
OR THE DELIVERABLES AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT
POSSIBLE BY LAW.
5. Confidential Information and Property: "Confidential Information" shall
mean any and all business, technical or third-party information (including but
not limited to marketing plans, financial data, specifications, drawings
sketches, models, samples, computer programs, or documentation) marked or
otherwise designated as confidential or proprietary and provided, disclosed or
made available under this Agreement. All Confidential Information shall remain
the property of the disclosing party. The parties shall restrict access to the
Confidential Information to employees or agents who have a "need to know". The
parties, employees or agents, shall not disclose the Confidential Information to
any third party and shall treat the Confidential Information in the same way it
treats its own Confidential Information of like kind. This provision will not
apply to information which is in the public domain, is previously known to the
receiving party without obligation of confidentiality, is independently
developed by the receiving party or is obtained by the receiving party from a
third party that does not have an obligation to keep the information
confidential. The parties will not make any copies of the Confidential
Information and Supplier will not remove any property from Customer's premises
without prior approval.
6. Work Product: Unless otherwise specified in the Statement of Work, and
subject to Supplier's ownership of the Background Technology (as defined below),
all Deliverables, in any medium, that are specifically identified in a Statement
of Work and prepared or originated specifically for Customer at Customer's
request under this Agreement shall be the property of Customer and are deemed
works for hire, and to the extent they may not be works for hire, Supplier
assigns to Customer all rights, title and interest in and to such Deliverables
("Work Product"), including rights to copyright. If the Deliverables include
any code, data, modules, components, designs, utilities, subsets, objects,
processes, tools, features, functionality, interfaces, technology or other items
(a) previously developed, owned, copyrighted or otherwise used by Supplier or
its subcontractors, or (b) that are not specifically identified as a Deliverable
in the
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[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Statement of Work and prepared or originated specifically for Customer at
Customer's request, such items ("Background Technology") shall be and remain the
property of Supplier and its subcontractors or suppliers. Supplier grants to
Customer a royalty-free, non-transferable, non-exclusive license to copy and use
the Background Technology only in connection with use of the Deliverables for
their intended purpose as specified in the Statement of Work.
7. Independent Contractor: Supplier certifies that it is engaged in an
independent business and will perform its obligations under this Agreement as an
independent contractor and not as the agent or employee of Customer; that it has
no authority to act for or bind Customer; that Supplier may and does work for
other customers; that any persons provided by Supplier shall be solely the
employees or agents of Supplier under its sole and exclusive direction and
control. Supplier is solely responsible for the hours of work, methods of
performance and payment of its employees and agents. Supplier is solely
responsible for providing worker's compensation, unemployment, disability
insurance and social security withholding for its employees and agents, and
shall comply with all other federal, state and local, rules and regulations.
Supplier is responsible for and shall pay all assessable federal and state
income tax on amounts paid under this Agreement.
8. Indemnification: Each party (the "Indemnitor") shall indemnify, hold
harmless and defend, the other party, its officers, directors, Affiliates,
agents and employees (the "Indemnitees") from any and all claims, demands,
litigation, expenses and liabilities (including costs and attorneys' fees)
("Liabilities") arising from or incident to any act, omission, negligence or
performance under this Agreement by the Indemnitor, its customers, agents or
representatives. This indemnity shall not apply to the extent the Liability is
the result of the negligence or misconduct of the Indemnitee, its customers,
agents or representatives, or to the extent liability is disclaimed or limited
by either party under this Agreement. The indemnity obligations set forth in
this Article are contingent upon: (a) the Indemnitee giving prompt written
notice to the Indemnitor of any such claim(s); (b) the Indemnitor having sole
control of the defense or settlement of the claim; and (c) at the Indemnitor's
request and expense, the Indemnitee cooperating in the investigation and defense
of such claim(s).
9. Infringement: If the Services or Deliverables are held to be infringing, or
where Supplier believes any Services or Deliverables may be infringing, or where
Customer's use of Services or Deliverables is restricted as a result of a claim
of infringement, then Customer's sole and exclusive remedy and Supplier's sole
and exclusive liability, shall be, at Supplier's expense, to either obtain the
right for Customer to continue using the Services or Deliverables or replace or
modify the Services or Deliverables with a non-infringing service or deliverable
of equivalent functionality. If neither of the alternatives is reasonably
possible, then with respect to infringing Deliverables, Supplier shall refund a
pro-rata portion of the fees paid by Customer to Supplier for the Deliverables
out of which the claim arose, and with respect to infringing Services, this
Agreement or the applicable Statement of Work may be terminated by either party.
10. Limitation of Liability; Except for breach of Article 5, entitled
"Confidential Information and Property", and except for liability under Article
8, "Indemnification", neither party is liable to the other for consequential,
incidental, indirect, punitive or special damages, including commercial loss and
lost profits, however caused and regardless of legal theory or foreseeability,
directly or indirectly arising under this Agreement, even if a party has been
advised of the possibility of such damages.
11. Insurance: Supplier and any subcontractors, shall maintain insurance as
follows: (a) Commercial General Liability covering claims for bodily injury,
death, personal injury or property damage with minimum limits of $1 million each
occurrence with a General Aggregate limit of $2 million and naming Customer as
an additional insured as its interest may appear with respect to this Agreement;
(b) Comprehensive Automobile Liability covering ownership, operation and
maintenance of all owned, non-owned and hired automobiles used in connection
with the performance of this Agreement, with minimum limits of $1 million each
occurrence; (c) Worker's Compensation with statutory limits as required in the
state where the Services are being provided and Employers' Liability or "Stop
Gap" coverage with limits of $100,000 each accident. Customer shall be given
thirty (30) days advance written notification of any cancellation or material
change of the policy. Supplier shall forward certificate(s) of insurance to
Customer prior to commencement of Services and upon renewal of insurance during
the term of this Agreement.
12. Safety, Health and Accident Reports: The safety and health of Supplier's
employees and agents brought on Customer's premises shall be the sole
responsibility of Supplier. While on Customer's premises, Supplier shall comply
with all local, state and federal environmental, health and safety requirements,
including those relating to the use and handling of hazardous materials.
Supplier shall report all accidents, injury-inducing occurrences or property
damage arising from the performance of Services at Customer's premises.
Supplier's employees and agents on Customer's premises shall comply with all
plant rules and regulations provided by Customer to Supplier.
13. Compliance With Laws: Each party shall, at its expense, obtain all
permits and licenses, pay all fees, and comply with all federal, state and local
laws, ordinances, rules, regulations and orders applicable to the party's
performance under this Agreement. Supplier acknowledges that any Services
provided under this Agreement may be subject to The Telecommunications Act of
1996.
14. Termination for Convenience; Cancellation: Either party may terminate
this Agreement, in whole or in part (unless otherwise provided in a Statement of
Work), for its convenience upon thirty (30) days prior written notice.
Supplier shall be entitled to payment for the Services and Deliverables
completed in accordance with the terms and conditions herein as of the date of
termination or cancellation. Customer shall be entitled to receive all Work
Product in progress or completed as of the date of termination or cancellation.
Customer shall have no other liability arising out of termination or
cancellation of this Agreement. Either party may cancel this Agreement
immediately, in whole or in part, for default, breach, insolvency, bankruptcy,
inability to pay debts, or similar financial
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circumstances by the other. If the default or breach is reasonably capable of
cure, the non-defaulting party shall give the other party written notice and
reasonable opportunity to cure. The provisions of the Articles on Confidential
Information and Property, Work Product, Indemnification, Limitation of
Liability, Compliance with Laws and Dispute Resolution, shall survive the
termination or cancellation of this Agreement or any Statement of Work. In
addition, if this Agreement is terminated prior to the termination of any
Statement of Work, all applicable provisions of this Agreement shall survive
until expiration or termination of the Statement of Work.
15. Dispute Resolution: Any dispute, controversy or claim concerning or
relating to this Agreement shall be resolved in the following manner:
15.1 The parties agree to use all reasonable efforts to initially resolve
all claims, controversies and disputes ("Dispute") between the parties
through direct discussions. To that end, either party may give the
other party written notice of any dispute not resolved in the normal
course of business. Upon such notice, the parties shall attempt in
good faith to resolve the dispute promptly by negotiation between
executives who have authority to settle the controversy and who are at
a higher level of management than the persons with direct
responsibility for administration of this Agreement.
15.2 If the parties are unable to resolve the Dispute by such means within
30 days of the notice date, or such other time period as mutually
agreed, then either party may commence arbitration pursuant to the
then-current Rules of Commercial Arbitration of the American
Arbitration Association ("AAA"), as modified or supplemented under
this Section 15. The Federal Arbitration Act, 9 U.S.C. Sec. 1-16
shall govern the arbitrability of all Disputes. The arbitrator shall
not have authority to award punitive damages. All expedited
procedures prescribed by the AAA rules shall apply. The arbitrator's
decision and award shall be final and binding and judgment may be
entered in any court having jurisdiction thereof. Each party shall
bear its own costs and attorneys' fees, and shall share equally in the
fees and expenses of the arbitrator. If the arbitration of the
Dispute is initiated by Customer, the laws of the State of California
shall govern the construction and interpretation of this Agreement,
and the arbitration shall occur in San Francisco, California. If the
arbitration of the Dispute is initiated by Supplier, the laws of the
State of Colorado shall govern the construction and interpretation of
this Agreement, and the arbitration shall occur in Denver, Colorado.
15.3 The arbitration proceedings contemplated by this Section shall be as
confidential and private as permitted by law. To that end, the
parties shall not disclose the existence, contents or results of any
proceedings conducted in accordance with this Section, and materials
submitted in connection with such proceedings shall not be admissible
in any other proceedings, provided, however, that this confidentiality
provision shall not prevent a petition to vacate or enforce an
arbitral award, and shall not bar disclosures required by law. The
parties agree that any decision or award results from proceedings in
accordance with this Section shall have no preclusive effect in any
other matter involving third parties.
15.4 Notwithstanding any of the foregoing, either party may request
injunctive and/or equitable relief either from the arbitrators or from
a court in order to protect the rights or property of the party,
pending the resolution of the dispute by arbitration as provided
hereunder.
16. Force Majeure: Neither party is liable to the other party for any delay,
error, failure in performance or interruption of performance resulting from
causes beyond their control whether or not foreseeable or identified, including
without limitation acts of God, strikes, lockouts, riots, acts of war,
governmental regulations, fire, power failure, earthquakes, severe weather,
floods or other natural disease or the other party's or any third party's
hardware, software or communications equipment or facilities ("Force Majeure
Event"). Upon the occurrence of a Force Majeure Event, the party whose
performance is affected thereby ("affected party") shall promptly notify the
other party of such Event, and the parties agree to work together to resolve any
issues arising as a result of such Force Majeure Event. The affected party
agrees to resume performance as soon as reasonably possible. Notwithstanding the
foregoing, if the Force Majeure Event lasts for a continuous period of 90 days
or more, either party may elect to terminate this Agreement and/or any Order
affected by such Force Majeure Event upon written notice without penalty or
other consideration.
17. Remedies: Subject to the Article on Dispute Resolution contained in
this Agreement, the remedies stated in this agreement are cumulative and are in
addition to any other rights available in law or in equity.
18. Records and Audits: With respect to any Deliverables developed under a
Statement of Work for which Supplier is compensated on a time-and-materials
basis or otherwise reimbursed for expenses (rather than paid on a flat fee basis
for such development), Supplier shall maintain complete and accurate records of
all charges for such expenses incurred by Customer ("Reimbursable Expense
Records"), in accordance with generally accepted accounting principles, for a
period of twenty-four (24) months from the date of termination, cancellation or
expiration of this Agreement. Upon request, Supplier agrees to submit a copy
of receipts or other documentation of such expenses and copies of invoices
previously submitted to Customer. In addition, during Supplier's normal
business hours or as otherwise mutually agreed, Customer, through an independent
third-party auditor, may inspect and make copies of such Reimbursable Expense
Records only upon no less than 10 days prior written notice.
In addition, each party shall submit with each of its payments to the other
party a detailed report of the calculation of each such payment. Each party
will retain records relevant to its calculations of the payments made to the
other party during the term of this Agreement and for a two (2) year period
thereafter. Each party shall have the right, at its expense, acting through an
independent
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third-party auditor, to examine and audit such records at all reasonable times,
on at least ten (10) days notice to the other party, but no more than once every
six (6) months.
19. Assignment and Delegation: Neither party shall assign this Agreement,
in whole or in part without the prior written consent of the other party; and
any attempted assignment by such party shall be void; provided, however, that a
party may assign this Agreement to an affiliate, or to a successor to a majority
of the party's voting stock or to an entity that acquires all or substantially
all of the party's assets without having to obtain the other party's prior
written consent; and provided, further, that Supplier may delegate or
subcontract to a third party any or all of its obligations under this Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties,
their successors and permitted assigns.
20. Notices: Any notices required under this Agreement shall be sent to the
addresses of the parties stated below. Notice will be deemed given (1) as of
the day they are deposited with an overnight courier, charges prepaid, return
receipt requested, with a confirming telefax; or (2) as of the day of receipt if
they are deposited in first class U.S. Mail, charges prepaid, return receipt
requested; or (3) as of the day of receipt if they are hand delivered.
21. Advertising, Publicity: Neither party shall use the other party's
names, marks, codes, drawings or Specifications in any advertising, promotional
efforts or publicity of any kind without the prior written permission of the
other party, which permission shall not be unreasonably withheld, conditioned or
delayed.
22. Waivers: No waiver of any provision of this Agreement or any right or
obligation of a party shall be effective unless in writing, signed by the
parities. The failure of either party to enforce a right shall not constitute a
waiver.
23. Modifications or Amendments: Modifications and amendments to this
Agreement shall be in writing and signed by the parties.
24. Nonexclusive Agreement: This Agreement is nonexclusive and Customer
does not make any commitment or guarantee for any minimum or maximum amount of
purchases.
25. Severability: Any term of this Agreement which is held to be invalid,
illegal, unenforceable or void will in no way affect any other provision.
26. Several Liability: If more than one party is referred to as Customer,
then their obligations and liabilities shall be several, not joint.
27. M/WBE Subcontracting Plan: Support of Minority and Women Businesses is
part of Customer's ongoing business strategy. If required by Customer, Supplier
agrees and commits to use reasonable efforts to subcontract in accordance with
its subcontracting plan mutually agreed-upon by the parties, and such
subcontracting plan shall be incorporated herein as an attachment to the
Agreement entitled "M/WBE Subcontracting Plan."
28. Electronic Data Interchange ("EDI"): It is Customer's objective to
procure Services utilizing EDI. If Supplier is EDI capable, Customer and
Supplier shall enter into a Trading Partner Arrangement to implement EDI
transactions and such arrangement will be incorporated herein as an attachment
to the Agreement entitled "Electronic Data Interchange."
29. Year 2000 Compliance. Supplier warrants that Supplier's provision of
Services to Customer, and any related Deliverables provided to Customer under
this Agreement, will not be adversely affected by the occurrence or use of dates
before, on, or after January 1, 2000 A.D., including dates and leap years
between the twentieth and twenty-first centuries ("Millennial Dates"). Any
deliverables (including any software, hardware or firmware product(s) delivered
by Supplier to Customer) will without error or omission, create, receive, store,
process and output (collectively, "Compute") information related to Millennial
Dates. This warranty includes, without limitation, that the deliverables will
accurately, and without performance degradation, compute Millennial Dates, date-
dependent data, date-related interfaces, or other date-related functions
(including, without limitation, calculating, comparing, and sequencing such
functions). At Customer's request, Supplier will provide written evidence
sufficient to demonstrate adequate testing and conversion of the deliverable to
meet the foregoing requirements. The foregoing warranty is conditioned upon the
software, hardware, network and systems (other than Supplier's) with which the
Services and deliverables interface or interoperate also being unaffected by
Millennial Dates.
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30. Entire Agreement: This Agreement and all Statements of Work hereunder
constitutes the entire agreement between the parties for the Services and
Deliverables to be provided. Any prior oral or written communications or
agreements of the parties with respect to the Services or Deliverables not
expressly set forth in this Agreement or any Statement of Work are of no force
or effect. Any additional or inconsistent terms in any acknowledgment or
acceptance of an order, or any other document not in compliance with Article 23,
are of no effect.
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The Parties, intending to be legally bound, have caused this Agreement to be
executed by their authorized representatives on the dates set forth below.
U S WEST Communications Services, Inc. Critical Path, Inc.
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(Authorized Signature) (Authorized Signature)
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(Print or Type Name of Signatory) (Print or Type Name of Signatory)
President, U S WEST !NTERPRISE
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(Title) (Title)
December 9, 1998
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(Execution Date) (Execution Date)
Address for Purposes of Notices: Address for Purposes of Notices:
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Mailstop: CO H6 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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STATEMENT OF WORK #1 DATED DECEMBER 7, 1998
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To the
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MASTER SERVICES AGREEMENT DATED DECEMBER 7, 1998
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E-MAIL SERVICES
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(WEB-BASED E-MAIL)
THIS Statement of Work #1 for Email Services ("Email Agreement") is attached to
and made part of the Master Services Agreement. In the event any terms and
conditions of this Email Agreement conflict with the Master Services Agreement,
this Email Agreement shall control for the purposes of this Email Agreement
only.U S WEST
1. Provision of Services.
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1.1 Services to be Provided. Under the terms and conditions of this Email
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Agreement, CP shall provide, and U S WEST hereby accepts, e-mail outsourcing
services described in Exhibit A ("Services") which U S WEST may resell to
users ("Users") of U S WEST's Customer service ("U S WEST Service"). U S WEST
hereby agrees that it will access, re-sell and make the Services available to
Users only pursuant to Exhibit C attached to this Email Agreement, as may be
modified by CP from time to time upon notice to U S WEST, or under similar
terms and conditions as agreed to in advance by CP ("Terms of Use").
1.2 Services Introduction. The parties agree to work together in an
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expeditious and transparent manner to launch or transition Users to CP's e-
mail messaging system through which CP provides the Services ("CP System"). U
S WEST shall provide to CP information and materials, such as the domain name,
e-mail addresses and passwords, ("User Information") necessary for CP perform
the set-up and other initial services ("CP Transition Services") to launch or
transition the Users' to the CP System. Upon completion of the CP Transition
Services, U S WEST shall perform any necessary changes to the U S WEST Service
("U S WEST Transition Services") before Users will have access to the
Services.
1.3 Privacy. CP has a corporate policy to respect the privacy of its
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partners and their e-mail messages that are transmitted through the CP System
or by means of the Services. CP will only access and disclose information as
necessary to comply with applicable laws and government orders or requests, to
provide the Services, to operate or maintain its systems or to protect itself
or its customers.
1.4 Suspension or Termination. If CP becomes aware of or suspects any
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violation of the Terms of Use by U S WEST or any User, CP first shall attempt
to notify U S WEST and provide reasonable detail of such violation. The
parties shall use best efforts to promptly resolve the matter. However, CP
reserves the right to immediately suspend or terminate the provision of
Services to the User as reasonably necessary to protect CP's interests.
1.5 Modification of Services. During the term of this Email Agreement, CP
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will not, without U S WEST's prior consent (which consent shall not be
unreasonably withheld, delayed or conditioned), delete any of the features of
the Services identified in Exhibit A, Paragraph I, except that CP may without
U S WEST's consent substitute such features with new features that have
similar or improved functionality or as necessary to meet any applicable
legal, regulatory or industry-standard requirements or demands. CP may, and
reserves the right to modify the features and functionality of the CP System
from time to time. However, CP will not modify the CP System in a manner that
would significantly affect Users' use of or ability to use the Services,
without providing reasonable prior notice to U S WEST of any such
modification, no less than thirty (30) days.
1.6 Advertisements and Commercial Use. The parties agree that U S WEST may
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include U S WEST's own internal advertisements or advertisements for an
affiliate of U S WEST for display on U S WEST's Web Mail Page to Users and
that U S WEST shall not be obligated to pay CP any amounts for such
advertisements. As used in this Section, "affiliate" means an entity that
controls, is controlled by or is under common control with, U S WEST.
"Control" means having fifty percent or more of a corporate entity's voting
stock entitled to vote for its governing body or fifty percent or more equity
interest of a non-corporate entity. However, if U S WEST solicits any third
parties for advertisements to be included for display on U S WEST's Web Mail
Page, then U S WEST shall provide prompt written notice to CP, and CP shall
have the right to also solicit third parties for such advertisements. The
parties shall share in the net advertising revenues resulting from such third-
party advertisements in percentages to be mutually agreed but which shall be
proportionate to the effort, resources and services provided by each party
with respect to such advertising. The parties' respective shares and other
terms and conditions relating to such revenues (including payments and
reporting) shall be included in an addendum to this Email Agreement. Each
party shall be solely responsible for all obligations, liabilities and duties
under any and all agreements with third parties with regard to such
advertisements, unless otherwise expressly agreed in writing by the other
party. U S WEST agrees that it will resell the Services only bundled with
other U S WEST products and services and not as a stand-alone service or
product offering. In particular, and without limiting the generality of the
foregoing, U S WEST agrees that it will not resell the Services to, and that
none of the Users include or will include, an Internet service provider, a web
hosting company, or an email service
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provider. Other than such permitted resale as part of a bundled offering and
obtaining advertising to be included on U S WEST's Web Mail Page as provided
under this Email Agreement, U S WEST agrees that it will not otherwise make
commercial use of or generate income from the Services or the CP System.
In addition, U S WEST will assist in the sales of advertising inventory
through its sales channels for CP's customers that do not have the capability
to sell all of the advertising inventory for their Web-Email site(s), as
mutually agreed by the parties and subject to CP's customer approval if
necessary. Advertising revenues achieved through this relationship will be
split as required under the agreement between CP and CP's customers, and CP's
share after such split will be shared between U S WEST and CP as mutually
agreed.
2. Pricing and Payment.
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Pricing and Payment. Exhibit A specifies CP's charges for the Services and
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other payment provisions. All amounts payable hereunder are exclusive of any
sales, use, excise, property or any other taxes associated with the provision
of Services or of U S WEST's or Users' access to or use of the CP System. U S
WEST is responsible for payment of any and all such taxes (excluding taxes
based on CP's net income).2.2
3. Disclaimer of Warranties.
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3.1 CP and its suppliers make no warranties regarding the quality,
reliability, timeliness or security of the Services or the CP System or that
the Services or the CP System will be uninterrupted or error free. CP and its
suppliers assume no responsibility or liability for the deletion or failure
to store, or to store properly, e-mail messages. U S WEST and Users assume
the entire risk in downloading or otherwise accessing any data, files or
other materials obtained from third parties as part of the Services or by
means of the CP System, even if U S WEST or User has paid for virus
protection services from CP.
3.2 U S WEST shall be solely responsible for any warranties provided to Users
with respect to the Services or the CP System.
4. Service Outage Credit.
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4.1 In the event of disruption of provision of the Services or availability
of the CP System (other than any disruption from a Force Majeure Event) for a
continuous period longer than twenty-four (24) hours, U S WEST's sole remedy
shall be refund of a pro rata portion of the price paid for the affected
Services during such period of disruption. CP's entire liability, and U S
WEST's and Users' entire and exclusive remedy, under this Email Agreement for
any damages from any cause whatsoever, regardless of form or action, whether
in contract, negligence or otherwise, shall in no event exceed an amount
equal to the price paid for the Services out of which the claim arose.
5. Term and Termination.
--------------------
5.1 Term. This Email Agreement shall continue in effect from the Effective
----
Date for [**] period, and thereafter shall renew automatically for
successive one (1) year periods unless either party gives the other party at
least sixty (60) days prior written notice of its intent not to renew the.
5.2 Termination for Convenience. Notwithstanding the foregoing, either party
---------------------------
may terminate this Email Agreement at any time, without cause, upon ninety
(90) days prior written notice to the other party.
5.3 Termination for Breach. Notwithstanding the foregoing, either party may
----------------------
terminate this Email Agreement by giving to the other party written notice of
such termination and an opportunity to cure within thirty (30) days after
receipt of such notice, upon the occurrence of any of the following events:
(i) the other party materially breaches or defaults in any of the material
terms or conditions of this Email Agreement, (ii) the other party makes any
assignment for the benefit of creditors, is insolvent or unable to pay its
debts as they mature in the ordinary course of business, or (iii) any
proceedings are instituted by or against the other party in bankruptcy or
under any insolvency laws or for reorganization, receivership or dissolution.
5.4 Effect of Termination. Notwithstanding the foregoing, upon any notice of
---------------------
termination, CP shall provide reasonable assistance to U S WEST in the
migration of its e-mail system to a setup as reasonably requested by U S
WEST, and U S WEST agrees to pay for all Services rendered to U S WEST until
the migration is complete. If termination of this Email Agreement is due to U
S WEST's breach, U S WEST shall, in addition to payment of all Services fees,
be required to pay for CP's assistance in such migration at CP's then-current
time and materials rate and shall pay any out-of-pocket expenses incurred by
CP in connection with such migration. After migration, CP shall delete all
stored e-mail messages of U S WEST and Users on the CP System, cease
providing all Services and access by U S WEST and Users to the CP System.
Within thirty (30) days of the later of termination of this Email Agreement
or the date of migration completion, each party shall pay to the other all
accrued and unpaid fees.
5.5 Survival. Sections 2, 3, 4, 7.4, 7.5, and 9 and Exhibit A (as to
--------
amounts accrued but unpaid and paragraph B.3) shall survive any expiration
or termination of this Email Agreement.
Page 3
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
6. Ownership. CP owns and retains all right, title and interest in and to the
---------
Services provided, and the CP System made available, hereunder. As between U S
WEST and CP, U S WEST shall own all right, title and interest in the User
Information, subject to CP's right to use such User Information in performing
under, or as otherwise expressly permitted by, this Email Agreement. Further,
as between U S WEST and CP, U S WEST shall be responsible for all acts and
omissions of Users.
--------------------------------------------------------------------------------
The Parties, intending to be legally bound, have caused this Agreement to be
executed by their authorized representatives on the dates set forth below.
U S WEST Communications Services, Inc. Critical Path, Inc.
------------------------------------ -----------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ -----------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
President, U S WEST !NTERPRISE
------------------------------------ -----------------------------------
(Title) (Title)
December 9, 1998
------------------------------------ -----------------------------------
(Execution Date) (Execution Date)
Address for Purposes of Notices: Address for Purposes of Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
------------------------------------ -----------------------------------
Mailstop: CO H6 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ -----------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------ -----------------------------------
------------------------------------ -----------------------------------
Page 4
EXHIBIT A
---------
SERVICES, CHARGES AND PAYMENT
-----------------------------
This Exhibit A is attached to and made a part of the E-mail Agreement between U
S WEST and CP (the "Email Agreement") and is subject to the terms and conditions
of the Email Agreement.
A. Basic Services Fees - U S WEST agrees to pay CP a fee of [**] ("Mailbox
Fee") per mailbox per month for the first 500,000 web-based email accounts
provided to Users during the term of the Email Agreement. The price per
mailbox per month that U S WEST pays to CP shall decrease to [**] upon U S
WEST purchasing its 500,001 concurrent mailbox and shall decrease to [**]
per mailbox per month upon U S WEST purchasing its 1,000,001 concurrent
mailbox and will remain at this rate for so long as such level is
maintained or upon the occurrence of the MFC-Plus condition listed in
Section B below. The decreased price per mailbox shall be effective the
first day of the month following the month in which the applicable
threshold is reached As used herein, "concurrent" means that as of the
date the threshold level is reached, U S WEST shall have the applicable
number (threshold level) of mailboxes available for use by Users. For
example, in order for U S WEST to qualify to the [**] per mailbox monthly
fee, U S WEST at that time must have, and be paying CP for, no fewer than
500,001 mailboxes.
B. MFC-Plus Pricing: U S WEST is to receive Most Favored Customer-Plus ("MFC-
Plus") mailbox pricing with respect to webmail services provided hereunder
as follows: If after the Effective Date of this Email Agreement, CP enters
into an agreement with any U.S.-based portal ("Other Customer") that
provides a more favorable price package to such Other Customer for similar
webmail Services, in similar quantities, with similar mailbox requirements
and features and under similar terms and conditions as those provided under
this Email Agreement, U S WEST will have the option to adopt such a package
in addition to receiving [**] discount off the webmail fees specified in
Paragraph A above.
C. Joint Development: The parties may, from time to time, agree to jointly
develop certain products, features, services or other projects. Any
product to be produced by a joint development project undertaken by U S
WEST and CP will be governed by the terms and conditions of a separate
written agreement which shall, at a minimum, include the following terms:
. U S WEST and CP will jointly develop a project resource plan for any
proposed joint development.
. For any jointly developed product agreed upon by the parties, U S WEST
will receive a time-to-market advantage or no less than [**] before the
product is made generally available to other CP customers.
. At such time as jointly developed products are made available to any
3rd parties, U S WEST and CP will share in the royalty fees, and/or
usage fees associated with the licensing or use of the development
works, as mutually agreed, based upon the percentage of effort, funding
and intellectual property that U S WEST and CP has invested into the
development effort. Such royalty sharing may be perpetual for the life
of the product and any derivative products substantially based on such
work.
D. Premium Features Fees - U S WEST and CP agree to negotiate the fees for
future Premium Features ordered by U S WEST as referred to in Addendum 1 of
this Exhibit A.
E. Demographic Services and Fees -
1. For hosting and reporting services with respect to demographic
information of U S WEST's webmail users ("Demographic Services"), U S WEST
agrees to pay CP a non-recurring consulting fee for the development of
such Services, and upon development and availability of such Services, U S
WEST agrees to pay CP a monthly fee for ongoing Demographic Services. The
detailed scope and description of the Demographic Services, applicable
functional and performance specifications, reporting requirements, fees,
key assumptions and similar information with respect to the Demographic
Services will be mutually agreed to by the parties and specified in an
exhibit to be attached hereto.
2. Sale of Demographic Information. U S WEST intends to disclose its
Users' demographic information collected by CP hereunder to certain third-
party vendors who may desire to place or display advertisements and similar
promotional materials to such Users through the Services. U S WEST agrees
that it will share, as the parties shall mutually determine, the revenues
that U S WEST receives from such third-party vendors for any and all such
advertising and promotions. The parties agree that each party's share of
such revenues shall be proportionate to the effort, resources and services
provided by each party with respect to such advertising.
Page 5
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
3. Certain Responsibilities. The parties agree that the data
collected using the Demographic Services may be subject to applicable
privacy and similar laws and all use of the such data shall be in
accordance with all applicable laws, rules and regulations. U S WEST
agrees to indemnify CP for any and all claims, losses, damages, expenses or
liabilities ("Claims") arising out of the collection of such data (except
to the extent any such Claim is based upon CP's gross negligence or willful
misconduct) and U S WEST's disclosure and use of the Demographic
Information collected using the Demographic Services and reported by CP to
U S WEST.
F. Branding
1. Fees - U S WEST will pay to CP a one-time fee [**] for CP's
----
branding of the Web Mail Page. U S WEST will pay CP a one-time fee of [**]
for the development of an automatic sign-up page (at U S WEST's option)
and [**] for permanent signatures. Once approved (as provided in paragraph
2 below), CP shall only be obligated to make one change to the look and
feel of the branded Web Mail Page and the automatic sign-up page, if
applicable, at no additional charge. Any additional services or any
customization above and beyond the basic branding and development of the
Web Mail Page, automatic sign-up page, and signatures will be billed at $75
per hour, with a minimum of one hour per request.
2. Provision, Development and Approval - U S WEST shall provide CP
-----------------------------------
with all text and images ("Branding Materials") necessary for CP to brand
U S WEST's Web Mail Page. U S WEST warrants and represents to CP that U S
WEST has full power and authority to provide to CP, and to authorize CP's
use of, the Branding Materials provided by U S WEST for branding the Web
Mail Page, and agrees to defend and indemnify CP with respect to any claims
arising from CP's use of such Branding Materials. CP shall develop the
branded Web Mail Page using such Branding Materials and shall provide, or
otherwise make available to U S WEST, such developed Web Mail Page for U S
WEST's review and approval, which approval shall not be unreasonably
withheld, delayed or conditioned. U S WEST's approval shall be deemed
given if U S WEST does not provide to CP notice of its rejection of the
branded Web Mail Page within seventy two (72) hours of CP's provision of
it.
3. Proprietary Rights - U S WEST grants to CP a non-exclusive,
------------------
nontransferable, worldwide, royalty-free, irrevocable (during the term of
the Email Agreement) license to reproduce, display, perform, modify,
prepare derivative works of and otherwise use the Branding Materials for
the purpose of branding U S WEST's Web Mail Page and making such Web Mail
Page available through the CP Services to Users. U S WEST shall retain all
other proprietary right it may have in and to the Branding Materials. CP
shall retain all proprietary rights in and to the CP Services (not
including the Branding Materials as incorporated into U S WEST's Web Mail
Page) and all development tools, routines, subroutines, applications,
software and other materials (not including the Branding Materials) that CP
may use in connection with branding the Web Mail Page.
G. Support - As part of the Services, CP shall provide 2nd tier telephone
support to U S WEST twenty-four (24) hours a day, seven (7) days a week. In
addition, the parties agree that 1st tier support to Users shall be outsourced
to a third party jointly selected and managed by CP and U S WEST. CP shall
periodically invoice U S WEST, and U S WEST agrees to pay all such invoices, for
such 1st tier support.
H. Payment by U S WEST to CP - All fees for Services shall be applicable for
any month, or portion thereof, in which such Services are rendered.
Notwithstanding the foregoing, the fees for Services shall begin accruing, and
be payable by U S WEST to CP, upon the earlier of completion of the U S WEST
Transition Services or thirty (30) days after completion of the CP Transition
Services, as provided in Section 1.2 of the Email Agreement. CP will invoice U
S WEST each month for fees that have accrued during the previous month. All
fees are payable by U S WEST within thirty (30) days of the invoice date in
accordance with this Exhibit and the Email Agreement. In addition, if during
the previous month, CP performed any work on the branding of the Web Mail Page
as provided herein, CP will include in the monthly invoice, and U S WEST shall
pay, the applicable fees for such work. Payments received by CP after the due
date shall be subject to a late fee of one and one-half percent (1.5%) per
month, or, if less, the maximum amount allowed by applicable law.
I. Storage Capacity - Each mailbox provided hereunder shall have a maximum
storage capacity of 2.5 MB. U S WEST may purchase additional storage space from
CP upon payment of CP's then-current fees. CP shall notify any User that User's
mailbox is approaching or exceeds the maximum limit. Thereafter, if such User
exceeds the maximum storage capacity, CP may delete e-mail messages from the
affected mailboxes, at CP's discretion.
[**]
Page 6
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ADDENDUM 1
TO
EXHIBIT A
PREMIUM FEATURES
From time to time, CP makes available optional features ("Premium Features") of
the Services that, if ordered by U S WEST, shall be chargeable in addition to
the Mailbox Fee specified in Exhibit A. Upon availability of each Premium
Feature ordered by U S WEST, U S WEST agrees to pay CP the following fee:
----------------------------------------------------------
Additional Storage [**]/ add'l 5 MBs/month
----------------------------------------------------------
POP3 e-mail hosting [**]/year
----------------------------------------------------------
Pricing for future features to be agreed and negotiated separately. U S WEST
shall have the right to set its own retail prices at which U S WEST resells such
Premium Features to Users.
Page 7
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT B
---------
SERVICE LEVEL AGREEMENT
-----------------------
1. Performance
a) Average less than [**] seconds response time for [**] of requests. Measures
server response time only, not network transmission time.
b) Average [**] up time.
c) Post an approved message in the event of a system outage.
2. Monitoring/Reporting
a) Provide details on the method used to monitor performance times.
b) Provide monthly reporting which details server up time with the following
details per period:
. average response
. actual daily response time detail
. average server up time
. actual daily up time
This information will be emailed to U S WEST on third working day of each month
for the previous month's reports.
3. Escalation Procedures
a) Notify U S WEST via the following email addresses in case of a service
outage:
. ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
b) Notify U S WEST within [**] minutes of a service outage. Status information
to include:
. reason for the outage.
. ETA for service restoral.
. Frequency of outage updates
c) If U S WEST experiences a service outage and has not been notified by email
by Critical Path, U S WEST will contact the Senior System Administrator at
Critical Path by pager at 415/764-6203 and will be given the information
listed in 3.b).
d) Continue to notify U S WEST with updated status for the duration of the
outage.
e) Provide a post-incident summary. This summary should include:
. the cause of the problem.
. method used to correct the problem.
. measures Critical Path will take to prevent further occurrences.
4. Business Resumption
a) Critical Path must prove the ability to switch processing from the primary
server to a hot backup server within 30 minutes. Testing of this procedure
will be conducted as requested by U S WEST on a designated weekend by both
Critical Path and U S WEST personnel during Critical Path's maintenance
window.
b) Any modifications (by U S WEST) and/or network configuration changes
(including system maintenance) as well as upgrades and removal of devices
that impact the production and network connectivity need to be advised of
before they occur by designated/qualified personnel.
Page 8
[**] CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
INFORMATION CONTAINED IN THIS EXHIBIT. THROUGHOUT THIS EXHIBIT CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED FROM THE PUBLIC FILING AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT C
---------
TERMS OF USE
------------
Please read the following agreement carefully.
You must accept the agreement to be able to use the U S WEST Service.
1. Acceptance of Terms of Use
U S WEST's mail service ("U S WEST Service") is provided free of charge to
registered users (each, a "User") under these Terms of Use. BY COMPLETING THE
REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR
AGREEMENT TO BE BOUND BY THESE TERMS OF USE. These Terms of Use are the entire
agreement between you and U S WEST with respect to the services provided by U S
WEST.
2. Registration Information; Disclosure
User agrees that U S WEST may disclose to third parties certain information, in
the aggregate, contained in users' registration applications, including User's
application. U S WEST will not disclose User's name, address, e-mail address or
telephone number, without User's prior written consent, except to the extent
necessary or appropriate to comply with applicable laws or regulations or in
legal or administrative proceedings where such information is relevant. U S WEST
reserves the right to terminate any User's account if U S WEST learns that such
User has provided U S WEST false or misleading registration information.
3. Modifications of these Terms of Use
U S WEST may modify these Terms of Use from time to time in its sole discretion.
U S WEST will provide User with reasonable notice of any such changes, and
User's continued use of the U S WEST Service will be deemed to constitute User's
acceptance of any such changes.
4. U S WEST's Rights
U S WEST may modify or discontinue User's account or the U S WEST Service with
or without notice to User, without liability to User or any third party. Content
presented to User or otherwise available through the U S WEST Service provided
by U S WEST or a supplier is protected by copyright, trademark, service marks,
patents or other proprietary rights or laws. User shall only be permitted to
use this content as expressly authorized by the provider. User may not copy,
distribute or create derivative works from such contents without express
permission.
5. Contents of Messages
It is U S WEST's policy to respect the privacy of its Users. U S WEST does not,
and cannot, monitor, censor or edit the contents of User's e-mail messages. User
alone is responsible for the contents of User's messages, and the consequences
of any such messages. User agrees that it will not transmit or disseminate:
(i) advertising, chain letters, spam, junk mail or any other type of unsolicited
e-mailing (whether commercial or informational) to persons or entities that have
not agreed to be part of such mailings; (ii) harassing, libelous, abusive,
threatening, obscene or otherwise objectionable materials or materials which
infringe or violate any third party's copyright, trademark, trade secret,
privacy or other proprietary or property right, or that could constitute a
criminal offense, give rise to civil liability or otherwise violate any
applicable law or regulation; or (iii) viruses or other harmful, disruptive or
destructive files. User agrees that it will not use or attempt to use another
person's or entity's account, service or system without authorization from the
owner, nor will User interfere with the security of, or otherwise abuse, the U S
WEST Service, system resources or accounts, or any network or another user's use
or enjoyment of the mail services. User may not forge header or address
information. U S WEST will only access and disclose information as necessary to
comply with applicable laws and government orders or requests, to provide the
services, to operate or maintain its systems or to protect itself or its
suppliers
If U S WEST becomes aware and determines, in its sole discretion, that User is
violating any of these Terms of Use, U S WEST and its suppliers reserve the
right to terminate User's account, impose fines and/or termination charges, and
take any other action to enforce U S WEST's and its suppliers' rights.
6. Account and Password
User is responsible for maintaining the confidentiality of its account number
and password. User shall be responsible for all uses of its account, whether or
not authorized by User. User agrees to immediately notify U S WEST of any
unauthorized use of its account.
Page 9
7. Disclaimer of Warranties
USER EXPRESSLY AGREES THAT USE OF THE CUSTOMER SERVICE IS AT USER'S SOLE RISK.
THE CUSTOMER SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
CUSTOMER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT. CUSTOMER DOES NOT MAKE ANY WARRANTY THAT THE
CUSTOMER SERVICE WILL MEET USER'S REQUIREMENTS, OR THAT THE CUSTOMER SERVICE
WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES CUSTOMER MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CUSTOMER
SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH
THE CUSTOMER SERVICE. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CUSTOMER SERVICE IS AT
USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF SUCH MATERIAL AND/OR DATA. CUSTOMER DOES NOT MAKE ANY WARRANTY REGARDING ANY
GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE CUSTOMER SERVICE OR ANY
TRANSACTIONS ENTERED INTO BY USE OF OR THROUGH THE CUSTOMER SERVICE. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM CUSTOMER OR
THROUGH THE CUSTOMER SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE
HEREIN.
8. Limitation of Liability
CUSTOMER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE
INABILITY TO USE THE CUSTOMER SERVICE OR FOR THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED
OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO BY MEANS OF OR
THROUGH THE CUSTOMER SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR
ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF CUSTOMER OR
ITS SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. E-mail Message Storage
U S WEST does not assume any responsibility for the deletion or failure to store
e-mail messages. If User exceeds the maximum permitted storage space, U S WEST
reserves the right to delete e-mail messages from the affected mailboxes, at its
discretion.
10. Promotional Messages
U S WEST and/or third parties may, from time to time, send e-mail messages to
User containing advertisements, promotions, etc. U S WEST does not make any
representation or warranty with respect to any such e-mail messages or any goods
or services which may be obtained from such third parties, and User agrees that
U S WEST shall have no liability with respect thereto.
11. Indemnification
User agrees to indemnify and hold U S WEST, its suppliers and their respective
affiliates, officers, directors, employees and agents, harmless from any claim,
action or demand, including reasonable attorneys' fees, made by any third party
due to, arising out of or related to User's use of the U S WEST Service or the
violation of these Terms of Use by User, including without limitation the
infringement by User, or any other user of User's account, of any intellectual
property or other right of any person or entity.
12. Applicable Law
These Terms of Use shall be governed by and construed in accordance with the
laws of the State of Colorado, without giving effect to its conflict of law
provisions.
13. Third Party Beneficiary
Critical Path Inc., as a supplier of U S WEST, shall be a third party
beneficiary of these Terms of Use and entitled to the rights and remedies
available to third party beneficiaries.
14. Age Consent
"I hereby attest to the fact that I have read and understand the Terms of Use.
I voluntarily accept and will comply with all terms and conditions. I am at
least eighteen (18) years on the date of such acceptance, or a parent or
guardian has read and understands the Terms of Use and will ensure that any use
by a minor will comply with such Terms of Use."
I ACCEPT/I DECLINE
Page 10
STATEMENT OF WORK # 2 DATED December 10th, 1998
-------------------
to the
SERVICES AGREEMENT DATED December 10th, 1998
-------------------
This Statement of Work #2 is attached to and made part of the Services
Agreement. In the event any terms and conditions of this Statement of Work
conflict with the Services Agreement, this Statement of Work shall control for
the purposes of this Statement of Work only.
--------------------------------------------------------------------------------
Scope of Services: This Statement of Work #2 specifies the Deliverables and
additional Services to be provided by Supplier to Customer with respect to the
Email Services provided under Statement of Work #1 as follows:
Deliverables:
1. Software that allows Customer's users and prospective users of
Customer's email services to register for an email account, and login
to such account, over the internet. Advertising banners will be
displayed whereby a user or prospective user can click and be
redirected to the advertiser's web site.
2. A database (design and content) of demographic information provided by
each user of the registration and login pages.
3. The license to use NT and SQL servers for the database.
4. The application front-end source code (used to build the web pages),
connectivity source code (code which communicates to Supplier's APP to
create a mailbox).
Deliverables #1 and 2 and 3 shall be considered to be Work Product, and
Deliverable #4 shall be considered Background Technology, as defined in and
pursuant to the terms and conditions of Article 6 of the Agreement. In
addition, deliverable #4 shall be considered Confidential Information of
supplier, as defined in and pursuant to the terms and conditions of Article 5 of
the Services Agreement.
Services:
1. Supplier will provide the web hosting of the account registration and
login pages (Deliverable #1) until Customer is able to itself host
such information which should be within 6 months from the date
Services are launched.
2. Supplier shall provide reports to Customer of the demographic
information obtained though the account registration and login pages
on a weekly basis. In addition, statistics regarding the
advertisements included on such pages (number of click throughs and
user demographics) will be sent to Customer as part of the weekly
report. Reports will be generated and provided to Customer in flat
file format.
Service Sites: Services will be performed at the following locations:
Xuma Technologies LLC Critical Path
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Page 11
Service Specifications/Performance Standards: Services shall be performed by
Supplier according to the following Specifications and Performance Standards.
(Include all technical, functional, operational and/or performance
Specifications. Include all materials to be furnished to Customer. This may be
in the form of an Exhibit if too large to include as part of the Statement of
Work.)
US West will be provided with a web application, database and technical
environment to:
- Capture US West customer registration & demographic information
- Interface to Critical Path's Application Provisioning Protocol
- Display Advertising & provide redirection on a user login page
- Host this environment in the Xuma Data Center
- Provide Weekly reports to US West
- Provide a foundation for future interactive lookup of this information by
US West and their customers
1 Registration & Login Application
1.1 Registration Page:
This will be a hosted page where a US West customer enters demographic data:
- name/password
- zipcode
- phone
- gender selection
- age range selection
- hobbies
- frequency of offers
- offer categories (e.g. fast food, travel, computing, sports, automotive
- identify whether customer would like to receive coupons
- registration information can be updated
(US West will provide a zip code database to be cross referenced. If user is
not within US West's region, then a message will be displayed that they are
outside of the territory and a mail box cannot be established. Statistics for
these users will still be kept.)
1.2 Create Mailbox:
- Once the user has registered, a mailbox will be created through a java
interface to Critical Path's APP. Mailbox accounts can be updated
through the Mail Administration Center
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1.3 Login Page:
Once the customer has registered, they will be taken to a login page to
enter their id and password.
- On the login page, six ad banners will appear.
- User will be redirected to proper URL based on ad selection.
- Click-through & hits per banner statistics will be kept for each user.
- The login page will allow users to select Spanish or English
1.4 Reporting:
A weekly report will be delivered to US West in flat file format that
identifies:
- Ad Statistics (click-throughs & hits per banner)
- Demographic data per user
1.5 Technology:
The technology platform for hosting this information will be:
- Windows NT version 4.0
- Microsoft SQL Server database
- Java Bean interface to Critical Path's APP Server
1.6 Testing:
The application will be tested at Xuma and Critical Path.
2 Web Hosting Services
2.1 Description:
Xuma's web hosting services for the US West website include all of the
following full service features to allow US West to maximize it's internet
investment while maintaining a state of the art website. These features
include:
. Connectivity
- High-capacity, fault tolerant UUNET connectivity
. Data Center Provisions
- Highly scalable data center facility, fully secured
- Advanced firewall and network security management and protection
- Full UPS and customer-dedicate circuit breaker power protection
. Commerce Server Specifications
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- Nightly tape backup of customer data and database logs. Offsite storage
and rotation.
- Experience ecommerce engineers available onsite to add additional
functionality upon request.
. Site Monitoring
- Detailed hit count and activity tracking with customized reports.
- Comprehensive traffic and trend analysis of web server logs.
- First class database administration support with regularly scheduled
maintenance.
- Proactive database performance diagnosis and tuning via scheduled
database optimization scripts.
- Custom database activity tracking and reporting.
Assumptions
. All relevant specifications, business rules, data and html are made
available in a timely manner.
. A US West contact is available to clarify any questions/issues regarding
the application functionality.
. Xuma does not have any rights to use, sell, reproduce, distribute,
perform, display, prepare derivative works based on, modify or otherwise
exploit US West's specific content or rules.
. US West can migrate the entire production and development environment (Web
pages, database and APP communications) to US West's Data Centeras part of
a separate phase of this project.
This Statement of Work #2 identifies only the Deliverables and Services, and
applicable fees, for the first phase of a potentially multi-phased project. Any
additional phases, and any additional deliverables, services and fees as part of
such phases, shall be separately addressed in a different Statement of Work as
mutually agreed.
Service Fees: During the term of this Agreement, fees for Services rendered
under this Agreement shall be held firm and are as follows:
A not to exceed fee of $60,000 to develop the Deliverables in accordance with
the Specifications. Monthly fee not to exceed $3,000 for web hosting (bandwidth,
reports, 4 hours of free maintenance). All maintenance work beyond 4 hours per
month will be charged at $175 per hour.
Labor, Tools, Equipment and Materials: Supplier will be responsible for
supplying all labor, tools, equipment and materials necessary to provide the
Services.
Acceptance: Upon receipt of each Deliverable, Customer shall have seven (7)
days in which to inspect and test such Deliverable and to notify Supplier if
such Deliverable does not materially conform to the Specifications of this
Statement of Work. If such notice is provided within such time period, Supplier
shall promptly correct such nonconforming Services at its own expense. If no
notice is received within such time period, or if Customer uses the Deliverable
for commercial purposes, the Deliverable will be deemed accepted.
--------------------------------------------------------------------------------
Project Managers:
Customer: Supplier:
--------- ---------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
612 664 3136 415-777-9641
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
Status Reports: Supplier will provide Customer with written Status Reports on a
weekly (weekly, monthly . . etc.) basis detailing the progress of the Services
------
and any problems that may affect the milestone dates for completion of Services.
Project Changes: Any changes to the Scope of Services requested under this
Agreement must be in writing signed by both parties.
--------------------------------------------------------------------------------
The parties, intending to be legally bound, have caused this Statement of Work
to be executed by their authorized representatives on the dates set forth below.
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U S WEST Communications Services, Inc. Critical Path, Inc.
------------------------------------ -----------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------ -----------------------------------
(Print or Type Name of Signatory) (Print or Type Name of Signatory)
President, U S WEST !NTERPRISE
------------------------------------ -----------------------------------
(Title) (Title)
December 9th, 1998
------------------------------------ -----------------------------------
(Execution Date) (Execution Date)
--------------------------------------------------------------------------------
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