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Exhibit 4
This AGREEMENT (the "Agreement") is entered into as of the Commencement
Date by and between Ultrastar Internet Services, LLC ("Ultrastar"), a New Jersey
limited liability company, and Village ▇▇▇▇▇.▇▇▇, Inc. ("Village"), a New York
corporation.
WHEREAS, Village is a provider of certain Internet and other related
Services as defined in Attachment B (as hereinafter defined);
WHEREAS, Ultrastar desires to engage Village to establish and offer the
Services, as described in Attachment B, to Subscribers associated with
Ultrastar.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
Except as otherwise defined herein, capitalized terms shall be defined as
provided in Attachment A hereto.
2. MARKETING RESPONSIBILITIES
Village grants Ultrastar a non-exclusive, non-transferable right to market
the Service described in Attachment B. During the term of this Agreement,
Ultrastar shall exercise reasonable efforts to market and promote the Services.
3. SERVICEMARKS.
On each of Ultrastar's client's websites that Village is providing the
Services, Ultrastar shall use best efforts to cause the phrase "In affiliation
with Village" to be displayed in the appropriate credits portion of such
client's website. In addition, Ultrastar shall identify Village as a strategic
partner on its website.
4. ULTRASTAR SERVICE AND TRADEMARK.
4.1 Grant of License. Subject to the limitations set forth herein, Ultrastar
grants to Village a non-exclusive, royalty-free license to use the Trademarks
and Service Marks (collectively the "Marks") of Ultrastar as necessary in order
to identify, consummate transactions with and provide the Services to
Subscribers concerning Services, including placement of Trademarks on marketing
materials and/or on
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the Branded Portal Page, if applicable. Village acknowledges that Ultrastar owns
the goodwill associated with its Marks. Village further agrees that, except to
the extent specifically provided for herein, it shall not have any right to use,
nor acquire by its use or otherwise any right, title, or interest in or to the
Trademarks. All use of the Trademarks by Village pursuant to this agreement
shall inure to the benefit of Ultrastar and Village shall acquire no rights in
the Trademarks by virtue of such use. Village shall not use the Trademarks in
conjunction with any other name, term or ▇▇▇▇ so as to form a combination ▇▇▇▇.
Village will indemnify and hold harmless Ultrastar against any liability or
damages arising from alleged wrongful acts or omissions of Village while using
Ultrastar's name and/or Trademarks in marketing, promoting and consummating
lease transactions or any violation of Village's obligations under this
Agreement.
4.2 Approval. Ultrastar shall have the right to approve all marketing and
promotional material (including press releases) and/or websites using
Ultrastar's Trademarks, which materials shall be submitted to Ultrastar at least
fourteen (14) days prior to actual usage and shall not be disseminated without
Ultrastar's approval.
5. EXPENSES AND TAXES.
All expenses, costs, fees and taxes incurred by Ultrastar in the
performance of its duties and the exercise of its rights hereunder shall be the
sole responsibility of Ultrastar. Village will not incur any expenses on behalf
of Ultrastar unless such expenses are approved in advance by Ultrastar. Should
Subscription Fees become subject to any federal, state and/or local tax in the
future, Village shall have the obligation to collect such taxes and shall have
the right to pass the cost of such taxes to the Subscriber by raising the
Subscription Fee, in an amount not to exceed such taxes plus the reasonable
actual costs to Village of administering such tax.
6. INDEPENDENT CONTRACTOR.
Except as otherwise provided in this Agreement, neither party shall act or
have the power to act for the other party in any respects whatsoever. The
relationship between Village and Ultrastar shall be and shall be deemed to be
that of independent contractors. No agency, partnership, joint venture, or
employment is created as a result of this Agreement. Neither party is authorized
to bind the other in any respect whatsoever.
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7. ULTRASTAR'S REVENUE AND BILLING
7.1 Billing Responsibility. In the event that Ultrastar receives any
amounts from Subscribers to which Village is entitled hereunder, Ultrastar shall
remit such amounts to Village within thirty (30) days of receipt of such
amounts. Ultrastar has no responsibility to pay any Subscriber's fees not paid
by Subscribers.
7.2 Subscription Fee. Ultrastar shall set the Subscription Fee for
Subscribers pursuant to Attachment A. Village shall not have the right to change
the Subscription Fee unless directed to do so by Ultrastar.
7.3 Ultrastar Revenue. Subject to the terms and conditions contained in
this Agreement, Village shall, within thirty (30) days after the end of
Village's monthly billing cycle, forward to Ultrastar, Ultrastar's Net Revenue
Share for that billing cycle as defined in Attachment A. Payment of Ultrastar's
Net Revenue Share will be accompanied by the following information: Subscriber's
first and last name, phone number, e-mail account, Subscriber's product and
Ultrastar's Net Revenue Share.
7.4 Survival of Ultrastar Net Revenue Share. To the extent Subscribers
desire to retain Village's Services, Ultrastar shall be entitled to receive, on
an ongoing basis, Ultrastar's Net Revenue Share for all Subscribers obtained
during the term of this Agreement unless and until the occurrence of one of the
following events: (a) Ultrastar violates Section 9.1(iii), below; OR (b) the
Agreement is terminated because Ultrastar ceases to do business in the normal
course, becomes or is declared insolvent or bankrupt, is the subject of any
proceeding relating to its liquidation or insolvency which is not dismissed
within ninety (90) calendar days, or makes an assignment for the benefit of its
creditors. Ultrastar shall have the right to audit the books and records of
Village for the sole purpose of determining if the Ultrastar's Net Revenue Share
is being properly paid. The cost of any such audit shall be at the Ultrastar's
expense unless such audit should disclose that any such payments were underpaid
by five percent or more, in which event such cost shall be borne by Village.
7.5 Eligible Subscription Fees. Notwithstanding any other provision of
this Agreement, Village is only obligated to pay Ultrastar's Net Revenue Share
on collected Subscription Fees. Any Subscription fees that are refunded or
otherwise returned to Subscribers shall no longer be considered collected and
Village shall have the right to retroactively reduce Ultrastar's Net Revenue
Share, after such refunds have been awarded, to reflect such refunds.
8. VILLAGE RESPONSIBILITIES
8.1 Services. Village shall provide the Services to the Subscribers and
the Members as called for herein for each of the Ultrastar's clients within 15
business days of receiving final clearance from Ultrastar to provide services
for such client. Ultrastar is paying Village the Net Revenue
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Share for all of the Services. If Ultrastar notifies Village that it should
discontinue providing a particular Service (or all of the Services) (which is
its right), (i) Village will do so in cooperation with Ultrastar and the new
vendor, if any, performing such service and will continue to cooperate with any
such new vendor and Ultrastar to maintain state of the art websites and
communities and (ii) the parties will negotiate in good faith an appropriate
reduction in the Net Revenue Share.
8.2 Access and Ownership of Data. During the term of this Agreement
Village shall make available to Ultrastar all information Village has access to
or has collected with respect to the Subscribers ("Subscriber Information").
Ultrastar owns the subscriber information, but grants to Village the license to
use the Subscriber Information during the term to perform its obligations
hereunder and Village shall use such information for no other purpose without
the prior written consent of Ultrastar. Upon Ultrastar's request, Village shall
provide Ultrastar with credit card information of Subscribers. Such credit card
information shall not be disclosed by either party and shall only be used by the
party responsible for billing services for the limited purposes of billing
services requested by the Subscribers pursuant to this Agreement. The parties
shall indemnify, and hold the other party harmless, including reasonable legal
fees, against any third-party claims arising out of or relating to any breach of
the disclosure and use provisions of this paragraph.
8.3 Subscriber Agreements. Services will be provided to Subscribers in
accordance with a Subscriber Agreement. Subscribers' rights to use the Services,
including the related software, shall be as evidenced by such agreements.
8.4 Liability Limitation. Neither Village nor Ultrastar shall be liable to
each other or Subscribers for the inability or failure of Village to provide
Services to any Subscriber or for the discontinuation or modification of any or
all Services due to the actions of any unaffiliated third-party. Village shall
include language in the Subscriber agreement limiting Ultrastar's liability to
Subscribers for any failure to provide the Services.
8.5 Acceptance of Subscribers. Ultrastar acknowledges and agrees that
approval or acceptance of any potential Subscriber shall be in the reasonable
discretion of Village. Village shall have no liability to Ultrastar for, nor
shall Ultrastar's obligations hereunder be affected in any way by, Village'
disapproval or rejection, of any Subscriber or Subscribers, Village's failure to
complete any Subscriber transaction by reason of such disapproval or rejection,
or Village's decision to terminate the provision of Services to any Subscriber.
8.6 Village billing of Ultrastar's Subscribers. Village shall ▇▇▇▇ and
collect the Subscription Fees from Ultrastar's Subscribers on behalf of
Ultrastar. Village shall, within thirty (30) days after the end of Village's
monthly billing cycle, remit to Ultrastar, the Ultrastar Net Revenue Share for
that billing cycle. For the avoidance of doubt, as between Ultrastar and
Village, the Subscribers are "owned" by Ultrastar and Village is billing on
behalf of Ultrastar and is
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offsetting its fee from such ▇▇▇▇▇▇▇▇ for the Services (i.e., all of the
payments made by Subscribers for the Services are Ultrastar's gross revenue).
8.7 Non-Solicitation Village agrees not to solicit Ultrastar's Subscribers
for any product or service without first obtaining the express written consent
of Ultrastar. In addition, Village shall not solicit athletes, sports teams,
sports leagues, musical entertainers (individuals or bands)(collectively,
"Sports/Entertainment Properties") to perform any of the services Ultrastar
delivers to its clients. The immediately preceding sentence shall not apply to
Sports/Entertainment Properties with whom Village on the date hereof is involved
in substantive negotiations. Nor shall such provision apply during any three
month period, after the six month anniversary hereof, in which (i) the aggregate
of Village's Net Revenue Share is less than $50,000 and (ii) Village is making
less than 80% of the Net Revenue Share it received during the prior 3 month
period as a result of Ultrastar preventing Village from providing certain
Services which they had previously provided pursuant hereto.
8.8 Hosting. During the sixty days immediately after the date hereof
Village will host Ultrastar's client's websites on its servers. After such
initial period the parties will negotiate a more permanent Hosting strategy. The
hosting shall be preformed at a cost of $500.00 Per month Flat Bandwidth fee and
$50.00 per month per server for the first sixty days. And $500.00 per month per
megabyte of bandwidth and $1000.00 per month per rack for the period thereafter.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Subscriber Contact. During the term of this Agreement, Village shall
not directly contact any Subscriber that is utilizing the Services for the
purpose of: a) inducing them to switch to a relationship with Village in an
attempt to bypass payment of commissions to Ultrastar, b) inducing them to
terminate the use of the Services for any reason, c) disparaging the reputation
of Ultrastar, or d) interfering with Ultrastar's relationship with the
Subscribers.
9.2 Actions Against Ultrastar and Village. Each of the parties hereto will
hold the other party hereto harmless from and against any and all liability,
loss, costs, damages or expenses (including reasonable attorney fees) in
connection with or arising from the actions or omissions of such party in
connection with such party's obligations under this Agreement.
9.3 Quality of Service. Village represents and warrants that it will
provide Ultrastar with the quality of service that Village is provided by its
network providers. Village further represents that Mega Pop and Level 3 are
currently the primary dial-up network providers, and are contractually obligated
to be Village's network providers for the term of this Agreement and Ultrastar's
clients through this relationship shall have full access to Mega Pop and Level
3's United States network. Village further represents that Covad, Inc. is
currently the primary DSL provider, and is contractually obligated to be
Village's DSL provider for the term of this
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Agreement and Ultrastar's clients through this relationship shall have full
access to Covad, Inc.'s United States network. Village is responsible for the
quality performance of all services required by Ultrastar.
10. CONFIDENTIALITY.
10.1 Proprietary Information. Each of the parties hereto will be exposed
to and will have access to the other party's trade secrets and other
confidential and proprietary information (hereinafter collectively referred to
as, "Proprietary Information"). Such Proprietary Information includes: (i) any
and all versions of proprietary computer software (including source code and
object code) and documentation; (ii) technical information concerning each
party's services, including diagrams, flow charts, drawings, test results,
know-how and processes; (iii) information concerning each party's business,
including the operations or internal structure of each other, cost information,
profits, sales information, accounting and unpublished financial information,
business plans, markets and marketing methods, customer lists and customer
information, potential customer lists and information, purchasing techniques and
advertising strategies, and any method or procedure relating or pertaining to
services or products developed by the other party hereto or contemplated by the
other party hereto to be developed; (iv) any past, present or future research or
marketing information of the other party respecting the business or operations
of the other party hereto or customers or potential customers; (v) information
concerning the other party's personnel; (vi) information submitted by customers
or the other party's vendors, employees or consultants; and (vii) any other
information not generally known to the public which, if used or disclosed, could
reasonably be expected to adversely affect the other party's business, including
the terms of this Agreement. Without limiting anything contained herein, Village
shall also comply with the provisions detailed in Village's System Security and
Customer Confidentiality Statement attached hereto as Attachment C.
10.2 Non-Disclosure. Each party hereto shall keep the other party's
Proprietary Information, whether or not prepared or developed by such party, in
the strictest confidence. Each party hereto will not use or disclose such
information to any person without the other party's written consent.
10.3 Injunction. In the event of a breach or threatened breach by one of
the party's to this Agreement of the provisions of this Section, the other party
shall be entitled to apply for an injunction restraining such party from
disclosing, in whole or in part, said Proprietary Information. Nothing herein
shall be construed as prohibiting either party from pursuing any other remedies
available to such party for any such breach or threatened breach.
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11. LIMITATION OF LIABILITY.
Neither party shall have any liability to the other party or to
Subscribers for failing to provide the Services except for such liability as may
directly result from such party's gross negligence or willful misconduct. Any
representation or warranty from either party to the other party or to a
Subscriber shall be expressed only in a written agreement. EACH OF THE PARTIES
HERETO MAKES NO OTHER WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. EACH PARTY AGREES TO RELEASE AND HOLD HARMLESS THE OTHER
PARTY FOR ANY OBLIGATION OR LIABILITY FOR THE LOSS OF USE, LOSS OF TIME,
INCONVENIENCE, COMMERCIAL LOSS OR ANY OTHER INDIRECT, CONSEQUENTIAL, SPECIAL OR
INCIDENTAL DAMAGES AS A RESULT OF THE SERVICES OR THE USE OR SALE THEREOF. Each
party hereto agrees to indemnify and hold the other party harmless from and
against all loss, cost and expense incurred by such other party directly or
indirectly resulting from the extension by such party, its employees or agents,
of representations or warranties to Subscribers not authorized by such other
party or the alteration or modification (or attempted alteration or
modification) of any representation or warranty actually offered in writing by
such other party.
12. EVENTS OF DEFAULT AND REMEDIES.
12.1 Events of Default. The following events, if occurring during the term
of this Agreement, shall constitute Events of Default hereunder: (i) the failure
by either party to perform or observe, in any material respect, any covenant,
obligation, or agreement to be performed or observed by it under this Agreement
unless the breach of such covenant, obligation or agreement has been cured (if
curable) within thirty (30) days after written notice thereof from the other
party; (ii) any representation or warranty made by Ultrastar or Village to
Ultrastar or Village in this Agreement or in any document furnished or to be
furnished by the party in connection herewith shall prove incorrect in any
material respect; (iii) Ultrastar's material violation of any written Village
policy or procedure previously provided to Ultrastar unless the breach of such
covenant, obligation or agreement has been cured (if curable) within thirty (30)
days after written notice thereof from the other party; (iv) Village's material
violation of any written Ultrastar policy or procedure previously provided to
Village unless the breach of such covenant, obligation or agreement has been
cured (if curable) within thirty (30) days after written notice thereof from the
other party or (v) any attempt by Ultrastar or Village to assign or otherwise
transfer any of its respective rights or responsibilities, other than in
accordance with the terms of this Agreement, without the other party's express
written consent.
12.2 Remedies. Upon the occurrence of an Event of Default, the
non-defaulting party shall, in addition to all other remedies it may have under
this Agreement and except as otherwise limited within this Agreement, be
entitled to exercise all of the remedies afforded under applicable law with
respect to a material breach of a contract. Nothing in this Section shall be
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deemed to limit the non-defaulting party to an action for damages or specific
performance with respect to any such Event of Default; no exercise of any right
or remedy by the non-defaulting party shall limit or restrict that party's right
to exercise any other right or remedy available at law or hereunder.
13. TERM AND TERMINATION.
13.1 Term. This Agreement shall be effective as of the date executed by
Village, below, and shall continue in full force and effect for a term of one
(1) year and shall automatically renew for consecutive one (1) year periods
unless either party provides notice of cancellation at least ninety (90) days
prior to the end of any applicable term, unless terminated earlier pursuant to
the terms of this Agreement.
13.2 Immediate Termination. This contract shall be immediately terminable
by either party upon the occurrence of any of the following events: (i) the
insolvency, bankruptcy, receivership or dissolution of Village or Ultrastar; or
(ii) Village has a general failure and is unable to provide the Services for
more than five (5) consecutive days.
13.3 Ultrastar Termination. Ultrastar shall have the right to terminate
this Agreement at any time by providing Village with thirty (30) days prior
written notice of such intent.
13.4 Events of Default. Upon the occurrence of an Event of Default, this
Agreement may be terminated by the non-defaulting party upon thirty (30) days
written notice to the defaulting party; provided the defaulting party has not
cured such default prior to the expiration of such thirty day period.
14. EFFECT OF TERMINATION.
14.1 Use of Marks. Upon termination of this Agreement: (i) Ultrastar shall
cease each and every use of any Village Trademark, regardless of whether or not
Village shall have given Ultrastar prior written approval for such use and all
unused promotional and marketing materials, reflecting the Trademarks and
prepared by or on behalf of Ultrastar in connection with this Agreement shall be
destroyed or returned to Village and shall no longer be used by Ultrastar; and
(ii) Village shall cease each and every use of any Trademark of Ultrastar and
its clients, except any such use that is necessary to continue providing the
Services to existing Subscribers such as the use of a domain and the use of
Ultrastar's logo in a Branded Portal Page if applicable
14.2 Ongoing Right to Revenue. Village shall pay to Ultrastar Ultrastar's
Net Revenue Share for so long as Subscribers obtained during the term of this
Agreement continue to pay Subscription Fees pursuant to the terms of Section 7,
above.
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15. MISCELLANEOUS.
15.1 Survival. The provisions of Sections 8.1, 8.7, 9.1, 9.2, 10, 12, 14
and 15 shall survive the termination, non-renewal or expiration of this
Agreement.
15.2 Force Majeure. In the event that either party is hindered, delayed,
or prevented by Act of God, flood, hurricane or fire, performance of this
Agreement, the obligations of the party shall be suspended and proportionately
abated during the continuance of such condition, and the party so affected shall
not be liable in damages or otherwise for its failure to perform, unless such
condition continues for more than thirty days whereupon the other party hereto
may terminate this Agreement.
15.3 Notice. Any notice required by this Agreement shall be effective and
deemed delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested, properly
addressed and with the correct postage, one (1) business day after pick-up by
the courier service when sent by overnight courier, properly addressed and
prepaid or one (1) business day after the date of the sender's electronic
confirmation of receipt when sent by facsimile transmission or electronic mail.
15.4 Severability. In the event that any of the terms of this Agreement
are or become illegal or unenforceable, such terms shall be null and void and
shall be deemed deleted from this Agreement, and all the remaining terms of this
Agreement shall remain in full force and effect.
15.6 Applicable Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, as such laws apply to
contracts made therein and to be fully performed therein by residents thereof.
Each of the parties hereto submits to the jurisdiction of federal and state
courts sitting in New York City, and irrevocably agrees that all actions or
proceedings relating to this agreement may be litigated in such courts, and each
party hereto waives to the fullest extend permitted by law, any objection which
it may have based on improper venue or forum non conveniens to the conduct of
any proceeding in any such court.
15.7 Binding Agreement. This Agreement is for the benefit of the parties
hereto and shall be binding upon and inure to the benefit of their successors,
permitted assigns and surviving entities of any merger, sale, consolidation or
reorganization.
15.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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15.9 Non-compete; assistance. Village will not compete with Ultrastar in
the entertainment field (including, without limitation sports teams, sports
leagues and individual athletes and music bands, groups or individual artists)
and shall refer any inquiries in this area to Ultrastar.
15.10 Assignment. Neither party shall, directly or indirectly, assign in
whole or in part, any of its rights or obligations hereunder without the prior
written consent of the other party to such assignment, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, Ultrastar has the right
to Reclaim any or all of the Services (other than raw dial-up) pursuant to
Section 8.1 without the consent of Village.
15.11 Commencement Date. The Commencement Date of this Agreement shall be
the date this Agreement is executed by Village.
15.12 Press Releases. Neither party shall issue any press release with
respect to this Agreement or the subject matter hereof or any of Ultrastar's
clients without the consent of the other party. In the event a press release is
required by law (including securities laws), the obligated party shall be
permitted to comply with such law, provided, however, that the other party is
afforded ample opportunity to review and comment on such press release.
15.13 Waiver of Breach. The waiver by either party of a default or breach
or the failure by either party to claim a default or breach of any provision of
this Agreement by the other party shall not be or be held to be a waiver of any
subsequent default or breach of the same provision or of any other provision of
this Agreement.
15.14 Amendment. This Agreement cannot be amended or supplemented except
by another agreement in writing executed by the parties hereto. The parties
hereto acknowledge that the Internet is a constantly evolving environment and
will therefore negotiate with the other party in good faith with respect to any
suggested amendments to this Agreement.
16. Non-Poaching.
During the Term, and for a period of 12 months after termination neither party
shall hire the other party's employees without the consent of the other party.
17. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto
concerning the matters covered herein and supersedes all prior agreements and/or
understandings, between the parties, whether written or oral, concerning the
matters addressed herein; and there are no understandings, agreements,
representations or warrants, express or implied, which are not specified in
writing and signed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by there
duly authorized officers as of the date executed below.
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President VP, Business Affairs
Date: Date:
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ATTACHMENT A
DEFINITIONS
Ultrastar. Ultrastar Internet Services, LLC, a New Jersey limited
liability company.
Ultrastar's
Net Revenue
Share Means the aggregate of (i) with respect to Subscribers
receiving the Services (including dial-up/DSL), the aggregate
of all Subscription Fees received by Village, on behalf of
Ultrastar, with respect to such Subscribers, less $9.20 per
month for dial-up subscribers, or less $43.95 per month for
128k ADSL (subscribers or $69.95 per month for 384k ADSL
subscribers, for each such paying Subscriber fee paid (which
is the compensation paid to Village for the Services rendered
hereunder) and (ii) with respect to Members receiving the
Services (excluding dial-up and DSL), the aggregate of all
Subscription Fees received by Village, on behalf of Ultrastar,
with respect to such Members, less $1.00 per month for each
such paying Member (which is the compensation paid to Village
for the Services rendered hereunder).
Representative. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or such other person specifically designated
by Village.
Net Revenue Share: Village will offer a wholesale price of $9.20
per dial-up Subscriber per month (for unlimited Internet
access per month), $43.95 for 128K ADSL subscribers per month,
and $69.95 for 384k ADSL subscribers per month, and $1.00 per
Member per month.
Fulfillment: Village will be responsible for the production, duplication
and packaging of all CD's at Ultrastar's expense. At
Ultrastar's option, Ultrastar may produce, duplicate and
package the CD's on its own behalf and furnish them to the
Village call center. Village will provide fulfillment services
using a dedicated private branded 800 number inbound call
center. Village will ship CD's at Ultrastar's expense of $.12
per CD plus postage to potential Ultrastar subscribers within
5-7 days of request.
Hosting: Hosting is defined as all of Ultrastar's hosting needs, of any
kind and nature, including, without limitation, audio and
video streaming and multimedia and shall be performed in
accordance with Attachment D.
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Member: Any user (which may include entities in addition to natural
persons) of the Services (other than dial-up) who is obligated
to pay the member Subscription Fees and for whom Village has
been informed of Subscriber's relationship to Ultrastar, by
name or Identification Number.
Member's page: Village will ▇▇▇▇ Members a set fee for access into the
Member's pages. Village will retain $1.00 per Member per month
for all of the Services on Attachment B.
Services. Internet access services and other related services, products
and software provided or made available to a Subscriber by or
on behalf of Village as fully described in Attachment A and B,
hereto, as amended from time to time pursuant to Section 14 of
this Agreement.
Subscriber. Any user of the Services who is obligated to pay the
Subscription Fees and for whom Village has been informed of
Subscriber's relationship to Ultrastar, by name or
Identification Number. Unless the context otherwise provides,
the phrase "Subscriber" shall include "Members".
Subscriber
Agreement. Agreement between Village and a Subscriber, in
substantially the form attached hereto as Attachment _, which
may be amended from time to time as mutually agreed to by the
parties hereto.
Subscription Fee. The periodic fee determined by Ultrastar, in its sole
discretion, that each Subscriber is required, pursuant to the
terms hereof, to pay each month, and which may be billed
monthly, quarterly or semi-annually, for the Services, payable
by via automatic charge to an appropriate credit card,
electronic check debit, or prepayment unless otherwise agreed
to. Ultrastar will provide Village 30-day prior written
notification relating to any change which necessitates changes
in either of the Subscription Fees.
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ATTACHMENT B
VILLAGE PRODUCT AND SERVICES LIST
TO BE PROVIDED TO SUBSCRIBERS AND MEMBERS, OTHER THAN DIAL-UP WHICH IS
PROVIDED TO SUBSCRIBERS ONLY
SUBSCRIBER/MEMBER SERVICES
o 56 kb V.90 network with more than 900 US Points of Presence, which
Village currently believes covers in excess of 90% of the U.S. population
30% of the Canadian population. If Village's coverage falls below 90% of
the U.S. population, Village shall use best efforts to achieve coverage
in excess of 90%. Canadian dial-up access is also priced to end users for
$14.95 and Ultrastar will have the right to increase its offering as
Village expands its ability to provide dial-up.
o 128k ADSL and 384k ADSL as currently available through Covad, Inc. and as
it expands. Both services require a $99.00 installation fee, but currently
a $99.00 rebate exists from Covad which will be passed on to Subscribers.
Village will also provide DSL modems to Subscribers at a cost of $99.
o 5 email addresses per subscriber
o 5 MB of unread email storage space
o 10 MB of personal Web space
o IE 5.0 and higher for Windows 95, 98, NT 4.0 win 2000
o IE 4.5 and higher for Macintosh 8.0 and higher
o Microsoft Outlook Express email client
o User guide and installation guide.
o Online Registration
o Web based registration and installation without browser download
o Authentication and Billing and customer support for each.
o Network based Proxy filtering
o Customer support to cover all Services including, without limitation:
1. It Village's intention to offer the best customer service in the
industry.
2. Customer service is provided via toll-free phone number, web site,
and Email.
3. Customer service shall be available 7 days, 24 hours a day within 20
days.
4. Response times, including a reporting/tracking system to confirm
such performance:
a. On average, 90% of all calls answered within 300 seconds
b. All Email problems solved within 24 hours
c. On average, less than 10% of calls will go to voice mail
during business hours
d. Call back goal for calls in voice mail is within 1 hour
e. Call back goal for email requests is within 4 hours or next
day if called in late
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f. All calls will be logged
5. Resolution times:
a. Average wait time on hold not to exceed 3 minutes
b. Average call length for technical support generally should not
exceed 15 minutes Goal of 75% of service requests resolved on
the first call
6. Village shall support all of Ultrastar's community tools (currently
provided by Web Crossing and WeTalk Network, Inc), provided Ultrastar
shall, at its sole cost and expense, provide a person to train Village's
customer support staff on the use of such community tools.
o Fully private branded service via 800 number customer portal page and
fulfillment.
o At Ultrastar's option, Village will provide to Ultrastar web-based
bulletin boards, web-based and I.R.C., e-mail, chat groups, news groups,
instant-messaging and other community tools developed by Village or made
available by Village to its other clients of a first rate quality
Additional Charges May apply.
o Unlimited Blanket e-mails to Subscribers
o A reasonable number of dial-up comp accounts per Affinity.
o Unlimited complimentary accounts/passwords to the Member Pages. Such
accounts/passwords may be limited to a 30 day usage period.
o Start-up kit for Subscribers, includes:
o An installation CD featuring a simple, user friendly, and
self-installing process.
o Numerous add-on programs, including: Internet Explorer, Netscape
Navigator, etc.
o MAC and PC Compatible
o Additional space for content provided by Ultrastar.
o Order submission Options
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Attachment C
Village
System Security and Customer Confidentiality Statement
Village recognizes that the Internet represents a powerful resource and tool.
Village also recognizes that the power of the Internet presents security and
confidentiality issues which must be addressed.
o All Internet domain names are to be properly registered.
o Network based Proxy Filtering or other filter is provided to End Users to
ensure Internet content deemed in appropriate for their domain can be
blocked.
o Spamming, the practice of sending unsolicited e-mail to end users, will
not be supported. Domain owners who want to e-mail the end users within
their Internet community must take the necessary steps to ensure those end
users who do not wish to receive unsolicited e-mail are given the
opportunity to indicate that choice and honor it.
o Village, or its contracted suppliers, will NOT sell the end user list of
any domain. Domain owners who want to sell the names, addresses or e-mail
addresses of the end users within their Internet community must take the
necessary steps to ensure those end users who do not wish to be on any
sold list are given the opportunity to indicate that choice and honor it.
o Village, or its contracted suppliers, will NOT place advertising on any
domain's front page or any page whatsoever without the express written
permission of the domain owner. Village, or its contracted suppliers, will
NOT solicit the domain's end users for any product or service without the
express written permission of the domain owner and Ultrastar.
o Village, and its contracted suppliers, will make every effort to maintain
the appropriate level of security and confidentiality required to maintain
the integrity of each domain, including e-mail, and Internet community it
establishes.
o Village, or its contracted suppliers, may contact a domain's end user(s)
to resolve administrative or billing issues such as, but not limited to:
eligible application information, billing credit card issues, network
access clarification, e-mail naming conflicts, etc.
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Attachment D
HOSTING
I. System Availability
All servers and their corresponding services are to have 99.9%
availability at all times other than scheduled outages.
Scheduled Outages
Maintenance outages, if necessary, will be conducted every Monday between
the hours of 2AM and 4AM Eastern Time. Maintenance outages will include,
but are not limited to, the installation of upgrades, service packs, and
routine server or application configuration changes.
Other maintenance outages may be necessary from time to time. Customers
will be notified as least one week in advance of these outages, and
temporary workarounds will be put in place if at all possible.
Unscheduled Outages
While every effort is made to ensure minimal downtime, problems sometimes
do occur. If an emergency outage is required for any reason, Village will
attempt to notify Ultrastar with estimated downtime and repair status.
II. Response Time
Depending upon severity level, the following are the maximum response
times for network, server or service problems.
Severity Levels
1. Severity ▇▇▇▇▇ ▇ - ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Time
Any interruption to the following services is sufficient
justification for escalation to severity level one.
o DNS
o Network Connectivity
o Radius Authentication
o Mail Server
o Web Server
o 800 Dialup Numbers
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Severity Level 1 problems will be resolved as quickly as possible and take
precedence over all other problems.
2. Severity Level 2 - 4 Hour Response Time
Any inability for the client's Web Page to not be accessible by the
World Wide Web community qualifies for escalation to severity level
two
Severity Level 2 problems will be resolved as quickly as possible.
If a Severity Level 2 problem is unresolved after 8 hours, it will
be automatically escalated to Severity 1.
3. Severity Level 3 - 24 Hour Response Time
Any request for routine modifications, upgrades, or additions to
existing servers or services will be treated as severity level
three.
Severity Level 3 issues will be addressed by Account Management, and
time to resolution or implementation will be determined and agreed
upon by Ultrastar and Village.
Escalation Procedures
Upon confirmation and assessment of the severity level of an incident the
customer will contact Village technical support at the following number:
877/ WORLD58.
Upon contacting Village Customer Support, the customer, or their
representative, will immediately be given a Problem ticket number as well
as verbal confirmation of the severity level of the incident.
The customer will be contacted for confirmation of problem resolution
immediately prior to the closing of any open ticket regardless of the severity
level. Only the customer can authorize the closing of an open ticket.
In addition, Ultrastar shall be able to contact the following person in the
event of any problem:
▇▇▇▇▇ ▇▇▇▇▇▇ Phone #: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Phone #: ▇▇▇-▇▇▇-▇▇▇▇
III. Server Configuration
Fault Tolerance
Village will insure that all reasonable steps are taken to insure that
failure of one system or server will not result in cascade malfunctions
affecting other services. For example, Village will see to it that mail
services are not hosted on the same machine as web
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services thus insuring that at least partial functionality is maintained
in the event of catastrophic server malfunction.
Redundant Systems
Village will ensure that critical systems are configured and maintained in
a manner that insures uninterrupted operation. Any failure resulting in
loss of redundancy will immediately generate a problem ticket of severity
level 2. Complete failure of any redundant system will be cause for
immediate escalation to severity level 1. Redundant Systems include:
1. DNS - Both primary and secondary DNS servers will be maintained at
all times.
2. Connectivity - Village will ensure that routed traffic destined for
or originating from customer servers will be immediately and
automatically rerouted around any failed network component.
Web Server Performance
Village will ensure that all Village-owned servers maintain certain
performance levels. Depending upon the severity of the problem, if any of
these performance levels are exceeded for a period of over 1 hour, a
problem ticket will be generated, and the customer notified either
verbally or via e-mail. If it is determined that Village-owned servers
exceed performance levels due to excessively high usage on one customer
web-site, that customer may be asked to work with account management to
resolve the issues.
1. Disk Utilization - 70% or less.
2. Average CPU Utilization - 50% or less.
3. Average Memory Utilization - 70% or less.
Hardware Maintenance
Village Equipment Maintenance - Village will ensure that common
replacement parts including hot swappable drives and network cards are
available or obtainable in a sufficiently timely manner to insure that all
turnaround commitments described in Section II are met.
VI. Data Management
Backup Procedures
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Full backups of all mission critical data related to Village equipment,
will be performed on a daily basis without interruption to any customer
services. These backups will include, but are not limited to, the
following data:
o Router Configurations
o Radius Data
o User Home Directories
o Web Sites
o Email
Tapes will be rotated every two weeks. A full backup from the 2nd Monday
of each month will be stored offsite by the end of the 2nd Thursday of
each month. Offsite tapes will be stored for two months.
Restoration Procedure
Data will be restored in accordance with the procedures and severity
levels discussed in Section II.
Backup Integrity Checks
Backups will periodically be tested to insure that restoration and
coverage is functioning in accordance with the items listed above.
VII. Network Management
Bandwidth
Village will insure that bandwidth utilization is routinely monitored to
insure compliance with the following statistics:
1. LAN Utilization
Average network utilization for all internal network segments
related to customer servers and services will remain under 30%.
2. WAN Utilization
Backbone connectivity will be maintained in a manner that insures a
committed information rate of not less than 3.072 Mbits/sec and
saturation levels under 70%. Village will continuously monitor all
WAN links to insure
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prompt customer notification of any network outage and immediate
escalation to severity level 1.
VIII. Reporting and Capacity Planning
Village maintains various reports to ensure adequate provisioning of
network connectivity, server load and configuration, server performance,
website statistics and problem ticket tracking. These may be available to
customers on an as-needed basis.
Periodically, Village will review customer server and bandwidth
utilization, and make recommendations based upon these reports. Village
will advise the customer if a capacity-planning meeting is necessary. The
customer may also request a capacity-planning meeting based upon their
assessment of future growth.
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