Exhibit 10.27
USW/USi Contract Execution Copy
U S WEST/USinternetworking
MARKETING/SERVICES AGREEMENT
1. INTRODUCTION
(a) This agreement is entered into this 30 day of January, 1999, by
and between U S WEST Communications Services, Inc. and U S WEST Interprise
America, Inc. Colorado corporations (together referred to as "U S WEST") and
USinternetworking, Inc. a Delaware corporation ("USi").
(b) U S WEST is a provider of telecommunications, Internet and
integrated data services; and
(c) USi is an Internet Managed Application Provider, or iMAP,
integrating Internet communications, network and data center management and
the use of "packaged" application software and related implementation and
ongoing support; and.
(d) USi wishes to create a relationship with U S WEST for the
purposes of selling, purchasing and otherwise marketing iMAP Services (as
hereinafter defined) to U S WEST's existing and future customers (each a
"Customer" and collectively, the "Customers); and,
(e) Each party wishes to create a relationship with the other for
the purposes of selling and purchasing network transport services from, or
through, each other, maximizing volume discounts available; and,
(f) The parties wish to work together for future product and
services innovations; and
(g) The parties wish to provide for other services and arrangements
in connection with the purchase and marketing of the Services (as hereinafter
defined).
(h) THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties, intending to be
legally bound, hereby agree as follows:
2. PURPOSE OF AGREEMENT
(a) U S WEST and USi wish to enter into a contractual teaming
arrangement for the creation and distribution of network services, Internet
Protocol Services, hosted applications, system integration services and
comprehensive customer service. Each party will purchase services from the
other for purposes of creating service packages. The goal is to provide
customers a robust portfolio of enterprise application and access solutions
not currently available from any other single source. Quality metrics,
customer experience, and performance must not vary widely between U S WEST
and USi clients
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[CONFIDENTIAL TREATMENT] means that certain confidential material has been
filed separately with the Securities and Exchange Commission.
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using the same services. Both parties wish to promote their brand names in
the offering made to end user customers.
This Agreement and U S WEST's ability to sell each iMAP Service
hereunder is subject to, and contingent upon, the agreement(s) USi may have
with the Third Party Software Application Provider(s) (as defined below) and
such Provider(s) independent review of, and continuous consent to this
Agreement.
3. DEFINITIONS
(a) "AGREEMENT" means this Marketing/Services Agreement, and any and
all attachments and schedules attached simultaneously with the execution of
the Agreement or agreed upon and executed subsequent hereto.
(b) "AVAILABLE" - shall describe the situation where facilities can
reach specific addresses with no incremental charges for backhauling or
buildout.
(c) "CHANGE IN CONTROL" shall mean change in ownership of more than
51% of either party.
(d) "CLIENT ASSISTANCE TEAM or CATs" shall mean teams of USi CLIENT
care professionals who have the expertise to handle end-user Customer
inquiries regarding end-user and application issues over the phone.
(e) "COMPETITIVE PRICE" - shall mean that price is equal to, or less
than, price provided by other parties/vendors for the same Products and
Services provided by U S WEST under the terms of this Agreement.
(f) "COORDINATED SERVICES TEAM OR CST": Following the execution of
this Agreement U S WEST shall create a Coordinated Services Team ("CST")
responsible for the coordination of: (i) Implementation Services; (ii)
Solution Services; (iii) Billing Services; and (iv) Monitoring Services. The
primary purpose of this team will be to assist various internal U S WEST
personnel and vendor-partner personnel in coordinating the product support
needs for U S WEST Products. The CST will perform, INTER ALIA, the following
functions:
(f.1) CUSTOMER COMMUNICATIONS. The CST will serve as a
contact point for Customers buying Products from a U S WEST sales
representative.
(f.2) USi COMMUNICATIONS. The CST will serve as a single
point of contact for USi personnel needing product support assistance for U S
WEST-provided Products sold by a USi sales representative.
(f.3) IMPLEMENTATION SERVICES. The Implementation Services
cluster of the CST will coordinate and project manage all aspects of Product
implementation including design, order processing, service activation, and
service acceptance.
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(f.4) SOLUTION SERVICES. The Solution Services cluster of
the CST will coordinate and project manage issues relating to service
outages, repair, help desk support, problem resolution, and solution
acceptance.
(f.5) BILLING Services. The Billing Services cluster of the
CST will coordinate and project manage issues relating to Customer billing,
credits, and collections.
(f.6) MONITORING Services. The Monitoring Services cluster
of the CST will be responsible for the coordination of the parties' system
performance monitoring needs including proactive trouble notification and
proactive problem resolution.
(f.7) AVAILABILITY. The CST will always be available for
its internal and external customers: 24 hours a day, 7 days a week, 365 days
a year.
(g) "CUSTOMER(S)" means the end-user(s) to whom U S WEST sells iMAP
services to under this Agreement.
(h) "CUSTOMER ADMINISTRATION FUNCTIONS" - shall mean the same
services and functions also referred to as Service Support.
(i) "END USER" shall mean the end user of the Product(s) sold.
Customer shall not mean customer of record, which is assigned a separate
meaning under this Agreement.
(j) "Exclusivity" shall mean: 1) that U S WEST is USi's exclusive
sales channel of iMAP Services in U S WEST's 14-state region as well as to
U S WEST's National Accounts and Protected Customers listed in Schedule D,
which shall be amended by mutual consent of the Parties' respective Executive
Vice Presidents for Sales at least once per calendar quarter; and 2) that USi
is excluded from entering into any similar marketing/services agreements
within U S WEST's 14-state region with any of the following competitors of
U S WEST: other Regional ▇▇▇▇ Operating Companies, all Independent/Competitive
Local Exchange Carriers, and all Interexchange Carriers or cable television
operators.
(k) "iMAP SERVICES" - refers to the collective bundling of any and
all of USi's consulting and implementation services, customization, hardware
and software applications (as described in Schedule B) and access to USi's
Internet-based data center and network
(l) "IN-REGION" shall include the following 14 states: Arizona,
Colorado, Idaho, Iowa, New Mexico, Minnesota, Montana, Nebraska, North
Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.
(m) "MOST FAVORED CUSTOMER" - refers to most favorable pricing and
terms available to other similarly situated customers purchasing similar
quantities of the same products and services from U S WEST.
(n) "PACKAGED PRODUCT"- shall mean a packaged solution that includes
hosted applications and network services that support access to them. The
network services shall
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include but not be limited to Frame Relay, ATM, Internet Access, Security
Services, and Virtual Private Networking.
(o) "PRE-QUALIFIED SALES LEAD"- refers to a sales lead that has
passed the initial screening done in stage one of the sales process and the
pre-qualification form has been successfully completed.
(p) Order fulfillment and Service provisioning may also be referred
to as "PRESALE SERVICE SUPPORT" services and functions. All other services
and functions listed above may also be referred to as "POST-SALE SERVICE
SUPPORT" services and functions.
(q) "PRODUCT OR PRODUCTS" shall mean the list of USi and U S WEST
products and services made available for joint marketing, sales, and support
under this Agreement as described on Exhibit A, which is attached hereto and
made a part hereof.
(r) "PRODUCT QUOTA"- refers to sales of individual, bundled iMAP
Services sales, such as Sagent iMAP solutions that U S WEST will be required
to sell in accordance with the provisions of Schedule C.
(s) "REQUIREMENTS ANALYSIS" shall mean the analysis USi's consulting
and implementation teams perform to determine what iMAP services are best
suited for a Customer before an iMAP Services agreement is entered into.
(t) "SERVICE SUPPORT" shall refer to those services and functions
provided to customers including but not limited to the following:
- Service provisioning
- Network monitoring
- Customer notification
- Billing
- Managed repair
- Customer database management
(u) "SERVICES" shall mean the services each party may purchase from
the other, including the iMAP Services U S WEST purchases from USi and the
Internet access, managed firewall service, ATM and VPN services USi purchases
from U S WEST, all of which are described in Schedules A and B.
(v) "STAND-ALONE SERVICES"- unbundled delivery of any portion of the
iMAP Services, as well as other services delivered independently, including
but not limited to training and time and material implementation services
(w) "THIRD PARTY SOFTWARE APPLICATION PROVIDERS"- refers to the
companies that USi has entered into, or will enter into agreements with to
provide licenses, software, applications and other components to the iMAP
services and have agreed to permit U S WEST to market their products pursuant
to this Agreement.
(x) "TOTAL iMAP SALES QUOTA"- refers to the required level of sales
made of the bundled iMAP Services, excluding stand-alone services, as
described in Schedule C.
(y) "WHOLESALE PRICE" - refers to the quoted price U S WEST pays
USi, based on a calculation of retail price less a negotiated discount.
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4. SERVICES
(a) Throughout the term of the Agreement, each party may purchase
from the other the services set forth on Schedule A and Schedule B attached
hereto and incorporated herein by reference (collectively, the "Services").
The fees to be charged for the Services are set forth in Schedules A and C,
attached hereto and incorporated herein by reference.
(b) The parties may agree to include additional Services or delete
existing Services that are discontinued or deleted from this agreement. The
other party will be notified 90 days prior to discontinuance of any Services,
subject to the terms and conditions of USi's contracts with its third party
software application providers.
(c) Each party reserves the right to modify, alter, improve or
change any and all of its Services covered by this Agreement and this
Agreement will cover the sales of Services as they may be modified, altered,
improved or changed by each party from time to time. A party wishing to
modify, alter, improve or change one or more of its Services shall provide
the other party with written notice of all such modifications, alterations,
improvements and changes. Such written notice shall be provided no less than
30 days prior to any modification, alteration, improvement or change.
(d) Each party will notify the other with respect to the
availability of new products and services. The parties may choose to
negotiate these new products and services into this agreement.
(e) The management and sale of new products and services not
described in this document or the Schedules will be negotiated at the time of
introduction of such new products and services. Nothing in this section is
intended to limit the parties' ability to separately develop new products and
services.
(f) Both parties are free to package other products and services not
listed on the product and services Schedules A and B from other providers to
enhance the overall solution to the customer.
5. U S WEST RESPONSIBILITIES
(a) U S WEST will provide "Most Favored Customer" pricing to USi for
inclusion into the total solution to the customer. Within its region, U S
WEST will offer regulated services at tariff rates on a pass-through basis. U
S WEST will also price CPE to USi at levels allowed by existing contracts
either for resell or internal consumption. Maintenance and support for CPE
will be at wholesale prices. All prices are found on the U S WEST product
list entitled Schedule A.
(b) U S WEST will be the exclusive USi sales channel within U S
WEST's fourteen state region and to its National Accounts and protected
customers listed in Schedule D. U S WEST will be responsible to manage the
sales activities of its account teams to meet or exceed sales objectives.
(c) U S WEST will be responsible for packaging, pricing, billing,
collecting, servicing and account control for those sales initiated and
closed by U S WEST.
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(d) U S WEST will work with USi to create packages from the parties'
Services to create competitive offerings.
(e) U S WEST will target the Service to its customers where
integrated solutions are required. If U S WEST chooses not to pursue a
potential sales opportunity with a Customer in or out of its 14 state region,
or a Customer refuses to negotiate or enter into an agreement with U S WEST
for the sale of iMAP services, U S WEST will promptly notify USi within 3
business days of that opportunity or Customer so that a USi sales team may
follow up and close the opportunity.
(f) U S WEST will be USi's customer of record, for pricing and
billing purposes, on all iMAP Services provided to U S WEST's customers. USi
will maintain end customer records only to the extent that it is required
within the agreed upon customer support model, and to provide in advance an
itemized monthly invoice payable 30 days after receipt by U S WEST.
(g) U S WEST will provide office space for two (2) USi employees at
their Denver facility, co-located, to the extent possible, with the
appropriate channel and product management from U S WEST. This space will be
available by the end of February 1999. Future requirements will be reviewed
as the overall relationship evolves and grows.
(h) U S WEST agrees not to directly solicit any employees of USi for
employment at US WEST while this Agreement is in place.
(i) U S WEST may resell USi stand-alone implementation Services on a
non-exclusive basis.
(j) If U S WEST's Customer prematurely terminates its contract for
iMAP Services with U S WEST, unless such termination is directly caused by a
material breach of the provisions of this Agreement by USi, U S WEST will be
responsible for an accelerated payment to USi of 60% of: 1) the remaining
unpaid value of the Customer contract; or 2) the equivalent of 36 months of
Customer contract value, whichever is less. The accelerated payment from U S
WEST to USi shall be due within 30 days of the Customer's premature
termination.
6. USi RESPONSIBILITIES:
(a) USi will provide iMAP Services to U S WEST at discounted price
levels as described in Schedule C and shall implement services in accordance
with the sales process and intervals listed on Schedule E.
(b) USi shall provide professional support Services for pre-sale
site assessment, requirements analysis, statement of work, and project plan
for implementation Services at discount rates identified in Schedule C. U S
WEST will engage and compensate USi for these Services for every U S WEST
iMAP Customer that reaches the pre-sale site assessment/requirements stage.
It is at U S WEST's discretion whether the end Customer bears the cost of
this Service.
(c) USi will provide training for the first 12 months and offer
sales and product training Services thereafter on a fee basis.
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(d) USi will calculate the monthly end Customer cost for each iMAP
Service product sold through the U S WEST channel as part of the analysis
completed in 6b, above. USi will then apply a predetermined discount to reach
a wholesale monthly recurring fee that USi will charge US WEST for the
duration of the Customer contract. US WEST will be responsible for end
Customer pricing, billing and collection. The discount structure is
identified in Schedule C.
(e) USi will bear the implementation labor risk for effort expended
on implementing within the scope of requirements analysis and statement of
work developed by USi for US WEST Customers. In the event of out of scope
labor increases, USi reserves to the right to increase the quoted wholesale
price to US WEST. It is at U S WEST's discretion whether the end Customer
bears the increased scope cost.
(f) USi will staff one Business Development Manager in-Region, and
one technical Sales Engineer per [CONFIDENTIAL TREATMENT] in quota assigned.
These managers will be co-located at US WEST facilities in Denver.
(g) USi will commit to using U S WEST's Out of Region (OOR) services
for customer requirements contingent upon the provisioning of services in a
timely manner, at Competitive Prices, within industry standards for
reliability and availability, and to the extent such OOR services are
consistent with USi's iMAP service architecture. Services available OOR from
U S WEST are Frame Relay, ATM and Internet Access and Security and VPN
Services.
(h) USi will be customer of record on all Services provided by U S
WEST as part of a total solution to an end user customer where U S WEST
initiates an inter-LATA WAN sales process.
(i) USi shall provide to U S WEST a method for demonstrating the
functionality of all iMAP applications over the world-wide web with
production-like representations of the various products U S WEST will be
expected to sell. This demonstration capability will include but not be
limited to customer sales presentations, internal training, etc.
(j) USi agrees not to directly solicit any employees of U S WEST for
employment at USi while this agreement is in place.
(k) USi will maintain end customer records only to the extent that
it is required within the agreed upon customer support model, and to provide
an itemized monthly invoice in advance to US WEST, payable 30 days after
receipt.
(l) USi will work with U S WEST to create packages from the parties'
services to create competitive offerings. USi's responsibility and obligation
under this Agreement to provide Products and iMAP Services are contingent
upon the existence, terms and conditions of USi's agreements with each of its
Third Party Software Application Providers.
(m) USi may sell stand-alone implementation services within and
outside of U S WEST's 14-state region. Contingent upon the subsequent mutual
agreement of the parties, USi may establish a finder's fee for implementation
service leads originated by U S WEST in its 14-state region and closed by USi.
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(n) USi shall offer U S WEST the same pricing methodology as USi
uses to determine pricing for USi's direct customers on pre-sale Requirements
Analysis and iMAP consulting and implementation Services.
7. CUSTOMER SUPPORT SERVICES/TRAINING
(a) Generally, customers sold by either party will be managed by
that party, therefore, all customer contact will be through the selling
organization. Components of the overall customer solution will be supported
by the party that supplies that portion of the solution. The parties agree to
work together to define interfaces, processes and handoffs that provide a
superior level of service. The parties will share customer experience metrics
to insure a consistent level of service.
(b) The party that closes the sale will be responsible for total
management of the customer relationship regardless of who provides the actual
component services to the end user customer. The parties will mutually agree
on the support model and interfaces employed. The parties will also mutually
agree to procedures in the case of a customer transfer to USi for closing if
the Customer does not fit with the U S WEST sales model.
(c) Both parties will run operations centers for their respective
services while customers will have the option of choosing from different
support levels. Where actual support work is done will be transparent to
customers. The parties agree to structure support offerings around
capabilities of each other. The parties further agree that they will provide
service levels in accordance with the baseline service levels described in
Schedule F.
(d) The parties agree to coordinate service readiness processes to
insure that the overall solution to the customer is delivered in a
coordinated fashion, and that all service elements, irrespective of whether
USi or U S WEST components, are available within defined production timelines.
(e) Billing will be performed by the parties for each of their
respective customers, therefore billing explanations, reviews, collections
and bad debt will be the responsibility of the selling party.
(f) USi will make available to U S WEST all pertinent support
training. Training will be provided at no additional cost to U S WEST, or at
pass through rates if provided by a third party, for the first year of the
Agreement. Thereafter, U S WEST will pay USi, at its current rates, for all
necessary support. It is at U S WEST's discretion whether the end customer
bears the increased support cost. U S WEST will be responsible for any travel
and incidental expenses incurred as a result of attending USi training.
8. NETWORK SERVICES AND SUPPORT
(a) Due dates for network facilities can not be guaranteed and are
subject to availability both in U S WEST's region as well as outside of the
14-state territory.
(b) USi and U S WEST agree to regularly review network expansion
plans and requirements, as well as network transport pricing received from
third parties. USi and
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US WEST will coordinate efforts to obtain the most favorable transport
pricing available for both parties.
(c) The parties agree that within U S WEST's 14-state region, all
inter-LATA network services shall be provided by the carrier of the
customer's choice in accordance with U S WEST's regulatory limitations.
(d) If U S WEST receives authority to enter into inter-LATA
business, the parties will re-evaluate the business relationship and/or
renegotiate terms for in-region inter-LATA services.
(e) Contingent upon the subsequent mutual agreement of the parties,
USi will provide co-location space to U S WEST for U S WEST's firewall,
router and associated equipment for delivery of U S WEST's Virtual Private
Network service as part of the iMAP service package. U S WEST will compensate
USi for this space in an amount equal to the then current commercial rates
for such space.
9. BRANDING
(a) Both parties wish to promote their respective brands in this
service offering. The parties agree that, subject to the review and consent
of USi's third party software application providers, both logos will appear
together on application splash screens, or application pages as appropriate
and mutually agreed upon.
(b) In the case of unbundling of iMAP services, USi's brand will not
be utilized.
(c) In some instances, end user customer company name and logo may
also appear in specific applications upon the written consent of the
appropriate party(s).
(d) U S WEST and USi will jointly produce marketing literature that
features the application provider as well as the U S WEST / USi brands. U S
WEST and USi will share the cost of creating joint marketing literature. Each
party will bear the cost of producing the marketing literature for its sales
efforts.
(e) The parties anticipate making public statements from time to
time. In no case shall either party make any public announcement about this
contract or the resulting business relationship without the others written
consent.
(f) Each party shall follow the other party's branding guidelines
that are included as Schedule H.
10. SALES PROCESS
(a) U S WEST will, in its discretion, hire an appropriate number of
Application Sales Consultants (ASC) that will be trained by USi to provide
technical support to the sales organizations within its region. The ASC's
will carry quota on USi products as described in Schedule C. USi will provide
training and technical support at no cost, for the first 12 months, in the
same manner as for its own sales force. Thereafter, U S WEST will pay USi, at
its then current rates, for all training and technical support. U S WEST will
be responsible for any travel and incidental expenses incurred as a result of
attending USi training.
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cost. US WEST will be responsible for any travel and incidental expenses
incurred as a result of attending USi training.
(b) Each of the parties will manage their respective compensation
plans with the guiding principle to incent the two organizations to work
together where appropriate and develop their own sales leads where required
for incremental market coverage.
(c) USi may at its option also staff Account Representatives and
technical support in U S WEST territory in order to provide additional
support and cover other opportunities that either do not fit the U S WEST
sales and business model or that U S WEST abandons pursuant to section 5(e)
above.
(d) Outside of its 14-state region, U S WEST sales personnel may
only present USi iMAP applications to its National Accounts and protected
customers listed in Schedule D along with network services from U S WEST
partners and vendors. Out of region, National Accounts and protected accounts
may be added or subtracted contingent upon mutual agreement and process by
the Executive Vice Presidents of Sales for both parties.
(e) U S WEST and USi will follow a mutually agreed upon sales
process that will accomplish order and involvement by the appropriate parties
at the right time and is subject to change as agreed upon by the parties and
included in Schedule E.
(f) Service readiness coordination for iMAP services will be lead by
USi, irrespective of the selling party organization, to insure that all
phases of application hosting, testing, training and conformance are ready
and that all service elements are installed, functional, tested and secure.
(g) Customers will be surveyed to measure client satisfaction via
mutually agreed upon survey tools, by U S WEST. Feedback concerning iMAP
Services will be supplied to USi.
(h) The parties agree that there will be no joint sales or
customers. U S WEST will manage its customer relationships and as such will
be responsible for end user pricing, billing, and collections.
(i) Where U S WEST has qualified a prospect and chooses not to
pursue the sales process because of the lack of network elements present to
create an integrated solution, the pre-qualified lead will be turned over to
USi pursuant to section 5(e) above for follow up and closing.
(j) Progress towards sales objectives will be reviewed at quarterly
meetings and appropriate action taken. U S WEST will be responsible to manage
the sales activities of its account teams to meet or exceed sales objectives.
(k) The parties will forecast anticipated sales levels by product
and geographic area quarterly for the following quarter.
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11. CONSULTING, IMPLEMENTATION, AND SUPPORT
(a) Consulting and Implementation services for site assessment,
requirements analysis, statement of work, and project plan will be provided
by USi at the agreed upon discount levels found in Schedule C.
(b) U S WEST initiated sales activities will get the same priority
of sales support response as USi initiated sales projects. USi consulting and
implementation services will be reviewed as part of the regularly scheduled,
quarterly review meetings between USi and U S WEST
(c) USi reserves the right to contract with third party
implementation partners in order to manage its resource requirements. USi
will ALWAYS provide staff project management resources, even if third party
resources are used.
12. EXCLUSIVITY
(a) USi will be the exclusive systems integrator for iMAP solutions
as defined in Schedule B, sold by U S WEST, except in cases where 11.c.
applies. As the exclusive integrator, USi will bear the implementation labor
estimate risk for effort expended on implementing within the scope of
requirements analysis and statement of work developed by USi for US WEST
customers.
(b) USi will use U S WEST network services in USi lead sales,
contingent upon the provisioning of services in a timely manner, at
Competitive Prices, within industry standards for reliability and
availability, and to the extent such services are consistent with USi's iMAP
service architecture. USi will purchase from U S WEST vendor contracts on a
preferred basis where available at Competitive Prices.
(c) U S WEST will be the exclusive sales channel in its 14-state
region of USi iMAP services, with exclusivity defined below, unless, (1) U S
WEST chooses at its sole discretion to transfer the opportunity to USi due to
lack of fit with network integration model; or, (2) the Customer refuses to
negotiate or enter into an agreement with U S WEST, in which case, USi shall
be permitted sell iMAP services to that Customer. U S WEST's in-region
exclusivity is defined under this Agreement as excluding USi from entering
into any similar marketing/services agreements within U S WEST's 14-state
region with any of the following competitors of U S WEST: other Regional ▇▇▇▇
Operating Companies, all Independent/Competitive Local Exchange Carriers, and
all Interexchange Carriers or cable television operators. U S WEST's
exclusivity under this Agreement may be transferred to another party other
than USi only upon USi's written consent, which will not be unreasonably
withheld.
(d) USi will not compete directly with U S WEST sales personnel in
the 14-state U S WEST territory, or under any circumstances out of region on
U S WEST's National Account and protected customer lists, as mutually agreed
upon by the Executive Vice President's of Sales for both parties, as set
forth in Schedule D.
(e) The parties agree to put rules and incentives in place to
arbitrate any sales disputes in a timely, and good faith manner.
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13. LICENSE/AUTHORIZATION TO SELL
(a) Subject to the terms of this Agreement and the consent of USi's
software application providers, USi hereby grants to U S WEST a limited,
revocable authorization to demonstrate, market, and solicit orders for USi's
iMAP Services directly to U S WEST's Customers.
(b) Nothing in this Agreement shall permit the distribution of any
Services in violation of any United States export restriction.
(c) Prior to beginning to use any of the other party's marks, the
party desiring to utilize the other's marks shall notify the other in writing
of the intended use, providing a complete description of the intended use. If
the party's whose marks are to be used notifies the other of its objections
to the proposed use, the marks shall not be so utilized.
(d) Software licenses as used in iMAP solutions are not transferable
and USi will retain title to the licenses at all times.
(e) Subject to the existence, terms and conditions of its agreements
with its Third Party Software Application Providers, USi warrants that it has
the right or authority to grant to U S WEST a limited, revocable
authorization to demonstrate, market, and solicit orders for USi's iMAP
Services to U S WEST's Customers.
14. TERM
(a) The term of this Agreement shall be for a period of two years
after the date the Agreement is entered into, with mandatory performance
reviews on a quarterly basis. If the parties do not agree to a renewal or
extension of this Agreement, or if either of the parties fails to give the
other a written notice at least 90 days in advance of the termination of the
Agreement that they do not intend to extend or renew the Agreement, the
Agreement will continue in effect until such 90 day notice has been given.
15. TERMINATION OF AGREEMENT
(a) This Agreement may be terminated by either party for cause,
including among other reasons: 1) breach of any of the material provisions of
the Agreement; 2) a Change in Control of either party; 3) the termination or
material change of any of the agreements USi may have with a Third Party
Software Application Provider; or 4) any such Third Party Software
Application Provider's lack or withdrawal of consent to this Agreement. Or 5)
the failure to obtain approval for U S WEST to sell any of the third party
software applications listed in Schedule B; any restrictions on U S WEST's
ability to sell these third party applications may, in U S WEST's sole
discretion, be the basis for termination under this section. However, in the
event of a termination for cause under Section 15(a)(3-4) above, USi may not
terminate the entire Agreement, but only U S WEST's rights hereunder to
purchase, market and sell the specific Products or iMAP Services effected
and/or controlled by the particular Third Party Software Application
Provider(s).
(b) In the event that one party wishes to terminate the Agreement
for cause under Section 15 (a) (1) above, it shall provide the other party
with a ninety (90) days prior written
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notice specifying the breach(es). If at the end of the 90 day period, the
breach(es) has(ve) not been materially cured, the Agreement shall be
terminated. In the event of such a termination for cause by USi, all of U S
WEST's rights to demonstrate, market and solicit iMAP services as set forth
in this Agreement shall cease immediately, except that, to the extent
permitted by USi and its third party software application providers, U S WEST
shall be permitted to continue to use iMAP services solely to fulfill
existing customer contractual obligations. Each party shall continue to
maintain a direct relationship with all of the customers to whom that party
has sold services.
(c) In the event of a termination for cause under Section 15 (a)
(3-4) above, USi may terminate, all of U S WEST's rights under the Agreement
to purchase, market and sell the specific Products and iMAP Services effected
and/or controlled by the particular Third Party Software Application
Provider(s). The right to terminate under this section 15.e. may not be
invoked until after 45 days prior written notice has been provided to U S
WEST. If USi's rights to distribute any product may be terminated in less
than 45 days that time period shall be applicable to U S WEST.
(d) USi will be indemnified and held harmless by U S WEST from any
form of action or claim it or a third party may have against USi as a result
of a termination for cause under Section 15 (a) (3-4), assuming that such
termination is not the direct result of any action of USi.
16. TERMINATION OF EXCLUSIVITY
(a) Annual Total iMAP Quota performance below 75% of annual total
iMAP Quota to be considered a breach of US West's exclusivity rights. Upon
breach there will be a 90-day cure period to assess and review remedies.
After the cure period, USi will have the right to remove US West's
exclusivity rights, at USi's discretion.
(b) Product Quotas will be established each year, for each iMAP
product. Annual Product Quota performance below 50% for any Product Quota may
remove US West's exclusivity rights for this product, at the discretion of
USi, subject to the following: US West's Product Quota performance will be
reviewed against USi's own product sales performance in each product category
for the same period. US West Product Quotas may be adjusted down (lower)
based on USi's own product sales performance for the period.
(c) US West's exclusivity shall terminate upon the acquisition or
change in control of USi.
17. NON-COMPETE
(a) During the term of this Agreement, USi shall not enter into any
similar marketing/services agreements within US West's 14-state region, with
any of the following competitors of U S WEST: other Regional ▇▇▇▇ Operating
Companies, all Independent/Competitive Local Exchange Carriers, all
Interexchange Carriers or cable television operators.
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18. COMPLIANCE WITH LAWS
(a) The parties acknowledge that some of U S WEST's services are or
may be provided in accordance with the rules, regulations and tariffs of
state or federal regulatory agencies. To the extent that any conflict exists
between the rules, regulations or tariffs and this Agreement, the rules,
regulations or tariffs shall prevail.
19. YEAR 2000 COMPLIANCE
(a) USi warrants that its iMAP services, as provided by USi, are
capable of processing, recording, storing and presenting data containing
four-digit years after December 31, 1999, in substantially the same manner
and with substantially the same functionality as before January 1, 2000. USi
assumes no responsibilities or obligations to cause U S WEST's, customers' or
third parties' products or services to function with the iMAP services. USi
will not be in breach of this warranty for any failure of the iMAP services
to correctly create or process date-related data if such failure results from
the inability of any hardware, software or systems of U S WEST or any
customer or third party including Third Party Application Providers either to
correctly create or process date-related data in a manner consistent with the
method in which the iMAP services create or process date-related data. In the
event of a breach of this warranty, U S WEST'S sole and exclusive remedy and
USi's sole liability shall be to use its commercially reasonable efforts to
correct errors that cause breach of this warranty or if USi is unable to make
the corrections within a reasonable period of time considering the severity
of the error and the impact on U S WEST's customer as determined by USi, U S
WEST shall be entitled to terminate this Agreement pursuant to section 15
above.
20. SERVICE LEVELS
(a) Each party will provide the same quality of service to the
other's Customers as it does for any customer who obtains comparable services
directly from each such party. Notwithstanding anything to the contrary set
forth in this Agreement, neither party shall be obligated to provide services
or support of any kind to the other's Customers which exceeds that which it
is required to provide to its customers pursuant it's service agreements for
the applicable comparable services, as such agreements may be amended from
time to time. Each party shall be responsible for insuring that the service
agreements which it and/or its Customers distribute in connection with the
other party's Services sold pursuant to this Agreement reflect the most
current provisions of such other party's service agreements for comparable
services. Each party acknowledges that neither it, its Customers, nor their
respective agents is permitted to offer warranties or representations for the
other party's services which would obligate or otherwise bind the other party
beyond those stated in the applicable service agreements or to make any other
warranties, promises or representations with respect to the Services or the
Network.
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21. GOVERNANCE
(a) The parties' relationship with the other, to the extent not
defined by this Agreement, shall be managed by the parties meeting quarterly
to discuss issues and resolve conflicts to mutually acceptable conclusions.
At a minimum, the parties agree to address sales status, strategy, support,
implementation, management center operations, marketing, and network and
transport strategies and issues.
22. LIMITATION OF WARRANTY AND LIABILITY
(a) Except as otherwise specifically provided herein, neither party
warrants any connection to, transmission over, nor results or use of, any
network connection, service, equipment or facilities provided under this
agreement. Each party further disclaims all warranties, whether express,
implied or statutory, including, without limitation, any implied warranties
of merchantability and fairness for a particular purpose and non-infringement
of third party rights. Except as specifically provided herein, each party
specifically disclaims any responsibility for any damages suffered by the
other party or any third party, except for those caused by such party's gross
negligence or willful misconduct.
(b) Neither party shall be liable to the other or anyone claiming
through the other for an amount in excess of three hundred fifty thousand
dollars ($350,000.00) per incident, for any loss, damage, liability, claim or
expense ("claims") arising out of or in relation to this agreement or the
provision of any software, hardware, or service, however caused, whether
grounded in contract, tort (including negligence) or theory of strict
liability. In no event shall either party be liable for any indirect,
incidental, special, punitive or other consequential damages whether or not
foreseeable (including, without limitation, damages for the loss of data,
goodwill or profits) arising out of or in relation to this agreement even if
advised beforehand of the possibility of such liability.
23. PROPRIETARY RIGHTS
(a) Except for the limited licenses specifically granted by one
party to the other in this Agreement, each party shall at all times retain
full and exclusive right, title, and ownership interest in and to its
Services, software licenses, network, all names, logos, trade names,
trademarks, copyrights, service marks and all other intellectual property or
trade secret rights related thereto. Each party shall use reasonable efforts
to notify the other of any action by any third party known or suspected by it
to constitute an infringement of the other's proprietary rights. Each party
shall honor all reasonable requests by the other, other than engaging as a
party in litigation, to perfect and protect at such requesting party's
expense any rights of such party in its Services, network or such
intellectual property or trade secret rights.
24. INDEMNIFICATION
(a) Each party will defend, indemnify and hold the other harmless
from and against any claim by any Customer or End-user of such other party
which is based on any warranty,
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promise or representation made by the indemnifying party as part of a service
agreement and for which the indemnifying party is responsible in accordance
with the terms of this Agreement. Each party will defend, indemnify and hold
the other harmless from and against any claim or threat of claim which is
based on any warranty, promise or representation made by such other party or
any of its Customers to a third party which is in excess of those for which
the indemnifying party is responsible under this Agreement or which is in
violation of this Agreement.
25. DISPUTE RESOLUTION
(a) Any claim, controversy or dispute between the parties, their
agents, employees, officers, directors or affiliated agents ("Dispute"),
shall be resolved by arbitration conducted by a single arbitrator mutually
agreed upon by both parties who is engaged in the practice of law and
knowledgeable in the applicable areas of law, under the then current
Commercial Arbitration rules of the American Arbitration Association. The
Federal Arbitration Act, 9 U.S.C. Sections 1-16, not state law, shall govern
the arbitrability of all Disputes. The arbitrator shall have authority to
award compensatory damages only. The arbitrator's award shall be final and
binding and 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.
26. GOVERNING LAW
(a) The laws of the State of New York shall govern the construction
and interpretation of the Agreement, and the arbitration shall occur in
Washington, D.C. It is expressly agreed that either party may seek injunctive
relief in an appropriate court of law or equity pending an award in
arbitration.
27. USE OF TRADEMARKS
(a) Subject to the terms of this Agreement, each party grants a
revocable, royalty-free, non-exclusive, non-transferable license to use the
other's trademarks, trade names, service marks and logos whether registered
or not (the "Marks"), solely to promote the sale of the other's Services or
to identify a relationship between the parties. This license shall apply only
to the parties, and shall not be construed as a license or authorization for
any customer, end user or other third party to use the Marks. The license
granted herein may be terminated at anytime by the party which owns the Marks
upon ten (10) business days written notice to the other party.
(b) Use of the Marks shall be subject to the appropriate party's
guidelines, as may be amended from time to time, (including but not limited
to size, placement, color and quality control) and further subject to any
restrictions that may appear in this and other sections of this Agreement.
Written documentation concerning the parties' guidelines for the use of their
Marks shall be provided to the other party. All uses of a party's ▇▇▇▇ shall
clearly and properly identify that party's claim of ownership. In no event
shall a
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party use the other's Marks in a manner more prominent than its own Marks or
in a manner that causes confusion as to the identity of the parties.
(c) Prior to producing, distributing or displaying any advertising
or other material containing the other party's Marks, that party shall obtain
prior written approval from the owner of the Marks. Each party shall have the
right, at reasonable times to visit the other's facilities or inspect the
rendering of the Services to ensure compliance with this paragraph.
(d) The parties may agree to the joint branding of services, and any
such agreement shall be included as schedules to this Agreement.
(e) Neither party shall do anything that will in anyway impair the
other's rights in and to its Marks or the goodwill inherent in the Marks.
Neither party shall acquire or claim title to the other's Marks by virtue of
the license granted herein or that party's use of the Marks; it being
expressly agreed that all use of the Marks shall inure to the benefit of the
owner of the Marks.
28. CONFIDENTIALITY.
(a) Confidential Information: Except as otherwise stated herein, USi
and U S WEST each expressly undertake to retain in confidence all information
transmitted to it by the other party pursuant to this Agreement that the
disclosing party identifies as being proprietary and/or confidential or that,
by the nature of the circumstances surrounding the disclosure, ought in good
faith to be treated as proprietary and/or confidential ("Confidential
Information"), and will make no use of such Confidential Information except
under the terms and during the existence of this Agreement. Information
disclosed by USi, in any form, regarding iMAP Services, Products or Customers
to U S WEST by USi, shall be USi Confidential Information. USi and U S WEST
shall treat the terms and conditions of this Agreement as confidential:
however, either party may disclose such information in confidence to its
immediate legal and financial consultants as required in the ordinary course
of that party's business. The receiving party's obligations hereunder shall
extend for five (5) years following the disclosure of the Confidential
Information. Each party shall cause its affiliates to retain the other's
Confidential Information in accordance with the terms of this Section 28.
(b) Notwithstanding the termination of this Agreement, each party
agrees to treat such Confidential Information as confidential for a period of
two (2) years from the date of receipt of same unless otherwise agreed to in
writing by both parties. In handling the Confidential Information, each party
agrees: (a) not to copy such Confidential Information of the other unless
specifically authorized; (b) not to make disclosure of any such Confidential
Information to anyone except employees and subcontractors of such party to
whom disclosure is necessary for the purposes set forth above; and (c) to
appropriately notify such employees and subcontractors that the disclosure is
made in confidence and shall be kept in confidence in accordance with this
Agreement. The obligations set forth herein shall be satisfied by each party
through the exercise of at least
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the same degree of care used to restrict disclosure of its own information of
like importance.
(c) Each party agrees that in the event permission is granted by the
other to copy Confidential Information, or that copying is otherwise
permitted hereunder, each such copy shall contain and state the same
confidential or proprietary notices or legends, if any, which appear on the
original. Nothing herein shall be construed as granting to either party any
right or license under any copyrights, inventions, or patents now or
hereafter owned or controlled by the other party.
(d) Upon termination of this Agreement for any reason or upon
request of the disclosing party, all Confidential Information, together with
any copies of same as may be authorized herein, shall be returned to the
disclosing party or certified destroyed by the receiving party.
(e) The obligations imposed by this Agreement shall not apply to any
information that: (1) is already in the possession of, is known to, or is
independently developed by the receiving party; or (2) is or becomes publicly
available through no fault of the receiving party; or (3) is obtained by the
receiving party from a third person without breach by such third person of an
obligation of confidence with respect to the Confidential Information
disclosed; or (4) is disclosed without restriction by the disclosing party;
or (5) is required to be disclosed pursuant to the lawful order of a
government agency or disclosure is required by operation of the law.
29. CUSTOMER SUPPORT
(a) RESPONSIBLE ENTITY. When a party to this Agreement makes a sale
of Products to a Customer the selling party shall be the primary owner
("Primary Owner") of that Customer.
(b) CUSTOMER SUPPORT. The Primary Owner shall be responsible to the
Customer for the overall customer experience ("Customer Experience")
including, but not be limited to:
(b.1) All Customer contact;
(b.2) All provisioning and implementation of the Products;
(b.3) All issues related to Product performance, outages, and
repair; and
(b.4) All issues related to Customer billing and collections.
(c) PRODUCT PERFORMANCE. The party supplying the Product shall be
responsible for the performance of that Product and meeting the service level
expectations associated with it.
30. PRODUCT SUPPORT
(a) PRODUCT SUPPORT. The parties understand and acknowledge that
many Products have unique product support operations including call-in
number, help desk, customer database, trouble-ticketing system, billing
processes, and monitoring capabilities. They further understand and
acknowledge that the Primary Owner of a Customer may not be in
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the best position to manage the various back-end product support processes
that are internal to the other party.
With that understanding, and the awareness that the Primary Owner is
ultimately responsible for the Customer Experience as described in Section
2.2 above, the parties agree to certain product support processes below in
order to help the Primary Owner best serve the Customer's needs.
(b) USi PRODUCTS
(b.1) USi-Sold. When USi sells a USi-provided Product to a
Customer USi shall solely provide the necessary product support to itself and
U S WEST shall have no obligation to participate.
(b.2) U S WEST-Sold. When U S WEST sells a USi-provided
Product to a Customer USi shall make available to U S WEST their Customer
Assistance Team as a single point of contact to assist U S WEST in managing
the product support operations internal to USi.
(c) U S WEST PRODUCTS
(c.1) U S WEST-Sold. When U S WEST sells a U S
WEST-provided Product to a Customer U S WEST shall solely provide the
necessary product support to itself and USi shall have no obligation to
participate.
(c.2) USi-Sold. When USi sells a U S WEST-provided Product
to a Customer U S WEST shall make available to USi their Coordinated Services
Team as a single point of contact to assist USi in managing the product
support operations internal to U S WEST.
(d) RECORD KEEPING. The Primary Owner shall keep original, detailed
records ("Customer Records") of all aspects of the customer experience in an
appropriate manner (see Section V, Systems, below). These records shall
include, INTER ALIA, open and completed orders, all Customer contact, all
contact with the other party's support team (CAT or CST), implementation
information, open and closed trouble tickets, service level agreements, and
fully executed contracts.
(e) AVAILABILITY. To best serve the customer jointly, the original
Customer Records of one party shall be made available to the other party at
all times.
(f) BILLING. The parties agree that at least until a reliable
billing system can be put in place that will coordinate billing statements
for multiple Products, the Primary Owner, as the customer of record for the
Product purchased, shall receive a separate billing statement for each
Product purchased even if multiple Products are purchased together as a
"bundle." The Primary Owner is free to ▇▇▇▇ the Customer in any manner
mutually acceptable to the two parties.
(g) MONITORING. The parties agree that at least until a reliable
monitoring system can be put in place that will make available appropriate
network monitoring information, performance monitoring for the Products shall
be conducted by the business entity responsible for providing the Product.
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31. SERVICE LEVEL AGREEMENTS
(a) PRODUCTS. The parties understand and acknowledge that each
Product has its own unique service level agreement ("Product SLA"), that
these agreements may change from time to time at the discretion of the party
providing the Product, and that it would not be feasible to contemplate the
possible combinations of service level agreements for purposes of this
Agreement.
Therefore, the parties agree that for each Product purchased the
Customer will be given the Product SLA in place for the Product at the time
of the sale. Accordingly, the Customer will also be given opportunity to
negotiate the Product SLA wthin the framework provided by the party supplying
the Product.
(b) THIS AGREEMENT. The service level agreement regarding the
baseline service terms and conditions of this Agreement (Agreement SLA") is
on Schedule F attached hereto and made a part hereof.
32. SYSTEMS
(a) DEFINITION. For purposes of this Section the word "Systems"
shall be defined to include tools that provide functionality such as customer
order, customer of record distinction, trouble ticket tracking, network
monitoring, and billing for the Customers and Products.
(b) START-UP STATUS. The parties understand and acknowledge that at
the time of the execution of this Agreement there is no single System in
place that integrates information from the existing Systems relevant to the
parties needs. The parties agree that they will make the best and most
innovative use of the tools currently available, within the framework of
future planning, as they work together to support the Customers.
(c) DEVELOPMENT. Upon execution of this Agreement the parties will
jointly endeavor to design a process to transfer information between them
that will suit their needs.
(d) KNOWLEDGE BASE. In an effort to reduce the number of times one
party needs to call the other party for product support reasons, upon
execution of this Agreement the parties will jointly endeavor to create and
maintain on an ongoing basis a Web-based knowledge base of information, or
frequently asked questions, regarding the Products.
33. SERVICE REVIEWS
(a) QUARTERLY REVIEW. From time to time the parties shall meet at a
mutually agreeable time and place to discuss operations, customer support,
and product support issues addressed in this (Section/Exhibit) and any other
topics they deem appropriate. Such meetings shall not be less frequent than
once per quarter.
(b) METRICS. From time to time the parties may share Product
performance metrics with each other as they impact overall customer care. The
parties will agree to the relevant and appropriate scope of such metrics
sharing on a case-by-case basis.
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34. NOTICES
All notices required to be given under this Agreement shall be provided in
writing to the following representatives of the parties:
For U S WEST:
Vice President - Internet Services
▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Law Department
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
For USinternetworking:
Senior Vice President, Worldwide Sales
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
35. ASSIGNMENT
This agreement may be assigned by the parties to any corporate
affiliate in which the majority of ownership is held by the parent
corporation of the assigning entity.
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U S WEST COMMUNICATIONS SERVICES, INC.
BY: _______________________________________
TITLE:_____________________________________
US WEST INTERPRISE AMERICA, INC.
BY:________________________________________
TITLE:______________________________________
USINTERNETWORKING, INC.
BY:________________________________________
TITLE:_____________________________________
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Schedule A
1) U S WEST SERVICES PRICING GUIDELINES
[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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SCHEDULE B
1) LIST OF PRODUCTS CONTRIBUTED BY USi
The following list contains the initial set of products that U S WEST
will represent.
USi ELECTRONIC COMMERCE SOLUTIONS SUITE
USi INTERNET SELLING POWERED BY MICROSOFT
USi has partnered with Microsoft to deliver an all-in-one solution
for selling on the Internet. Your company can now capture the attention of
customers and partners with targeted online promotions and advertising,
transact high volumes of business securely and reliably, and actively manage
and analyze sites to maximize return on investment.
USi INTERNET SELLING POWERED BY BROADVISION
BroadVision is recognized as the leader in one-to-one marketing and
relationship management over the Internet. It's a complete solution that
promotes increased customer satisfaction through fast, reliable service,
relationship marketing, and personalized electronic commerce.
USi INTERNET PUBLISHING POWERED BY BROADVISION
USi INTERNET FINANCIAL SERVICES POWERED BY BROADVISION
USi ENTERPRISE DATA WAREHOUSING SOLUTIONS SUITE
USi ENTERPRISE DATA MART POWERED BY SAGENT
Data warehousing empowers strategic and tactical business decisions
by quickly correlating and analyzing data across all dimensions of your
business. A data mart is a type of data warehouse database containing a
subset of corporate data, and it can be a key building block in a broader,
more powerful, enterprise data warehousing solution. Designed to address a
specific business area of an organization, data marts rely on data from
operational systems or from a data warehouse to deliver the business
intelligence that facilitates informed decision-making.
USi WEB SITE MANAGEMENT SOLUTIONS
USi builds each solution individually to meet specific client
requirements - there are never any pre-configured solutions. And USi designs
its solutions to be scalable so they can accommodate your company's growth.
After assessing your unique business needs, USi recommends an end-to-end
customized solution - including written service and security policies - and
delivers these documents along with a financial proposal. Upon acceptance,
USi implements, manages, and supports the complete solution for your company
2) ANTICIPATED FUTURE SOLUTIONS
ENTERPRISE RESOURCE PLANNING SOLUTIONS SUITE
Reserved for future offerings
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HUMAN RESOURCES SOLUTION SUITE
Reserved for future offerings
FINANCIAL MANAGEMENT SOLUTIONS SUITE
Reserved for future offerings
USi ENTERPRISE RELATIONSHIP MANAGEMENT SOLUTIONS SUITE
Reserved for future offerings
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SCHEDULE C
1) USi DISCOUNT STRUCTURE:
(a) [CONFIDENTIAL TREATMENT]
(b) Discount shall apply to all iMAP Services, pre-qualification and
requirements analysis consulting and post-sale implementation services sold
by US West.
(c) Discount off of quoted End-user Price established by USi GAP/
Requirements Analysis. USi price not to include US West offerings.
(d) [CONFIDENTIAL TREATMENT] of full-term contract value [CONFIDENTIAL
TREATMENT] payment due up-front to USi at each customer contract closing.
(e) Responsibilities delivered as outlined in Responsibility Matrix.
(f) USi to staff one Business Development Manager in-Region, and one
technical Sales Engineer per $ [CONFIDENTIAL TREATMENT] in quota assigned.
(g) USi to provide sales training [CONFIDENTIAL TREATMENT], and to
offer sales and product training services thereafter on a fee basis.
2) ANNUAL TOTAL iMAP SALES QUOTA:
(a) First year Total iMAP Sales Quota: [CONFIDENTIAL TREATMENT]
(b) Multi-year contracts will accrue towards quota attainment at
full multi-year contract value.
(c) Quota to be established each year of contract.
3) ANNUAL INDIVIDUAL iMAP PRODUCT SALES QUOTAS:
(a) First year individual iMAP Product Sales Quotas shall be as
follows:
iMAP Product Product Quota
E-Commerce [CONFIDENTIAL TREATMENT]
Complex Web [CONFIDENTIAL TREATMENT]
Sagent [CONFIDENTIAL TREATMENT]
Total [CONFIDENTIAL TREATMENT]
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SCHEDULE D
1) U S WEST HOUSE ACCOUNTS BY CITY AND DIVISION:
The Executive Vice President's of Sales for both parties shall
mutually agree on a list of House Accounts each quarter, by Account Name,
City, and Division. House Accounts for the commencement of the Agreement
shall be derived from the following list of U.S. corporations, educational
institutions and government entities. Within 30 days of the commencement of
the Agreement, the below list shall be refined to include the specific
Division(s) and City(Cities) of each entity below which shall be considered
House Accounts, by mutual agreement of the Executive Vice President's of
Sales for both parties.
ACCOUNT CITY ST
[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
2) U S WEST PROTECTED ACCOUNTS BY CITY AND DIVISION:
The Executive Vice President's of Sales for both parties shall
mutually agree on a list of protected accounts each quarter, by Account Name,
City and Division. Protected accounts for the commencement of the Agreement
shall be derived from the following list of U.S. corporations, educational
institutions and government entities. Within 30 days of the commencement of
the Agreement, the below list shall be refined to include the specific
Division(s) and City(Cities) of each entity below which shall be considered
protected accounts, by mutual agreement of the Executive Vice President's of
Sales for both parties.
ACCOUNT REGION SALES DIRECTOR
[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
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SCHEDULE E
1) USi SALES PROCESS
The guidelines below describe the expected sales process and associated
service intervals anticipated in a sale of iMAP services.
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[CONFIDENTIAL TREATMENT]
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SCHEDULE F
1) BASELINE SERVICE LEVEL AGREEMENTS
SERVICE LEVEL AGREEMENT:
USi's Service Level Goal:
USi's goal is to provide for [CONFIDENTIAL TREATMENT] Availability
for the iMAP Solution application services (as herein defined) within USi's
assumed control.
"Availability" refers to a User's ability to access the application
on the appropriate USi hosted server and receive a valid response, where a
"valid response" is any reply sent by the appropriate server that is either
normal application behavior or an exception notification that can be
identified and read by the user.
"Assumed control" includes all components below not otherwise
identified as outside of the USi Service Level Agreement:
- network services to the ISP (Internet Service Provider)
circuit termination point on the router in USi's data center (i.e. Public
Internet Connectivity)
- network services to the Private IP Carrier circuit
termination point on the router in USi's data center (i.e. Private IP
Network Connectivity)
- all USi provided hardware including servers, network
equipment and security components
- all USi provided software, including operating systems, web
servers, database servers, applications, utilities and customized components
- USi managed routers on customer premises
REMEDY:
In the event USi is unable to provide:
1. [CONFIDENTIAL TREATMENT] Availability in any given [CONFIDENTIAL
TREATMENT], Client shall receive a credit to their account equal to
[CONFIDENTIAL TREATMENT] of [CONFIDENTIAL TREATMENT] service fees excluding
rebilled circuit charges.
2. [CONFIDENTIAL TREATMENT] Availability in any given [CONFIDENTIAL
TREATMENT], Client shall receive a credit to their account equal to
[CONFIDENTIAL TREATMENT] of [CONFIDENTIAL TREATMENT] service fees excluding
rebilled circuit charges.
3. [CONFIDENTIAL TREATMENT] Availability in any given [CONFIDENTIAL
TREATMENT], Client shall receive a credit to their account equal to
[CONFIDENTIAL TREATMENT] of [CONFIDENTIAL TREATMENT] service fees, excluding
rebilled circuit charges.
If USi fails to meet [CONFIDENTIAL TREATMENT] Availability for
[CONFIDENTIAL TREATMENT], Client may terminate this Product Schedule without
penalty, regardless of any term remaining on the Agreement, without liability
to either party for penalties or damages associated with such termination and
upon thirty (30) days prior written notice to USi.
"Availability" percentage shall be calculated as follows:
x = ([CONFIDENTIAL TREATMENT] * 100) / n
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where "n" is the total number of hours in any given calendar month,
and "x" is the Availability percentage.
Specifically excluded from "n" in this calculation and exceptions to
the levels of Availability provided herein are (a) scheduled maintenance
windows; (b) reasons of Force Majeure (as defined in Section 12.8 of the
Agreement); (c) issues associated with Client provided hardware, software and
other equipment; (d) issues associated with Client provided or Client leased
local area networks or ISP connections; (e) use of unapproved or modified
hardware or software and/or; (f) issues arising from the misuse of the iMAP
Solution by Client, its employees, agents, customers or contractors.
In the event of a Force Majeure event, the Client shall have the
option of canceling this Product Schedule with USi if the resulting total
outage time is greater than [CONFIDENTIAL TREATMENT] consecutive days in any
[CONFIDENTIAL TREATMENT] month period, without liability to either party for
penalties or damages associated with such outages or termination and upon
thirty (30) days prior written notice to USi.
The remedies stated in this Section are Client's sole and exclusive
remedies for service interruption.
2) CLIENT RESPONSIBILITIES:
This section describes Client's additional responsibilities under
this Agreement.
1. Client will designate qualified personnel to act as liaisons between
Client and USi.
2. Client will adhere to and will require any Third Party (as defined
in the iMAP Agreement) having access to the iMAP Solution to adhere to USi's
Acceptable Use Policy as set forth at the following URL:
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.
3. Client is responsible for obtaining and complying with license terms
for all Client-provided software, if any, which are sufficient to allow use
of the software on the Hardware.
4. Client is solely responsible for Content, including any subsequent
changes or updates made or authorized by Client. Client represents and
warrants that Content: (a) will not infringe or violate the rights of any
Third Party including, but not limited to, intellectual property, privacy or
publicity rights of others; (b) is not abusive, profane or offensive to a
reasonable person; or (c) will not be hateful or threatening. Violations of
the foregoing by Client may result in early termination of services by USi.
5. Client is solely responsible for the Contents of its transmissions
and the transmissions of Third Parties accessing the iMAP Solution through
Client. Client agrees to comply with U.S. and International law with regard
to the transmission of technical data which is exported from the United
States through the iMAP Solution. Client further agrees not to use the iMAP
Solution (a) for illegal purposes or (b) to interfere with or disrupt other
network users, network services or network equipment. Interference or
disruptions include, but are not limited to, distribution of unsolicited
advertising or chain letters, propagation of computer worms and viruses, and
use of the network to
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make unauthorized entry to any other machine accessible via the network.
Violations of the foregoing by Client may result in early termination of
services by USi.
6. Upon expiration of this Product Schedule, Client must relinquish use
of the IP address or address blocks assigned to it by USi in connection with
the services.
7. Client shall be responsible for providing USi with end user login
names and passwords for the purpose of authenticating and authorizing Global
Network access by end users to the iMAP Solution.
8. Client shall be responsible for handling all communication,
technical support to and business relations with end users who are the
customers of Client including but not limited to responding to inquiries and
questions.
9. Client shall provide USi with access to such hardware, software and
network connections as USi shall require.
10. Client shall be responsible for obtaining and maintaining the
following hardware and/or software:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
11. Client shall be responsible for providing to USi all information
required for the Acceptance Test in a timely manner and in form directed by
USi. Client shall participate in the Acceptance Testing in good faith and
with all due diligence.
12. Client shall indemnify, defend and hold USi harmless against any
claims, damages, costs and attorneys fees incurred by USi arising from USi's
use of software licensed by or delivered through Client for use in the iMAP
Solution, including, but not limited to, claims for infringement of patents,
copyrights, trade secrets or other proprietary rights. This obligation shall
survive termination of the Product Schedule.
13. Client shall bear the entire risk of loss or damage to USi hardware
located at Client's premises. Client shall obtain and maintain adequate
liability insurance and insurance against loss or damage to the hardware.
Upon request, Client shall furnish to USi a Certificate of Insurance or other
evidence of insurance coverage. Client shall promptly notify USi of any loss
or damage to its hardware. In the event of loss or damage, Client, at USi's
sole option, shall either place the hardware in good condition and repair or
pay to USi the replacement value of the hardware. In the event that any such
loss or damage renders the hardware inoperable in any way so as to cause a
delay in the provision of the iMAP Solution to the Client, Client shall
indemnify and hold USi harmless under Section 8 of the Agreement from any
resulting claims Client or Third Parties may have. Furthermore, Client shall
not be entitled to any Service Level Agreement credits for any loss of
Availability due to the loss or damage to USi hardware located at Client's
premises.
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14. Client shall be responsible to perform the obligations set forth in
the incorporated provisions of the Proposal.
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Schedule G
1) VPN POP OVERVIEW
An IP services network infrastructure capable of delivering
differentiated network applications is an integral component to U S WEST's
strategy. U S WEST wants to integrate our leading-edge network services,
which will continually incorporate the latest, most powerful network
technology, with USi's Internet Managed Application Provider (iMAP)
solutions. U S WEST shares USi's objective of providing superior reliability
and wants to meet USi's reliability standards while delivering applications
over a network that is capable of differentiating the entire solution in the
marketplace by meeting end-to-end price/performance requirements of specific
applications and customers. U S WEST envisions that a mix of private and
IP/Internet-based network capabilities will be used to accomplish this goal.
This document outlines the U S WEST requirements to deliver these network
services to a USi facility.
2) U S WEST/USi POP ARCHITECTURE
THE FOLLOWING DIAGRAM DETAILS THE GENERAL ARCHITECTURE U S WEST WILL DEPLOY
AT THE USi FACILITY DURING THE FIRST PHASE OF THE DEPLOYMENT.
[CONFIDENTIAL TREATMENT]
The demarcation between the USW and USi networks will be
[CONFIDENTIAL TREATMENT]
USW will deploy [CONFIDENTIAL TREATMENT] in the configuration as
shown in the above diagram. Environmental and space requirements are
specified in a later section of this addendum.
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USW will manage [CONFIDENTIAL TREATMENT].
USW will maintain [CONFIDENTIAL TREATMENT].
[CONFIDENTIAL TREATMENT]
Additional equipment and facilities required to enhance USW network
service offerings will be added as addendums to the master contract.
3 FACILITY REQUIREMENTS
USW will need physical (cabinet) and power requirements, to include
HVAC requirements. USW requires [CONFIDENTIAL TREATMENT] 19-inch lockable
racks to hold the equipment required in the initial deployment, and the
ability to expand in the next six months. The equipment required in the
initial deployment has the following environmental requirements:
[CONFIDENTIAL TREATMENT]
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[CONFIDENTIAL TREATMENT]
4) NETWORK REQUIREMENTS
[CONFIDENTIAL TREATMENT]
5) STAFFING REQUIREMENTS
USW requires the following USi staff assistance:
1. A USi Point of Contact (POC) for receiving equipment and RMA support
2. A USi contact to provide facility access on a 24x7 basis 365 days
per year.
3. 24x7 USi staff support to provide assistance with initial
troubleshooting, including rebooting of the firewall servers. USi to provide
contacts names, phone and pager numbers to USW for this support.
4. An email address to use for non-critical support issues.
5. USi to provide USW with planned maintenance schedules at least 48
hours in advance. USW to identify contacts and methods to receive such
information.
6) PRICING
U S WEST will pay USi a monthly fee of [CONFIDENTIAL TREATMENT] per
19" rack, plus network costs associated with managing USWest's VPN equipment.
1. Quoted monthly price includes operations support costs (racks,
electric, HVAC,
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remote hands support), but does not include equipment/hardware (assumes U S
WEST will provide equipment to populate racks with routers, switches,
firewalls, servers, etc.).
2. Hosting fee does not include cost of network and telecommunications
(local loop, out of band management, etc.).
3. Network and telecommunications items specific to managing the VPN
equipment in U S WEST's VPN POP architecture will be passed through from USi
to U S WEST at [CONFIDENTIAL TREATMENT].
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SCHEDULE H
1) U S WEST AND USi BRAND USE GUIDELINES
Each party grants to the other a royalty-free, non-exclusive,
non-transferable license to use each party's Brand Names and Logos (subject
to the color and size restrictions as shown below) solely in connection with
the marketing and sales of iMAP Services or Products under this Agreement.
Each party may also use the other party's Brand Names and Logos on each
party's web site. Each party agrees to submit its samples of the proposed
use(s) of the other party's Brand Names and Logos for the other party's
inspection and approval prior to actual use. All uses of each party's Brand
Names and Logos by the other party must clearly and properly identify each
party's claim of ownership. The license granted herein by each party to the
other may be terminated at any time by each party's written notice to the
other party.
Each party acknowledges that it has no interest in the other party's
Brand Names or Logos except the license granted under this Agreement and that
each party is the sole and exclusive owner of all right, title and interest
in its Brand Names and Logos. Each party's use of the other's Brand Names or
Logos under this Agreement will not diminish the other party's title or
interest in its Brand Names or Logos. Each party agrees not to disparage the
other party's Brand Names or Logos in any manner.
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