1
EXHIBIT 10.29
THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
OUTSIDE SERVICE PROVIDER AGREEMENT
This OUTSIDE SERVICE PROVIDER AGREEMENT (the "Agreement") is
entered into as of April 7, 1998 by and between Verio, Inc., a
Delaware corporation, whose offices are located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Verio") and NTT
America, Inc., a New York corporation, whose offices are located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("NTT America")
(each a "Party" and collectively the "Parties").
WHEREAS, Verio is engaged in the business of providing
Internet services to customers in the United States and Canada, and
NTT America and its Affiliates are in the business of providing
telecommunications services to customers which include Japanese
multinational corporations, with operations in the United States and
the Pacific Rim;
WHEREAS, Verio desires to sell to NTT America and the NTT
America Affiliates certain services which will then be resold by
members of the NTT America Group to certain of their customers in the
United States and Canada, and members of the NTT America Group desire
to purchase such services, all as set forth herein; and
WHEREAS, contemporaneously with the execution of this
Agreement, Verio and NTT (as hereinafter defined) are entering into
the Stock Purchase and Master Strategic Relationship Agreement (the
"SPA") and the Investment Agreement (the "Equity Investment
Agreement"), both of even date herewith (collectively, the "Investment
Agreements").
NOW, THEREFORE, in consideration of the foregoing, the mutual
agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, NTT America and Verio agree as follows:
1. CERTAIN DEFINITIONS
1.1. "Affiliate" shall mean, as to a Party hereto, any person, corporation,
firm, partnership or other entity which, directly or indirectly,
through one or more intermediaries, controls (i.e., possesses,
directly or indirectly, the power to direct or cause the direction of
the management and policies of an entity, whether through ownership of
voting securities, by contract, or otherwise), is controlled by or is
under common control with such Party.
1.2. "ATM" or "Asynchronous Transfer Mode" shall mean the information
transfer standard for routing traffic which uses packets (cells) of a
fixed length (53-byte cell).
1.3. [ *** ]
1.4. [ ***
]
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
1.5. "Co-location Service" shall mean the service of renting or leasing
space at the location designated to install a Party's
telecommunications equipment or other equipment.
1.6. "E-Commerce" or "Electronic Commerce" shall mean the business between
trading partners to offer services utilizing electronic information
technologies, including the Internet.
1.7. "Effective Date" shall mean the Closing Date specified in the SPA.
1.8. "Frame Relay" shall mean the information transfer standard for
relaying traffic based on an address contained in the six-byte header
of a variable length packet that is up to 2,106 bytes long.
1.9. "Internet Service Provider" shall mean a commercial organization that
provides Internet services.
1.10. [ *** ]
1.11. [ *** ]
1.12. [ *** ]
1.13. [ *** ]
1.14. "Jointly Developed Services" shall have the meaning set forth in
Section 2.3.
1.15. "Managed Private Line" shall mean the management of private
communication lines dedicated to a customer's particular use.
1.16. [ *** ]
1.17. [ *** ]
1.18. "Network Security Services" shall mean the services provided by
Internet Service Providers to prevent infiltration of their network
and their customers' networks.
1.19. [ *** ]
1.20. [ *** ]
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
1.21. "NTT" shall mean Nippon Telegraph and Telephone Corporation, a
Japanese corporation.
1.22. "NTT America Affiliates" shall mean those entities set forth on
Attachment E attached hereto. NTT America may modify the list of
Affiliates set forth in Attachment E with Verio's prior consent, not
to be unreasonably withheld.
1.23. "NTT America Group" shall mean NTT America and the NTT America
Affiliates, collectively.
1.24. [ *** ]
1.25. "Peering" shall mean the commercial practice under which Internet
Service Providers exchange each other's traffic.
1.26. "POP" or "Point of Presence" shall mean a location where facilities
and equipment of an Internet Service Provider are installed.
1.27. "Resell Services" shall mean those services described as such in
Attachment A.
1.28. "Routers" shall mean equipment that routes data packets.
1.29 "Service Level Commitments" shall mean those service levels described
in Attachment B.
1.30. "TCP/IP" or "Transmission Control Protocol/Internet Protocol" shall
mean a suite of network protocols that allows computers with different
architectures and operating system software to communicate with other
computers on the Internet.
1.31. [ *** ]
1.32. "Transit" shall mean carrying customers' traffic to the Internet for a
fee.
1.33. "Web" shall mean the World Wide Web.
1.34. "Web Hosting" shall mean the daily operation and maintenance of Web
sites for customers.
1.35. "Working Group" shall have the meaning set forth in Section 6.2.
2. SCOPE OF SERVICES UNDER THIS AGREEMENT
2.1. Application of Agreement. This Agreement shall apply to the provision
of Resell Services and certain Jointly Developed Services by Verio and
NTT America. Neither NTT America nor any of the NTT America
Affiliates shall have any obligation to contract with Verio for any
other services such as Frame Relay, ATM and Managed Private Line
services. In the event NTT
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America requests that Verio provide additional services and Verio
desires to provide such services to NTT America, then such services
shall be included as Resell Services pursuant to a mutually agreed
upon written amendment to this Agreement.
2.2. Resell Services. The Resell Services which Verio shall provide to the
NTT America Group for resale to their respective customers are
described in Attachment A. All Resell Services shall be mutually
agreed upon by the Parties. Any change in the scope of such Resell
Services shall be pursuant to a mutually agreed upon written amendment
to this Agreement. Changes in the scope of the Resell Services may
include such additional services which may be developed by Verio and
NTT America pursuant to Section 6.2.3.
2.3. Jointly Developed Services. The Parties shall use their commercially
reasonable and good faith efforts to jointly develop certain services
as described in Section 6.2.3 below (the "Jointly Developed
Services"). Any change in the scope of such Jointly Developed
Services, or the development of additional services, shall be through
the establishment of one or more Working Groups in accordance with
Section 6.2 below. The implementation of any services which may be
developed pursuant to Section 6.2.3 shall be pursuant to a mutually
agreed upon written amendment to this Agreement. After the services
described in Section 6.2.3 have been developed and implemented for
commercial use, the Parties may include such services as Resell
Services through a mutually agreed upon written amendment to this
Agreement. Thereafter, NTT America and Verio may mutually determine
and appropriately modify the specifications and quality levels for
such services including, but not limited to, [ *** ]
[ *** ].
3. RELATIONSHIP OF THE PARTIES
3.1. Independent Contractors. NTT America and Verio are, and shall remain,
independent contractors, each responsible only for its own acts and/or
omissions. Nothing in this Agreement shall be construed to constitute
NTT America and Verio in the relationship of an employer-employee,
franchisor-franchisee, principal-agent, partners or joint venturers,
or as anything other than an independent contractor. Neither Party
shall have the authority to make any representations, claims or
warranties of any kind on behalf of the other Party or on behalf of
such Party's licensors or suppliers.
3.2. Preferred Resell Services Provider. NTT America hereby designates
Verio as the preferred supplier of Resell Services to the NTT America
Group, which Resell Services shall be resold by NTT America to NTT
America's customers in the United States and Canada. For purposes of
this Agreement, NTT America's customers shall include the customers of
any NTT America Affiliate. NTT America shall notify Verio of NTT
America's new customers, after the Effective Date, in the United
States and Canada which desire Resell Services, including a
description of the specific services and scheduling requirements of
such customers, provided that NTT America shall not provide such
notice if: (i) NTT America determines that it is not technically,
commercially or economically feasible under the terms and conditions
of this Agreement for
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Verio to provide the Resell Services to such NTT America customer;
(ii) NTT America's customer requests a service provider other than
Verio; or (iii) Verio cannot meet the customer's target installation
date. Subject to the foregoing, Verio shall provide Resell Services
to members of the NTT America Group for all of their customers for
which Verio receives such notification, provided that (a) Verio
receives a service order which reasonably complies with Verio's
standard business practices and (b) NTT America's customer has agreed
to abide by Verio's posted network use policy. If Verio is unable to
provide Resell Services to a member of the NTT America Group or its
customers in certain geographic areas, Verio and such NTT America
Group member may discuss a solution that is technically, commercially
and economically feasible; provided, however, that Verio shall not be
obligated to provide Resell Services in such geographic areas and such
NTT America Group member shall not be obligated to use Verio to
provide Resell Services to the NTT America Group member's customers in
such geographic areas.
3.3. Customer Relationships. Verio acknowledges that all of the NTT
America Group's customers who utilize the Resell Services provisioned
by Verio through NTT America shall contract exclusively with a member
of the NTT America Group, and Verio shall have no direct contractual
or financial interest in the customer relationships associated
therewith.
4. RESELL SERVICES TO BE PROVIDED
4.1. Verio's Responsibilities.
4.1.1. Services. Verio hereby agrees to provide Resell Services to
members of the NTT America Group so that the members of the
NTT America Group may provide such Resell Services to each
customer designated by a member of the NTT America Group to
receive the Resell Services. Verio shall perform all Resell
Services in accordance with and subject to the Service Level
Commitments set forth in Attachment B.
4.1.2. Equipment. Verio shall manage and maintain, at its expense,
the quality and capacity levels of Verio's network, including
without limitation obtaining any additional equipment
necessary to provide Resell Services to NTT America's
customers in accordance with the Service Level Commitments.
4.1.3. Billing. NTT America may request Verio, from time to time, to
provide billing services to the NTT America customers;
provided, however, that Verio is not obligated to provide such
billing services until such time, if any, as Verio has entered
into an agreement with Kenan Systems Corporation which allows
Verio to provide such billing services on behalf of NTT
America. Verio shall provide NTT America with such billing
information concerning NTT America's customers in Verio's
possession as NTT America may reasonably request in order to
allow NTT America to ▇▇▇▇ NTT America's customers as
contemplated by Section 4.2.3. NTT America acknowledges that
Verio has disclosed to NTT America that Verio's existing
license agreement with Kenan Systems Corporation
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currently does not permit Verio to ▇▇▇▇ NTT America's
customers on behalf of NTT America. Verio and NTT America
shall use commercially reasonable efforts to obtain such
licenses, consents and technical assistance from Kenan Systems
Corporation as may be necessary to allow Verio to provide NTT
America with billing services as well as access to Verio's
customer billing system for the purpose of viewing NTT
America's customer data and making appropriate adjustments
thereto. NTT America shall, at its own expense, pay for any
such license, consent or assistance from Kenan Systems
Corporation or other billing arrangements for NTT America's
customers requested by NTT America. Verio will provide access
to such billing records via a remote terminal to be located on
the premises of one or more of the members of the NTT America
Group. Notwithstanding the foregoing, billing and other data
which identifies each Party's customers shall only be
accessible by each Party's employees who need to access such
data to perform billing services, in accordance with the
Firewall Policy as described in Attachment F.
4.1.4. Customer Termination. Verio and NTT America will use
commercially reasonable good faith efforts jointly to develop
appropriate procedures (including suspension of service or
termination of a customer, and applicable notice periods) for
Verio and members of the NTT America Group to respond to
certain contingencies, such as a customer's violation of
Verio's posted network use policy and other situations which
may result in liability to Verio and/or a member of the NTT
America Group. After such procedures have been developed and
mutually agreed upon (the "Adverse Situation Procedures"),
Verio shall not terminate or materially adversely change any
Resell Service provided to NTT America customers except as
provided in the Adverse Situation Procedures. NTT America
acknowledges that members of the NTT America Group will
contractually require their customers to abide by Verio's
posted network use policy. In the Adverse Situation
Procedures, as to matters within the knowledge and control of
a member of the NTT America Group, such NTT America Group
member shall agree to act as quickly to remedy a violation of
Verio's posted network use policy by such members' customers
as Verio customarily acts to remedy comparable violations by
Verio's own customers or, in the event such NTT America Group
member fails to act within such time frame, agree to
compensate Verio for any liability to a third party arising
from such NTT America Group member's failure to act within
such time frame.
4.2. NTT America's Responsibilities.
4.2.1. Services. NTT America shall be responsible to perform its
obligations set forth and described in Attachment A.
4.2.2. Equipment. NTT America shall obtain and maintain, at its
expense, such equipment required pursuant to Attachment A.
4.2.3. Billing. NTT America shall be responsible for billing NTT
America's customers for all Resell Services provided to such
customers by Verio on behalf of NTT America.
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4.2.4. Costs and Expenses. NTT America or the relevant NTT America
Affiliate shall be responsible for payment of the costs and
expenses specifically designated as a responsibility of NTT
America or such NTT America Affiliate pursuant to this
Agreement.
4.3. Customer Service Center.
Verio and NTT America shall work together to develop a group of
Japanese speaking customer support personnel at Verio's Customer
Service Center, to be mutually agreed upon and described in Attachment
A.
5. MARKETING
5.1. Development of Marketing Plan. Verio and NTT America shall jointly
develop and mutually agree upon a marketing plan which shall govern
all aspects of the Parties' joint promotion of the Resell Services
(the "Marketing Plan"). The Marketing Plan shall be based upon the
principles set forth and described in Attachment C attached hereto
and, when mutually agreed upon by the Parties, shall replace and
supersede Attachment C.
5.2. Verio's Responsibilities. Verio shall be responsible to perform its
obligations set forth and described in Attachment C.
5.3. NTT America's Responsibilities. NTT America shall be responsible to
perform its obligations set forth and described in Attachment C.
5.4. Certain Covenants. Verio and NTT America covenant to each other that
it will: (a) not disparage the other Party's products and services or
the good name, good will and reputation of the other Party; (b) avoid
deceptive, misleading, or unethical practices that are or might be
detrimental to the other Party, its products or services, or the
public; (c) make no representations, warranties or guaranties with
regard to the other Party or its products or services, except as
authorized by the other Party in writing; (d) not publish or employ,
or cooperate in the publication or employment of, any misleading or
deceptive advertising material with regard to the other Party or its
products or services; and (e) perform its obligations under this
Article 5 in accordance with the Firewall Policy set forth in
Attachment F. For purposes of this Section 5.4, the term "Party"
shall include the Party's Affiliates.
6. JOINT EFFORTS
6.1. Purpose. During the term of this Agreement, the Parties intend to
develop jointly certain capabilities and to explore certain methods to
integrate the Parties' existing capabilities, as set forth and more
fully described in this Article 6. Prior to the implementation of any
plan developed pursuant to this Article, the Parties shall discuss and
mutually agree upon any amendment to this Agreement reasonably
required to clarify or establish the rights and
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obligations of the Parties in connection with the implementation of
such plan. Any resulting additional service developed pursuant to
Section 6.2.3 which NTT America desires to resell to its customers
shall be included among the Resell Services described in Attachment A
pursuant to a mutually agreed upon amendment to this Agreement. All
of the Parties' joint efforts under this Article 6 shall be subject to
the Firewall Policy set forth in Attachment F.
6.2. Establishment of Working Groups. Within thirty (30) calendar days
after the Effective Date of this Agreement, NTT America and Verio
shall establish working groups to develop certain plans described
below (each a "Working Group"). The representatives of the Parties in
each Working Group shall be experts in the area to be addressed by the
applicable Working Group. Each plan developed by a particular Working
Group must be submitted to the appropriate levels of management in
each Party for approval. Neither Party shall have any obligation to
implement a plan unless the Parties mutually agree to such
implementation in writing pursuant to an amendment to this Agreement
or otherwise.
6.2.1. [ *** ] Working Group ("[***] WG"). The
Parties shall establish and direct the OSS WG sub-working
groups to address and to formulate plans to determine the
following issues:
6.2.1.1. [ *** ]
Sub-Working Group ("[***] SWG"). The Parties
shall establish and direct the NMS SWG to
develop a plan for the [ *** ]
[ *** ]
[ *** ] which chooses to so (***) (the
"[***] Plan"). The [***] Plan shall describe:
(a) how and to what extent each Party's
[ *** ]
[***], including a description of any
modification to [ *** ] necessitated
thereby; (b) a schedule to [ *** ]
[ *** ]
[ *** ] ; (c) the
estimated costs of such efforts; and (d) the
ongoing operating expenses estimated to be
incurred by Verio as a result of [ *** ]
[ *** ]
[ *** ]. The Parties intend that
each Party shall bear its own expenses
related to [ *** ]
[ *** ]
[ *** ], and that [ *** ] ongoing
operating expenses shall be borne solely by
[***]. Any incremental license fees
necessary to support [ *** ]
shall be borne solely by [ *** ].
6.2.1.2. [ *** ]
Sub-Working Group ("[ *** ] SWG").
The Parties shall establish and direct the
[ *** ] SWG to formulate a plan
(the "[ *** ] Plan") which shall
describe: (a) a method to [ *** ]
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[ *** ] which minimizes
the costs and delays to each Party; (b)
recommendations on how to process [ *** ]
[ *** ] through each Party's [ *** ]; (c)
the estimated licensing fees, if any, to
[ *** ] with respect to [ *** ]
[ *** ] utilized by [ *** ]
[ *** ]; (d) an estimate of
each Party's costs with respect to [ *** ]
[ *** ; and (e) the on-going operating
expenses estimated to be incurred by [ *** ]
for [ **** ]
[ *** ], use of and access to [ *** ]
[ *** ]. The Parties
acknowledge and agree that the Parties' goal
is (i) to minimize development efforts
required to [ *** ] and (ii) that
appropriate license agreements be established
to [ *** ].
Any incremental license fees necessary to
support [ *** ] shall be borne
solely by [ *** ].
6.2.1.3. [ *** ] Sub-Working Group
("[ *** ] SWG"). The Parties shall
establish and direct the [ *** ] SWG
to formulate a plan (the "[ *** ]
Plan") which shall describe: (a)
recommendations on how to structure a [ *** ]
for [ *** ] , including
without limitation, identifying the Party
that shall be responsible for such [ *** ];
(b) the estimated licensing fees, if
any, to [ *** ] with
respect to [ *** ] services; (c) an estimate
of each Party's costs with respect to [ *** ]
services; and (d) the on-going operating
expenses estimated to be incurred by [ *** ]
[ *** ] for use of and
access to [ *** ]. The
Parties acknowledge and agree that the
Parties' goal is (i) to establish a [ *** ]
[ *** ] and limit
the costs associated therewith, (ii) to
establish appropriate license agreements to
provide the [ *** ]
[ *** ], and (iii) to work together to
[ *** ]
[ *** ].
6.2.2. [ *** ] Working Group ("[ *** ] WG").
The Parties shall establish and direct the [ *** ]
WG to address [ *** ]
[ *** ] and to formulate plans to determine the [ *** ]
[ *** ] (to be embodied,
respectively, in the "Peering Arrangement" and the "Transit
Arrangement"). Verio shall provide the initial proposed
pricing schedule for the Transit Arrangement. The Parties
acknowledge and agree that the amount of time to be allocated
to the [ *** ] shall be determined by the [ *** ]
[ *** ] WG. The [ *** ] WG shall also develop
a plan to
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establish the [ *** ]
[ *** ]; provided, however, that the Parties first establish
and implement a [ *** ].
The Parties acknowledge that until such [ *** ]
[ *** ] is developed and implemented as provided
herein, [***] shall remain [ *** ].
6.2.2.1. Peering Arrangement. The [ *** ]
[ *** ] WG shall develop a Peering
Arrangement which would: (a) provide for a
[ *** ], without
charge for the [ *** ]
[ *** ]
[ *** ]
(b) identify locations within the continental
United States for [ *** ]
[ *** ]; and (c) agree on a
cost-sharing mechanism for the implementation
of the peering plan to include, without
limitation, [ *** ] expenses, [***]
costs, and [ *** ] expenses, as may
be required to implement the agreed-upon
peering approach.
6.2.2.2. Transit Arrangement. The [ *** ]
[ *** ] WG shall develop a Transit
Arrangement which would: (a) provide for the
[ *** ]
[ *** ]
[ *** ]; (b) provide for the
[ *** ]
[ *** ]
[ *** ]; (c) identify locations
within the continental United States for
[ *** ] relationships; (d) provide for
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]; (e) provide
for [ *** ] between the [ *** ] and the
[ *** ] and establish mutually
agreeable [ *** ] terms [ *** ]
[ *** ]; and (f) provide for
[ *** ] review of the pricing schedule with
respect to the Transit Arrangement.
6.2.3. Service Development. NTT America and Verio shall use
commercially reasonable good faith efforts to negotiate the
terms and conditions of an amendment to this Agreement to
develop the following services:
6.2.3.1. [ *** ] Working
Group ("[ *** ] WG"). The Parties shall
establish and direct the [ *** ] WG to develop
a plan for the implementation of [ *** ] (the
"[ *** ]
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Arrangement") which shall provide [ *** ]
services to their respective customer bases
through both [ *** ]
[ *** ].
6.2.3.2. Additional Services. The Parties
shall use commercially reasonable good faith
efforts to jointly develop additional
services under the same procedures provided
above for the [ *** ] WG, including, for
example and without limitation: (i) [ *** ]
[ *** ]; (ii) [ *** ]; (iii) [ *** ]; and
(iv) [ *** ].
6.3. Additional Working Groups. The Parties agree to establish additional
Working Groups to address systems issues encountered by the Parties in
the future during the course of their commercial relationship. In
particular, a Working Group shall be established to address the sales
and marketing issues addressed in Attachment C, and an additional
Working Group shall be established to identify appropriate technical
measurements of Verio's provisioning of Resell Services to be used in
the Service Level Commitments.
6.4. Working Group Expenses. Each Party shall bear its own costs and
expenses incurred in connection with such Party's participation in
each Working Group.
6.5. Results of Working Groups. To the extent necessary, the agreements
reached by the working groups in their respective areas of
responsibility shall be embodied in one or more amendments to this
Agreement.
7. FEES AND EXPENSES
7.1. Fees for Resell Services. NTT America (directly or through the NTT
America Affiliates) agrees to pay Verio for all Resell Services
provided to members of the NTT America Group at such prices and upon
such terms as set forth on Attachment D.
7.2. Customer Pricing. Members of the NTT America Group shall, in their
sole discretion, set the prices for the Resell Services provided to
their respective customers.
7.3. Price Adjustment. In no event shall Verio charge members of the NTT
America Group [ *** ] for any Resell Service at a rate higher than
the lowest rate being charged to any other strategic partner of Verio.
In the event that Verio has no other strategic partners, Verio shall
extend to the members of the NTT America Group [ *** ] prices
[ *** ]
[ *** ]
[ *** ]
[ *** ]
[ *** ]. Any change in pricing effected
as a result of the application of the immediately preceding sentence
shall come into effect as of the effective time [ **** ]
[ *** ]
[ *** ].
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7.4. Expenses. The Parties shall set forth their agreement concerning
payment of each Party's expenses in Attachment D hereto.
8. USE OF TRADEMARKS, SERVICE MARKS AND TRADE NAMES
8.1. Trademark License. In no event may either Party or its Affiliates use
the other Party's or the other Party's Affiliates' trademarks, service
marks or trade names without prior written consent of the other Party
or its Affiliate, as the case may be, which may be granted or withheld
in the other Party's or its Affiliate's sole discretion.
8.2. Ownership. Each Party acknowledges that the other Party and its
Affiliates own and retain all trademarks, service marks, trade names,
logos, designations, copyrights and other proprietary rights in or
associated with the other Party and its Affiliates, and agrees that it
will not at any time during or after the term of this Agreement assert
or claim any interest in or do anything that may adversely affect the
validity of any trademark, service ▇▇▇▇, trade name, logo, designation
or copyright belonging to or licensed to the other Party or its
Affiliates (including, without limitation, any act or assistance to
act, which may infringe or lead to the infringement of any of the
other Party's or its Affiliates' proprietary rights).
9. ORDERING
9.1. Purchase Orders. NTT America and Verio shall jointly develop and
mutually agree upon an ordering process which shall include the
appropriate use of applicable software and forms that are to be
provided by Verio and which may be altered from time to time as
commercially necessary.
9.2. Cancellation of Purchase Orders. Any purchase order from any member
of the NTT America Group may be canceled in whole or part by such NTT
America Group member without charge upon written notice thereof
received by Verio prior to Verio making commitments which will cause
Verio to incur cancellation charges. NTT America shall reimburse
Verio for any cancellation charges incurred by Verio as a result of a
breach of the immediately preceding sentence by a member of the NTT
America Group.
9.3. Change Orders. Except to the extent that Verio incurs any charges to
any third party, changes may be made by NTT America Group members, at
no additional charge, in any purchase order under this Agreement
(including changes in the quantities and configurations of Verio's
services covered by such purchase order), by a written notice
requesting such changes which is received by Verio at least fifteen
(15) days prior to the scheduled date to initiate services.
10. CONFIDENTIAL INFORMATION
10.1. Confidential Information and Obligations. All documents, other
materials and other information made available to a Party or its
employees by the disclosing Party in connection with this
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13
Agreement, including but not limited to, this Agreement and any trade
secret, information, process, technique, algorithm, computer program
(source and object code), design, drawing, formula or test data
relating to any research project, work in process, future development,
engineering, manufacturing, marketing, servicing, financing or
personnel matter relating to the disclosing party, its present or
future products, sales, suppliers, clients, customers, employees,
investors or business, whether in oral, written, graphic, or
electronic form (collectively, the "Confidential Information"), shall
be deemed to have been furnished to the other Party in confidence and
shall remain the exclusive property of the disclosing Party both
during and after the term of this Agreement. Each Party shall
maintain in trust and confidence all Confidential Information which it
may (i) develop or accumulate for the disclosing Party during the term
of this Agreement or (ii) acquire from the disclosing Party at any
time, and will not during the term of this Agreement or thereafter,
use the disclosing Party's Confidential Information for its own
benefit or disclose or permit any of its employees or agents to
disclose, through any medium, the Confidential Information to any
other person; provided, however, that the recipient Party may disclose
the disclosing Party's Confidential Information to such employees,
agents and Affiliates of the recipient Party who need to know such
Confidential Information for the purpose of effectuating this
Agreement and who have been informed of and have agreed to protect the
confidential nature of such Confidential Information. For purposes of
this Article 10, the term "Party" shall include the Party's
Affiliates. The rights and obligations of the Parties under this
Article 10 shall be subject to the provisions of Section 5.2 of the
Equity Investment Agreement with respect to the Designated Employees
(as defined in the Equity Investment Agreement).
10.2. Use of Information. Nothing in this Agreement shall prohibit or limit
either Party's use of information (including, but not limited to,
ideas, concepts, know-how, techniques, and methodologies) which (a) is
now, or hereafter becomes, publicly known or available through lawful
means; (b) is rightfully in recipient's possession, as evidenced by
recipient's records; (c) is disclosed to recipient without
confidential or proprietary restriction by a third party who
rightfully possesses the information (without confidential or
proprietary restriction); (d) is independently developed by recipient
without any breach of this Agreement; or (e) is the subject of a
written permission to disclose provided by the disclosing party. In
the event either Party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information
of the other Party, it shall provide prompt notice to the other Party
of such receipt and permit the other Party an opportunity to obtain a
protective order with respect to such Confidential Information. The
Party receiving the subpoena shall thereafter be entitled to comply
with such subpoena or other process to that extent required by law.
10.3. Return of Confidential Information. Upon the termination or
expiration of this Agreement or upon request from the disclosing Party
or after the non-disclosing Party's need for it has expired, the
non-disclosing Party shall return all Confidential Information to the
disclosing Party and certify in writing that it has returned or
destroyed all such information to the disclosing Party and has not
kept any copies of the Confidential Information. The obligation of
each Party with respect to the Confidential Information shall survive
the termination or expiration of this Agreement for a period of three
(3) years.
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14
10.4. Publicity. Except as necessary to comply with applicable securities
laws or the rules of any applicable securities exchange (provided that
the Party undertaking the publicity has first consulted with the other
Party), no publicity, including, but not limited to press releases,
concerning this Agreement and the relationship of the Parties, shall
be issued by either Party without the prior written consent of the
other Party. Notwithstanding the foregoing, (a) the Parties shall
issue a mutually agreeable joint press release in the United States
and Japan announcing this Agreement upon the Closing under the SPA and
(b) NTT may issue a mutually agreeable press release solely in Japan
announcing the Investment Agreements and this Agreement upon the
execution of this Agreement.
11. INTELLECTUAL PROPERTY
11.1. Grant of Rights. The Parties acknowledge and agree that they shall
grant each other the licenses to their respective intellectual
property rights as necessary and as mutually agreed upon on a
case-by-case basis.
11.2. NTT America's and its Affiliates' Intellectual Property. Unless
otherwise herein expressly provided, all work product, documentation,
procedures, methods, computer programs, source code, software
products, IP products, systems designs, ideas, inventions, techniques
and know how ("Work Product and Innovations") that are developed,
discovered or created solely by NTT America or its Affiliates in the
course of performing NTT America's obligations under this Agreement,
shall be the exclusive property of NTT America or its Affiliates, as
the case may be.
11.3. Verio's and its Affiliates' Intellectual Property. Unless otherwise
herein expressly provided, all Work Product and Innovations that are
developed, discovered or created solely by Verio or its Affiliates in
the course of performing Verio's obligations under this Agreement,
shall be the exclusive property of Verio or its Affiliates, as the
case may be.
11.4. Service Development. Subject to the provisions of this Article 11,
the ownership of any intellectual property developed pursuant to
Section 6.2.3 shall be negotiated by the Parties on a project by
project basis.
12. REPRESENTATIONS AND WARRANTIES
12.1. Representations and Warranties of Verio. Verio represents, warrants,
and covenants to NTT America that:
12.1.1. Verio has the right to enter into this Agreement and to
provide the Resell Services described herein, this Agreement
does not violate any material contracts or other obligations
by which Verio or any of its assets are bound, and the Resell
Services as provided by Verio to the members of the NTT
America Group do not infringe any intellectual property right
(including but not limited to patents, copyrights, trademarks
and trade secrets) of any third party.
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15
12.1.2. Verio shall continue standard operational practices and
procedures with respect to NTT America's customers relating to
its Resell Services, provide sufficient bandwidth and
availability to ensure that the Resell Services are available
to the members of the NTT America Group and their customers,
provide such commercially and economically viable data loss
prevention and disaster recovery mechanisms, and provide the
latest security features to minimize and prevent infiltration
of Verio's network.
12.1.3. Verio will comply with all applicable international, national,
state, regional, and local laws and regulations in performing
its duties hereunder and in any of its dealings with respect
to the products or services of the members of the NTT America
Group where to not so comply will have a material adverse
effect on Verio's ability to perform its obligations under
this Agreement.
12.2. Representations and Warranties of NTT America NTT America represents,
warrants, and covenants to Verio that:
12.2.1. NTT America has the right to enter into this Agreement and to
resell the Resell Services described herein, this Agreement
does not violate any material contracts or other obligations
by which NTT America or any of its assets are bound and,
except to the extent the representation and warranty set forth
in Section 12.1.1 is not correct, the Resell Services as
provided by the members of the NTT America Group to their
customers do not infringe any intellectual property right
(including but not limited to patents, copyrights, trademarks
and trade secrets) of any third party.
12.2.2. NTT America will comply with all applicable international,
national, state, regional, and local laws and regulations in
performing its duties hereunder and in any of its dealings
with respect to the products or services of Verio where to not
so comply will have a material adverse effect on NTT America's
ability to perform its obligations under this Agreement.
13. INDEMNIFICATION
13.1. Agreement of Verio to Indemnify.
Subject to the conditions, provisions and limitations
of this Article 13, and the other applicable provisions of this
Agreement, Verio hereby agrees to indemnify, defend and hold harmless
the members of the NTT America Group from and against all actual and
direct damages, costs and expenses, including, without limitation,
interest, penalties and reasonable attorneys' fees and disbursements,
asserted against, resulting to, imposed upon or incurred by the
members of the NTT America Group by reason of or resulting from any of
the following:
13.1.1. Any grossly negligent act or grossly negligent failure to act
or willful misconduct of Verio under this Agreement or any
violation of law by Verio, its employees, officers,
subcontractors, business invitees or agents;
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13.1.2. Any material breach of, or failure to perform any of Verio's
obligations, representations or covenants under, this
Agreement; or
13.1.3. Any third party claim for personal injury or physical damage
to property caused by the grossly negligent or intentional
acts or omissions of Verio, its employees, agents,
subcontractors, or business invitees.
13.2. Agreement of NTT America to Indemnify.
Subject to the conditions, provisions and limitations
of this Article 13, and the other applicable provisions of this
Agreement, NTT America hereby agrees to indemnify, defend and hold
harmless Verio from and against all actual and direct damages, costs
and expenses, including, without limitation, interest, penalties and
reasonable attorneys' fees and disbursements, asserted against,
resulting to, imposed upon or incurred by Verio by reason of or
resulting from any of the following:
13.2.1. Any grossly negligent act or grossly negligent failure to act
or willful misconduct or any violation of law by NTT America,
its employees, officers, subcontractors, business invitees or
agents;
13.2.2. Any material breach of, or failure to perform any of NTT
America's obligations, representations or covenants under,
this Agreement; or
13.2.3. Any third party claims for personal injury or physical damage
to property caused by the negligent or intentional acts or
omissions of NTT America, its employees, agents,
subcontractors, officers or business invitees.
13.3. Conditions of Indemnification.
The obligations and liabilities of Verio and NTT
America hereunder with respect to their respective indemnities
pursuant to this Article 13, resulting from any claim, demand or other
assertion of liability by third parties (hereinafter called
collectively "Demands"), shall be subject to the following terms and
conditions:
13.3.1. Defense by Indemnifying Party. Subject to the consent of the
Party to be indemnified pursuant to this Article 13 (the
"Indemnified Party") (such consent not to be unreasonably
withheld, conditioned or delayed), the indemnifying Party (the
"Indemnifying Party") will have the right to undertake, by
counsel or representatives of its own choosing, the defense,
compromise or settlement of any such Demand asserted against
the Indemnified Party, such defense, compromise or settlement
to be undertaken on behalf of and for the account and risk of
the Indemnifying Party.
13.3.2. Defense by Indemnified Party. In the event the Indemnifying
Party shall elect not to undertake such defense by its own
representatives, the Indemnifying Party shall give
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prompt written notice of its election to the Indemnified
Party, and the Indemnified Party will undertake the defense,
compromise or settlement thereof by counsel designated by it
whom the Indemnifying Party determines in writing to be
satisfactory for such purposes. The consent of the
Indemnifying Party to the Indemnified Party's choice of
counsel shall not be unreasonably withheld, conditioned or
delayed.
13.3.3. Settlement. No settlement or compromise of any such Demand
may be made by a Party hereto without the prior express
written consent or approval of the other Party hereto.
13.3.4. Joint Liability. In the event that any Demand shall arise out
of a transaction or cover any period or periods wherein NTT
America and Verio each is or may be liable hereunder for part
of the liability or obligation arising therefrom, then such
Parties shall, each choosing its own counsel and bearing its
own expense, defend such Demand, and no settlement or
compromise of such Demand may be made without the joint
consent or approval of Verio and NTT America, except where the
respective liabilities and obligations of NTT America and
Verio are clearly allocable or attributable on the basis of
objective facts.
13.3.5. Survival. The agreements to indemnify contained in this
Article 13 shall survive termination or expiration of this
Agreement for a period of two years after the effective date
of such termination or expiration; provided, however, that
with respect to any Demand or other matter (including actual
and direct damages incurred other than as a result of a third
party claim) for which notice has been timely given within
such two year period, the indemnification period shall be
extended until the final resolution of such Demand or other
matter (including actual and direct damages incurred other
than as a result of a third party claim).
13.3.6. Notice. A Party having reason to believe that it may be
entitled to indemnification under this Article 13 shall give
reasonably prompt written notice to the other Party hereto
from whom indemnification may be sought specifying in
reasonable detail the nature and basis of any Demand or other
matter (including actual and direct damages incurred other
than as a result of a third party claim) which may give rise
to such indemnification but such notice shall not be a
condition of such indemnification. The failure of the
Indemnified Party to provide such notice shall not relieve the
Indemnifying Party of its obligations under this Article 13,
unless the delay or failure to provide such notice prejudices
an Indemnifying Party in a manner that demonstrably results in
additional actual and direct damages to such Indemnifying
Party, in which event such Indemnifying Party shall be
relieved of such obligations but only to the extent such
additional actual and direct damages can be proved.
14. LIMITATION OF LIABILITY
14.1. NO CONSEQUENTIAL DAMAGES. EXCEPT TO THE EXTENT THAT A PARTY IS
REQUIRED TO INDEMNIFY THE OTHER PARTY FOR THE PAYMENT OF THE SAME
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
TO A THIRD PARTY PURSUANT TO ARTICLE 13, NEITHER PARTY (OR THEIR
AFFILIATES) SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON,
INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY
TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON
THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY)
OR OTHERWISE, EVEN IF THE OTHER PARTY (OR ITS AFFILIATES) HAS BEEN
WARNED OF THE POSSIBILITY OF SUCH DAMAGES. ALL REMEDIES, INCLUDING,
WITHOUT LIMITATION, THE TERMINATION OF THIS AGREEMENT AND ALL OF THE
REMEDIES PROVIDED BY LAW (AND NOT EXCLUDED PURSUANT TO THE FOREGOING
SENTENCE), SHALL BE DEEMED CUMULATIVE AND NOT EXCLUSIVE.
14.2. MAXIMUM AGGREGATE LIABILITY. IN NO EVENT WILL NTT AMERICA'S OR
VERIO'S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS
AGREEMENT, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT,
CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED
THE TOTAL AMOUNT PAID BY THE MEMBERS OF THE NTT AMERICA GROUP
HEREUNDER DURING THE PREVIOUS TWELVE MONTHS FROM THE DATE SUCH CLAIM
AROSE.
15. TERM AND TERMINATION
15.1. Term. The term of this Agreement shall be the period of time
commencing on the Effective Date and ending upon the earlier of (a)
the date immediately preceding the third (3rd) anniversary of the
Effective Date and (b) the termination of this Agreement in accordance
with the provisions of this Article 15. In no event shall either
Party have any obligations or liability under this Agreement, and this
Agreement shall not come into effect, until the Parties execute the
Investment Agreements. Either Party may terminate this Agreement in
the event that such Party terminated, or is entitled to terminate, the
SPA pursuant to Section 6.1 thereof.
15.2. Termination for Cause. This Agreement may be terminated by either
Party upon the expiration of sixty (60) days after written notice of a
material breach of any of the obligations of the other Party contained
in this Agreement or the Investment Agreements, if the other Party
fails to cure such breach during the sixty (60) day cure period.
15.3. [ *** ]
15.4. [ *** ]
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
[ *** ].
16. DISPUTE RESOLUTION
16.1. Dispute Resolution. Any controversy or claim arising out of, relating
to or in connection with this Agreement shall be resolved through
arbitration pursuant to the Commercial Arbitration Rules of the
American Arbitration Association then in effect, as modified by the
terms of this Article 16. Arbitration shall be conducted at a
location in Denver, Colorado, to be agreed upon by the Parties.
16.2. Incorporation by Reference. To the extent this Article 16 is deemed a
separate agreement, independent from this Agreement, Section 17.6 and
Section 17.9 are incorporated herein by reference.
16.3. Selection of Arbitrators. Arbitration shall be conducted by three (3)
arbitrators with each Party to this Agreement selecting one (1)
arbitrator each and the two selected arbitrators then selecting the
third arbitrator.
16.4. Limited Discovery. Prior to the commencement of the arbitration, each
Party shall be entitled to take limited discovery, including the
rights to request a reasonable number of documents, to serve no more
than twenty (20) interrogatories and to take no more than three (3)
depositions. This limited discovery shall be conducted in accordance
with the Federal Rules of Civil Procedure, which shall be interpreted
and enforced by the arbitrators.
16.5. Hearing and Decision. The arbitrators shall, as soon as practicable
and upon fifteen (15) days' written notice to each Party, conduct an
arbitration hearing and proceeding on the merits of the
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
dispute and thereafter shall issue a written decision citing the bases
for the decision, including findings of fact and conclusions of law.
The decision of the arbitrators shall be based on a majority vote.
16.6. Costs and Expenses. Each Party shall bear its own costs and expenses
arising out of any arbitration, including the costs of any arbitrator
selected by it, and shall bear equally the costs, expenses and fees of
the third arbitrator.
16.7. Consolidation and Joinder. Any arbitration arising out of or relating
to this Agreement or breach thereof may include by consolidation,
joinder or other manner any other person or persons which or whom a
party to the arbitration reasonably believes to be substantially
involved in a common question of fact or law.
16.8. Enforcement. The agreement to arbitrate shall be specifically
enforceable under prevailing arbitration law. Any award rendered by
the arbitrators shall be final, binding and enforceable by any party
to the arbitration, and judgment may be rendered upon it in accordance
with applicable law in a court of competent jurisdiction.
16.9. Waiver of Right to Litigate. Each Party hereby waives any and all
rights to, and hereby covenants not to, bring any lawsuit, arbitration
or other proceeding in any jurisdiction, judicial body or forum
arising under or relating to this Agreement or its subject matter
(other than an arbitration proceeding described above or a legal
proceeding solely to enforce the award or judgment of such arbitration
proceeding).
16.10. United States Arbitration Act. The Parties acknowledge that this
Agreement evidences a transaction involving interstate commerce. The
United States Arbitration Act shall govern the interpretation,
enforcement, and proceedings pursuant to the arbitration clause in
this Agreement.
17. GENERAL PROVISIONS
17.1. No Third-Party Beneficiary. It is the explicit intention of the
Parties hereto, that, except for the NTT America Affiliates [ *** ],
no person or entity other than the Parties is or shall be entitled
to bring any action to enforce any provision of this Agreement against
either of the Parties, and the covenants, undertakings, and agreements
set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by the Parties hereto or their respective
successors and assigns as permitted hereunder.
17.2. NTT America Affiliate. NTT America has the right to assign the
benefits of this Agreement to any one or more of the NTT America
Affiliates but such assignment shall not render them liable for any of
the obligations under this Agreement, which shall remain the exclusive
obligations of NTT America.
17.3. Force Majeure. Subject to the next following sentence, neither Party
shall be deemed in default of this Agreement to the extent that
performance of its obligations or attempts to cure any breach
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are delayed or prevented by reason of any act of God, fire, natural
disaster, accident, act of government, sabotage of material or
supplies or any other cause beyond the control of such Party ("Force
Majeure"), provided that such Party gives the other Party written
notice thereof promptly and, in any event, within fifteen (15) days of
discovery thereof. In the event of such a Force Majeure, the time for
performance or cure shall be extended for a period equal to the
duration of the Force Majeure but not in excess of six (6) months.
17.4. Assignment. This Agreement and the rights and obligations hereunder
shall not be assigned or otherwise transferred by Verio without the
prior written consent of NTT America. NTT America shall have the
right to assign or transfer its rights under this Agreement to an
Affiliate. Any assignment by NTT America to any entity or person
other than an Affiliate of NTT America requires the prior written
consent of Verio.
17.5. Survival. The provisions of this Agreement which by their terms are
intended to survive the termination of this Agreement, including but
not limited to, Sections 8.2, 11.2, 11.3, 15.3 and 15.4 and Articles
10, 13, 14, 16, and 17 shall survive the termination of this
Agreement, regardless of the reason for the termination.
17.6. Notices. All notices hereunder shall be made by certified or
registered airmail, return receipt requested, by recognized overnight
courier, by confirmed telex or facsimile or confirmed electronic mail,
in each case if sent during normal business hours of the recipient,
and if not, then on the next business day, shall be deemed complete
upon receipt, and shall be sent to the Parties at the following
addresses (or at such other address for a Party as shall be specified
by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof).
Notices to Verio: Verio, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Copy to the General Counsel of Verio at the address set forth
above.
Notices to NTT America: NTT America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Vice
President
Telephone: ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇▇
Copy to: Nippon Telegraph and Telephone
Corporation
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Global Communications Headquarters
Tokyo Opera City Tower
▇▇-▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇ ▇▇▇-▇▇ ▇▇▇▇▇
Attention: Mr. Tatsuo Kawasaki, Vice
President
Telephone: ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Facsimile: 81 3 5353 5753
17.7. Waiver. Any waiver of any right or default hereunder shall be
effective only in the instance given and shall not operate as or imply
a waiver of any similar right or default on any subsequent occasion.
17.8. Severability. No determination by a court of competent jurisdiction
that any term or provision of this Agreement is invalid or otherwise
unenforceable shall operate to invalidate or render unenforceable any
other term or provision of this Agreement and all remaining provisions
shall be enforced in accordance with their terms.
17.9. Governing Law. This Agreement shall be governed by the laws of the
State of New York (exclusive of the choice of law rules thereof).
17.10. Entire Agreement; Headings. This Agreement, the Attachments and the
Investment Agreements hereto constitute the entire agreement between
the Parties pertaining to the subject matter hereof and supersede all
prior and contemporaneous agreements, negotiations and understandings,
oral or written. This Agreement may be modified only by an instrument
in writing duly executed by both Parties. The Article and Section
headings in this Agreement are inserted for convenience of reference
only and shall not be used in interpreting this Agreement.
17.11. Attorney's Fees. In any arbitration all costs of arbitration
including reasonable attorney fees shall be allocated to such Party as
designated by the arbitrators.
17.12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
17.13 Performance by Affiliates. In the event that a Party's performance of
its obligations under this Agreement requires the cooperation or
performance of an Affiliate of such Party, such Party shall procure
the cooperation or performance of its Affiliate.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have signed and sealed this
Agreement on the date first set forth above.
VERIO, INC. NTT AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- --------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------- ------------------------------
Title: President Title: President & CEO
---------------------------- -----------------------------------
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
ATTACHMENT A
SERVICES
1. RESELL SERVICES
The Resell Services that Verio shall provide to the NTT
America Group members and their customers are as follows:
1. Normal commercial dedicated and dial-up access
connection to Verio's network
2. Web-hosting and Co-location
3. Network Security Services
4. E-Commerce
5. Consulting services
6. Additional services as may be included herein by
mutual agreement of the Parties pursuant to Section
2.2.
2. JOINTLY DEVELOPED SERVICES
The Jointly Developed Services are those services that Verio and NTT
America may jointly develop in accordance with Article 6 through
Working Groups which Verio shall provide to members of the NTT America
Group and their respective customers upon mutual agreement. After such
services have been developed for commercial use, such services shall,
upon the mutual agreement of Verio and NTT America, be included among
the other Resell Services defined above.
The Jointly Developed Services are as follows:
1. [ *** ]
2. Such other services as the Parties may mutually agree.
3. [ *** ]
3.1 Verio acknowledges and agrees that: (a) [ *** ]
[ *** ]
[ *** ]
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
[ *** ].
3.2 Verio may provision [ *** ].
3.3 Verio will provide the [ *** ].
4. CUSTOMER CARE
4.1 Verio shall provide the Resell Services and the
technical support for the Resell Services to members of the NTT
America Group for their customers.
4.2 Verio shall be responsible for responding to
technical issues relating to network connectivity and trouble
shooting, as appropriate, after being notified by members of the NTT
America Group or their customers of problems with the Resell Services.
Verio will provide outside assistance as and when necessary in
accordance with its standard technical support practices. If an NTT
America customer's equipment is provided and managed by Verio, Verio
shall be responsible for on site maintenance and trouble shooting for
that equipment. Verio shall promptly notify NTT America of any
problems or difficulties that have the potential to adversely impact,
or are having an adverse impact on, the Resell Services provided to
NTT America's customers.
4.3 A toll-free number shall be provided by Verio to NTT
America, at NTT America's expense, for NTT America's customers and
shall be used as the method for such customers to reach the Japanese
speaking customer support personnel.
4.4 In an area where NTT America does not have a POP
and/or a sales and support team, Verio shall provide the local
customer support but only after being requested to do so in writing by
NTT America, subject to NTT America and Verio having developed a
mutually agreeable local customer support mechanism and work flow
process, which mechanism and
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process NTT America and Verio shall work together to develop.
4.5 Verio shall contact customers of a member of the NTT
America Group only at the request of a member of the NTT America
Group, unless the Parties mutually agree otherwise.
4.6 NTT America shall be responsible for all costs
associated with setting up and maintaining the customer care/technical
support center developed for the sole purpose of supporting the NTT
America customer base, including direct payment and reimbursement of
all expenses associated with the same, including without limitation
salaries and pro-rata facilities expenses as agreed upon by the
relevant Working Group.
5. TRAINING
Verio shall provide comprehensive training to employees of
members of the NTT America Group on Verio's services, the underlying
internetworking technologies, and relevant Internet-related protocols
in conjunction with Verio's standard customary training programs.
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ATTACHMENT B
SERVICE LEVEL COMMITMENTS
SERVICE LEVELS.
Verio and NTT America shall create a Working Group in accordance with Section
6.2 of the Agreement to identify appropriate technical measurements of Verio's
provisioning of Resell Services to NTT America's customers, including service
outages, which measurements shall be set forth in this Attachment B by the
mutual agreement of the Parties.
SERVICE LEVEL FAILURES.
The Working Group shall address outages and down time. Subject to the
provisions of the last sentence of this paragraph, the Parties acknowledge that
it is appropriate for Verio to provide members of the NTT America Group with an
outage credit with respect to down time incurred by their customers as a result
of any failure of Verio's network in an amount equal to the outage credit which
a member of the NTT America Group is required to provide to its customers as a
result of the same. The Working Group shall evaluate and agree upon the
appropriate outage measurements for the determination of such outage credit.
The outage credit to be offered to NTT America Group member customers, when
mutually agreed upon by the Parties, shall be reimbursed by Verio to the extent
paid by members of the NTT America Group to their respective customers.
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ATTACHMENT C
MARKETING PLAN
1. BRANDING
NTT America shall have the right to market the Resell Services under a
brand name to be determined by NTT America.
2. MARKETING MATERIALS
Verio and NTT America will coordinate the development and production
of marketing materials. The Parties shall combine their efforts and resources
and share costs with respect to product advertising, technical pre-sales
support, and other promotional activities, provided any such cooperative
efforts shall be subject to mutual agreement by the Parties.
3. SALES AND PROMOTION / SALES PROCESSES
3.1 Sales Force. NTT America shall maintain a sales force that
shall serve as the single contact point for all NTT America customers.
3.2 Promotion. NTT America shall be solely responsible for
promoting the sale of the Resell Services in the United States to NTT America's
customers; provided, however, that the foregoing shall not be construed to
limit Verio's ability to sell its services to third parties including NTT
America customers. Verio shall provide NTT America with technical information,
marketing assistance, technical sales support and marketing tools as shall be
determined by the relevant Working Group in order to market the Resell
Services.
3.3 Account Representative. Verio shall assign to an NTT America
designated account representative such support responsibilities as shall be
determined by the relevant Working Group. Such account representative will
assist NTT America and NTT America customers throughout the term of this
Agreement.
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29
THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
ATTACHMENT D
VERIO'S PRICING SCHEDULE
Verio shall extend to members of the NTT America Group [ *** ]
certain indicated discounts off of Verio's local, regional, and national prices
(to the extent such pricing structures have been developed by Verio) but the
prices charged to members of the NTT America Group [ *** ] shall be [ *** ]
[ *** ]. In
the event that Verio has no other strategic partners, Verio shall extend to
members of the NTT America Group [ *** ].
SERVICE NON-RECURRING PORTION MONTHLY RECURRING
a. Resell Services [***] [***]
b. [ *** ] [ *** ] [ *** ]
c. Equipment [ *** ] [***]
d. Consulting [***] [ *** ]
e. [ *** ] [ *** ] [ *** ]
[ *** ]
f. [ *** ] [ *** ] [ *** ]
[ *** ]
Members of the NTT America Group, in their sole discretion, may supply their own
equipment for the above services.
----------
(1) [ *** ]
(2) [ *** ]
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THE INFORMATION BELOW MARKED (***) HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
Each Party shall provide consulting services to the other Party at the standard
hourly rate agreed to herein or based on a Custom Quote by either Party.
Legend
The terms used above shall have the following meanings:
National List Price: Prices for services that apply on a nationwide
basis, when available.
Custom Quote: The actual price for the service to be developed on a
case by case basis.
ICB: Individual case basis, which price is to be determined by Verio
based on a [ *** ].
RBOC Tariff: Prices which are established and published per Regional
▇▇▇▇ Operating Companies (RBOC) for a tariffed service, such as T1.
Standard Hourly Rate: The rate charged by Verio to its other resellers.
- ▇▇ -
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇ AMERICA AFFILIATES
1. ▇▇▇▇.▇▇▇, inc.
2. [OTHERS TO BE ADDED BY NTT AMERICA PURSUANT TO SECTION 1.22 ABOVE]
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ATTACHMENT F
FIREWALL POLICY
The Parties agree that Verio and members of the NTT America Group will maintain
and abide by a formal Firewall Policy, which may be amended from time to time by
mutual agreement and as to which each Party will also develop more detailed
compliance rules, procedures, and methodologies. Each Party shall ensure that
each of their relevant employees is given a copy of this Policy and of any
amendment hereto and also a current copy of that Party's more detailed rules,
procedures, and methodologies. Such employees shall periodically certify in
writing that they have read this Policy and these materials and agree to abide
thereby. Each Party shall select an employee responsible for overseeing the
implementation of the Policy and for responding to questions from employees
regarding the Policy.
Under this Policy, each Party will erect and maintain "firewalls" at their
respective companies to ensure that if one Party's nonpublic, confidential, and
proprietary business information, particularly information relating to that
Party's specific customers and customer contracts or bids and its prices,
pricing plans and policies, and retail selling activities, is disclosed to the
other Party, that information will not be disclosed to any persons at the other
Party who are responsible for developing that other Party's own customer
contracts or bids, prices, pricing plans and policies, and retail selling
activities.
For example, if Verio performs billing services for NTT America, only the
persons at Verio with the need to have access to that NTT America customer
billing information in order to perform the billing service function for NTT
America shall have access to that information and that NTT America information
shall not be disclosed to other persons at Verio who price and sell Verio's
services to customers. A comparable approach shall obtain if, for example, one
Party performs maintenance, trouble ticketing, or technical assistance for the
other Party and necessarily will have access to that other Party's confidential
business information in order to perform the service.
Additionally, when the Parties jointly develop and produce general or brand
marketing and promotional materials, they shall ensure that that cooperative
effort does not involve the exchange of one or both Parties' nonpublic,
confidential, and proprietary information relating to specific customers,
customer contracts or bids, prices, pricing plans and policies, or retail
selling activities.
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