Exhibit 10.17
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
AGREEMENT NUMBER: _____________________
[UUNET LOGO]
A WORLDCOM COMPANY
INTERNET SERVICE AGREEMENT(1)
This Internet Service Agreement ("Agreement") is made by and between iPass, Inc.
("Customer"), whose principal place of business is at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and UUNET Technologies, Inc., a Delaware corporation
("UUNET"), as of the date of Customers signature below ("Effective Date").
1. DEFINITIONS.
1.1 "Affiliate" shall mean an entity controlled by, controlling,
or under common control with a party.
1.2 "Customer Equipment" shall mean hardware, software, equipment,
systems, cabling and facilities provided by Customer to a
UUNET provisioning Entity and used (alone or in conjunction
with Service Equipment) in connection with a Service, all
rights to which shall remain with Customer.
1.3 "Network" shall mean those points of presence, network hubs,
and host computers owned or operated by UUNET or a UUNET
Provisioning Entity.
1.4 "Service" shall mean the service identified on a Service Order
and any related Service Equipment, support or consulting
provided hereunder.
1.5 "Service Effective Date" in relation to a particular Service
shall have the meaning set forth in the relevant Service
Order.
1.6 "Service Equipment" shall mean the hardware, software,
equipment, systems, cabling, and facilities provided by a
UUNET Provisioning Entity to Customer for use in connection
with a Service, all rights to which shall remain with UUNET.
Service Equipment shall not include the Network or any item
that is the subject of a separate contract between a UUNET
Provisioning Entity and Customer.
1.7 "Service Order" shall mean a document describing a Service to
be provided by a UUNET Provisioning Entity.
1.8 "Service Term" shall mean in relation to a particular Service
the term set forth in the relevant Service Order, such term to
commence upon the Service Effective Date.
1.9 "UUNET Provisioning Entity" shall mean the entity providing a
Service to Customer or its Affiliates, and may include UUNET,
any UUNET Affiliate, or a subcontractor.
2. UUNET RESPONSIBILITIES. To order a Service, Customer or its Affiliate
may sign a Service Order and submit it to UUNET's designated point of
contact. The signed Service Order shall constitute the binding
commitment of Customer to purchase the Service described in the Service
Order on the terms set forth in this Agreement and the applicable
Service Order. In the event of any inconsistency between a Service
Order and this Agreement, the Service Order shall take precedence.
Unless expressly stated otherwise in a Service Order, activation of a
particular Service shah constitute UUNET's acceptance of the relevant
Service Order. UUNET reserves the right to modify any Service from time
to time; provided that Customer may terminate a Service without penalty
in the thirty (30) days following implementation of any change to a
Service that has a material adverse affect on the functionality of that
Service if UUNET fails to correct the adverse effect in the 10 days
following Customers written notification to UUNET of such effect. UUNET
Provisioning Entities may perform some or all of UUNET's duties and/or
obligations hereunder. UUNET will remain responsible for such duties
and obligations and any breach by any UUNET Provisioning Entity of its
obligations shall be deemed a breach by UUNET. UUNET reserves the right
to reject any Service Order submitted hereunder for any business or
technical reason, including without limitation due to UUNET's
obligations under applicable laws, regulations, directives,
governmental authority or orders, or third party contacts. Customer
agrees that this Agreement between Customer and UUNET shall not
constitute a solicitation by UUNET of any Customer Affiliate.
3. CUSTOMER RESPONSIBILITIES. Customer will provide the applicable UUNET
Provisioning Entity with such access to Customer Equipment and such
technical and administrative assistance as the applicable UUNET
Provisioning Entity reasonably requires for the installation and
maintenance of any Service and the performance of UUNET's obligations
hereunder. Customer shall (a) maintain the Service Equipment in
accordance with the reasonable instructions of the applicable UUNET
Provisioning Entity as may be given from time to time; (b) not modify,
relocate, or in any way interfere with the Service Equipment and (c)
not cause the service Equipment to be repaired, serviced, or otherwise
accessed except by an authorized representative of the applicable UUNET
Provisioning Entity. Customer shall be liable for any and all damage to
Service Equipment (excluding normal wear and tear) caused by the
negligence or willful misconduct of Customer, or Customer's material
breach of the terms of this Agreement or the malfunction or failure of
any Customer Equipment. Any Customer Affiliate submitting a Service
Order hereunder shall be bound by Customer's obligations and
responsibilities set forth in this Agreement.
4. The full effectiveness of each Service provided by a UUNET Provisioning
Entity will be contingent upon the completion of technical testing to
the mutual and reasonable satisfaction of both parties during the
thirty-day period after the Service Effective Date. If either party
shall reasonably declare the testing results to be unsatisfactory at
the conclusion of such thirty-day period, the parties shall have
another five days to correct the problem. If such correction is not
completed by the end of such five-day period to the mutual and
reasonable satisfaction of the parties, either party may terminate the
applicable Service Order with no further liability to either party.
Unless written notice of technical deficiencies is provided during the
foregoing testing or correction periods, acceptance of technical
testing shall be presumed, and the applicable Service Order shall
remain in effect.
5. LIMITED WARRANTY. UUNET warrants that (a) each Service will conform in
all material respects to the service levels and specifications set
forth In the applicable Service Order, (b) it owns or has sufficient
right and license to sell each Service to Customer hereunder and that
the use, sale, offer for sale and importation of any such Service, or
the distribution of such Service, does not infringe upon or
misappropriate the intellectual property rights or other proprietary
rights of any third party; (c) all services shall be performed in a
professional and workmanlike manner in accordance with the generally
accepted practices and professional standards used by internationally
recognized organizations performing services similar to the Services;
and (d) all Services shall be performed in strict compliance with any
and all applicable federal, state or commonwealth, county, and local,
including those of any foreign country, laws and ordinances and all
lawful orders, decrees, rules, regulations, codes and other
requirements issued thereunder in its performance of obligations under
this Agreement. Customer's sole and exclusive remedy for any failure to
comply with this Section shall be to terminate the non-complying
Service upon thirty (30) days prior
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(1) For Customers resident in Quebec, France and other francophone
Jurisdictions: Customer and UUNET have expressly requested that the Agreement
and all documents and notices be drafted in the English language. Le client et
UUNET ont demande expressement que la presente entente et tous les document et
avis connexes soient rediges on anglais.
1.
written notice to UUNET. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY,
UUNET MAKES NO WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO ANY SERVICE
AND UUNET EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
6. CONTENT DISCLAIMER. UUNET exercises no control over and accepts no
responsibility for the content of the information passing through the
Network, Service Equipment or a Service. UUNET specifically denies any
responsibility for the accuracy or quality of information obtained
through to Network Service Equipment, or a Service. Use of any
information obtained via the Network, Service Equipment, or a Service
is at Customers own risk.
7. ACCEPTABLE USE. The Network, Service Equipment and any Service shall be
used only for lawful purposes. For its convenience, Customer may
maintain its own authorized use policy, applicable to its end users,
which shall be substantially similar to the then-current UUNET
Acceptable Use Policy ("Policy"); provided that use of the Network,
Service Equipment, or any Service must comply with the Policy for the
country in which the applicable UUNET Provisioning Entity is located
(and in the event no Policy exists for that country, the ▇.▇. ▇▇▇▇▇▇
shall apply). The applicable Policy shall be available at to following
URL: ▇▇▇.▇▇.▇▇▇/▇▇▇▇▇. Customer acknowledges that prior to using a
Service it will obtain, read and understand the applicable Policy.
UUNET reserves it's right to change the Policy from time to time,
effective upon posting of the revised Policy at the URL or other notice
to Customer. UUNET reserves the right to suspend the Service or
terminate this Agreement effective upon five (5) business days written
notice for a violation of the Policy if such violation is not cured
within such five (5) day period, provided that any and all Services may
be suspended without notice (a) in response to a court or government
demand, or (b) if UUNET determines the integrity or normal operation of
the Network is in imminent risk. Immediately upon receiving notice or
otherwise learning of a violation of the Policy, Customer shall, in
full and complete cooperation with UUNET, take all necessary steps to
remedy such violation and shall implement preventive measures to
preclude future violations. Customer agrees to indemnify and hold
harmless UUNET and any applicable UUNET Provisioning Entity from any
losses, damages, costs or expenses resulting from any third party claim
or allegation Claim arising out of or relating to use of the Network,
Service Equipment or a Service, including any Claim which, if true,
would constitute a violation of the Policy, provided that each party
shall promptly notify each other of any such Claim.
8. FEES. Customer shall pay the fees for each Service as specified in each
Service Order. UUNET reserves the right to charge the price to be
charged for a Service upon at least 60 days' written notice given not
earlier than 90 days prior to completion of such Service Term. In the
event of a price increase, Customer shall have the right to terminate a
Service Order without penalty or early termination fees, provided
Customer provides written notice to UUNET within 60 days of receiving
UUNET's notice of a price increase.
9. PAYMENT. Charges and fees for each Service and the currency in which
payment should be made shall be set forth in each Service Order.
Start-up Charges shall be invoiced upon UUNET's acceptance of the
Service Order. Billing of Monthly Fees for a Service will commence as
of the Service Effective Date. Monthly Fees shall be invoiced monthly
in advance unless provided otherwise in the Service Order. Usage-based
fees shall be invoiced monthly in arrears unless provided otherwise in
the Service Order. Invoices shall be sent to Customer or the Customer
Affiliate signing the Service Order. Customer shall be responsible for
the obligations of each of its Affiliates under this Agreement and each
Service Order. Payment is due thirty (30) days after the date of
accurate invoice. Undisputed amounts unpaid thirty (30) days after date
of accurate invoice are subject to an interest charge on the
outstanding balance equal to this lesser of 1% per month (12% per
annum) or the maximum rate permitted by law. It undisputed amounts
remain unpaid 60 days after the date of invoice, Services may be
suspended or this Agreement may be terminated.
10. TAXES. All prices for Services provided hereunder are exclusive of
taxes. Customer agrees to pay any taxes which UUNET or the UUNET
Provisioning Entity are required to collect or pay in connection with
any Service provided under this Agreement, including VAT, sales tax, or
similar government imposed charges, but excluding taxes on the net
income or gross receipts of UUNET and the applicable UUNET Provisioning
Entity. Any such taxes owed by Customer will be itemized on UUNET
invoices, and paid in accordance with Section 9 (Payment).
11. TERM. The term of this Agreement will commence upon the Effective Date
and will terminate upon expiration of the last Service Term under any
Service Order. If Customer terminates a Service prior to completion of
the Service Term set forth in the applicable Service Order for any
reason other than UUNET breach. Customer shall pay UUNET a termination
charge (which Customer hereby acknowledges as liquidated damages
reflecting a reasonable measure of actual damages and not a penalty)
equal to 25% of the fees that would have been paid by Customer to UUNET
had the Service been provided for the duration of the Service Term
(based on the Minimum Revenue Commitments set forth in Exhibit B or the
applicable service order form), in addition to the termination charges
(if any) incurred in connection with cancellation of the telephone
company circuits or services provided in connection with the Service.
Either party may terminate a particular Service upon at least 60 days'
written notice given not earlier than 60 days prior to completion of
the relevant Service Term. UUNET reserves the right to change the price
to be charged for a Service, upon at least 60 days' written notice
given not earlier than 90 days prior to completion of such Service
Term.
12. EFFECTS OF TERMINATION; SURVIVAL. Upon termination or expiration of
this Agreement, all licenses granted hereunder will immediately
terminate. When this Agreement expires or is terminated, the provisions
of Sections 1 (Definitions), 5 (Limited Warranty), 12 (Effects of
Termination), 13 (Limitation of Damages), 14 (Confidentiality), 22
(Governing Law), and 23 (Entire Agreement) will survive and continue to
bind the parties.
13. LIMITATION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, INTERRUPTION OF BUSINESS,
LOST PROFITS, OR LOST DATA) OR ANY INDIRECT, SPECIAL, PUNITIVE, OR
INCIDENTAL DAMAGES OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS (A) OF DAMAGES TO
PROPERTY, (B) BASED ON GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (C)
FOR PAYMENT FOR SERVICES UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ALL
CLAIMS (WHETHER IN CONTRACT, TORT, STATUTE, OR OTHERWISE) EXCEED THE
LESSER OF US$50,000 OR THE AMOUNTS PAID TO UUNET FOR THE SERVICE GIVING
RISE TO A CLAIM IN THE TWELVE MONTHS PRECEDING THE DATE OF SUCH CLAIM.
14. CONFIDENTIALITY. The existence and terms of this Agreement shall be
held confidential by each party, as shall each party's confidential or
proprietary information ("Confidential Information"). Confidential
Information shall mean all information (in whatever format) designated
as such by either party including without limitation the Licensed
Software, the existence and terms of this Agreement, the prices set
forth in any Service Order, any non-public data provided to Customer or
Customer Affiliates regarding performance of the Network, Service
Equipment, or Service and information which relates to the business,
affairs, customers, products, developments, trade secrets, know-how and
personnel of either party and any information which may reasonably
regarded as confidential information. The prices set forth in any
Service Order and any non-public data provided to, Customer or Customer
Affiliates regarding performance of the Network, Service Equipment or
Service shall be deemed UUNET Confidential Information. Neither party
shall disclose the other party's Confidential Information to third
parties without the other party's written consent except as permitted
pursuant to this Section. Customer's Information that is not generally
available to third parties without restriction, including the content
of Customer's non-public email traffic, operations procedures, and
technical information, shall be deemed Customer's Confidential
Information; provided that the foregoing shall not be construed as
preventing UUNET from transmitting Information to
2.
Customer-designated recipients, other Internet service providers, and
other similarly situated parties in the normal course of UUNET's
provision of services pursuant to this Agreement. The foregoing shall
not be construed as a guarantee by UUNET that Customers Confidential
Information shall be free from interference or interception by third
parties during transmission over the Internet. Confidential Information
shall not include any information that (a) was previously known to the
receiving party free of any obligation to keep it confidential; (b) is
or becomes publicly available by means other than unauthorized
disclosure; (c) is developed by or on behalf of the receiving party
independent of any Confidential Information furnished under this
Agreement or (d) is received from a third party whose disclosure does
not violate any confidentiality obligation. Each party shall
disseminate the other party's Confidential Information only to its
Affiliates, employees, representatives, subcontractors, and advisors
agreeing to be bound by the requirements of this Section, and only on a
need-to-know basis. Each party shall use such Confidential Information
only for the purpose of performing its obligations hereunder. To the
extent a party is required by applicable law, regulation, government
agency or court order, subpoena, discovery request, or investigative
demand to disclose the existence or terms of this Agreement or the
other party's Confidential Information, such party shall use its
reasonable efforts to minimize such disclosure, to obtain an assurance
that the recipient shall accord confidential treatment to such
Confidential Information, and (to the extent permitted by applicable
law) to notify the other party contemporaneously of such disclosure.
This Section shall survive for 2 years after any termination or
expiration of this Agreement, unless a longer period is required by
applicable law. The receiving party will return to the disclosing party
or destroy all Confidential Information of the disclosing party in the
receiving party's possession or control and permanently erase all
current electronic copies of such Confidential Information promptly
upon the written request of the disclosing party or the expiration or
termination of this Agreement, whichever comes first. At the disclosing
party's request the receiving party will certify in writing signed by
an officer of the receiving party that it has fully complied with its
obligations under this Section.
15. NO PUBLICITY. Neither party may use the other party's name, trademarks,
tradenames, or other proprietary identifying symbols, or issue any
press release or public statement relating to this Agreement or the
other party, without the prior written permission of an authorized
representative of the other party.
16. DATA PROTECTION.
16.1 By entering into this Agreement Customer acknowledges that
information regarding Customer, its employees, customers, or
any user of the Services or Network provided to or otherwise
obtained by UUNET in connection with this Agreement ("Data")
may be processed by: (i) UUNET, UUNET Provisioning Entities,
and UUNET agents both within and outside Europe and outside
the country(ies) where Data are obtained in connection with
processing Customer's order, and the delivery, installation,
support, and maintenance of the Services; (ii) UUNET and UUNET
Affiliates to incorporate Data into global database(s) of all
UUNET and UUNET Affiliate customer information, accessible
from any part of the world via web technology (or such other
appropriate technology) to assist UUNET and UUNET Affiliates
in providing better or complementary or ancillary products and
services to UUNET and its affiliates' customers.
16.2 Customer represents that it has obtained informed and express
consent to the processing of Data as set forth herein from its
employees, customers, and any users of the Services or
Network. Customer acknowledges that as between Customer and
UUNET, Customer is responsible for obtaining any such required
consents.
16.3 Customer represents and warrants that to the extent Data are
processed by Customer on behalf of UUNET, Customer shall (i)
comply with the provisions of applicable data protection law,
(ii) have in place adequate technical and organizational
security measures to ensure the confidentiality of such Data
and such processing, and (iii) act only in accordance with the
Service procedures or written instructions of UUNET. In the
event of any breach of this Section 13.3, UUNET's sole and
exclusive remedy under this Agreement shall be to require the
suspension of such Data processing activities and to suspend
the provision of any Service to which such Data relates.
17. DOMAIN NAMES AND INTERNET PROTOCOL NUMBERS. Customer warrants that any
domain name registered or administered on its behalf will not violate
the trademark or other intellectual property rights of any third party
and that Customer will comply with the rules and procedures of the
applicable domain name registries, registrars, or other authorities.
Customer irrevocably waives any claims against UUNET and the applicable
UUNET Provisioning Entity that may arise from the acts or omissions of
domain name registries, registrars or other authorities. Any Internet
Protocol numbers ("IP Numbers") assigned to Customer by a UUNET
Provisioning Entity in connection with a Service shall be used only in
connection with that Service. In the event Customer discontinues use of
a Service for any reason, or this Agreement expires or is terminated
for any reason. Customer's right to use the IP Numbers shall terminate
and the IP Numbers shall immediately be returned to UUNET. UUNET
reserves the right to suspend the applicable Service or terminate this
Agreement upon written notice for any violation of this Section.
18. EXPORT. Customer acknowledges that the export, import, and use of
certain hardware, software, and technical data provided hereunder is
regulated by the United States and other governments and agrees to
comply with all applicable laws and regulations, including the U.S.
Export Administration Act, the regulations implemented thereunder by
the U.S. Department of Commerce, and any other applicable laws or
regulations. Customer represents and warrants that Customer is not
subject to any government order suspending, revoking or denying export
or import privileges.
19. ASSIGNMENT. This Agreement may not be assigned by either party without
the prior written consent of the other party, which shall not be
unreasonably conditioned, delayed, or withheld; except that either
party may assign any and all of its rights and obligations hereunder
pursuant to any sale or transfer of all or substantially all the assets
of the assigning party, or pursuant to any financing, merger, or
reorganization of the assigning party, and UUNET may assign this
Agreement at any time to a UUNET Affiliate upon written notice to
Customer. Any attempt by either party to assign or transfer any of its
rights or obligations under this Agreement in violation of this
provision shall be null and void. All terms and conditions of this
Agreement are binding on any of the successors or assigns of the
Parties.
20. FORCE MAJEURE. Neither party shall be liable for any delay or failure
in performance due to reasons of Force Majeure, which shall include
acts of God, earthquake, fire, riots, war, epidemics, changes in law or
regulation, action by government or other competent authority, or other
causes that are beyond its reasonable control. If a Force Majeure event
continues for a period exceeding 10 business days, Customer may
terminate this Agreement without payment of early termination charges
upon seven (7) days prior written notice to UUNET delivered within 12
business days of the commencement of the Force Majeure event.
21. SEVERABILITY; SURVIVAL; WAIVER. If any term of this Agreement, or the
application of such term to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
term to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby. The parties agree that in such
circumstances the parties shall agree in good faith to replace the
invalidated term with a similar term that reflects to the maximum
extent possible the meaning of the invalidated term. All provisions of
this Agreement that, by their nature, should survive the termination or
expiration of this Agreement shall survive the termination or
expiration of this Agreement. No failure on the part of either party to
exercise, and no delay in exercising, any right or remedy hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise of any right or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right or remedy granted
herein.
3.
22. GOVERNING LAW AND DISPUTE RESOLUTION. The formation, execution,
validity, and interpretation of this Agreement shall be governed by the
laws of the State of New York, excluding its conflict of laws
principles.
23. ENTIRE AGREEMENT. This Agreement including each Service Order accepted
by UUNET, sets forth the entire and exclusive agreement between the
parties, superseding all prior or contemporaneous representations,
agreements or understandings concerning the subject matter addressed
herein.
iPass
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Customer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Customer Authorized Signature
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Printed Name
V.P. Operations
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Title
4/25/01
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Date
For and on behalf of The Public IP Exchange Ltd (UUNET)
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name
Country Director
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Title
21-05-01
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Date
4.
SECOND AMENDED & RESTATED
SERVICE ORDER FORM
VIP DIAL SERVICE
BACKGROUND
This Second Amended and Restated Service Order Form, VIP Dial Service ("A&R
SOF") replaces the first Amended and Restated Service Order Form, VIP Dial
Service dated May 24, 2002 between iPass Inc., a Delaware corporation with
offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer"), and UUNET
Technologies, Inc., a Delaware corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("UUNET").
UUNET and Customer are parties to an agreement for dial-up Internet access
service documented by an Internet Service Agreement dated April 25, 2001 (the
"ISA"), which states the general terms and conditions applying to the ISA, and
the Amended and Restated Services Order Form VIP Dial Service dated May 24,
2002.
This A&R SOF consists of three parts. Part I sets out the terms that apply to
dial-up access service over both regular and toll-free telephone numbers. Part
II sets out the terms that apply only to the service provided over regular
(i.e., not toll-free) telephone numbers. Part III sets out the terms that apply
only to service provided over the toll-free telephone numbers.
This A&R SOF does not assume the first Amended and Restated Service Order Form
VIP Dial Service or ISA, as the term "assumption" is used under federal
bankruptcy laws and codes.
AGREEMENT
This A&R SOF is submitted pursuant to the Internet Services Agreement dated
April 25, 2001, also referred to herein as the "ISA"), sets forth the terms and
conditions for the provision of wholesale dial-up service by UUNET, a WorldCom
company whose services are allocated to the MCI operating unit of WorldCom,
Inc., specifically as MCI Internet Wholesale to Customer. Words and phrases
defined in that Internet Services Agreement have the same meaning in this
Amended and Restated Service Order. This Amendment is effective when signed by
both parties and on that date, it replaces and terminates the 5/24/02 Amended
and Restated Service Order Form.
PART I
GENERAL TERMS FOR VIP SERVICE
1. APPLICATION OF PART I TERMS. The terms in this Part I apply to all VIP
Service provided by UUNET to Customer under this Amendment.
2. DESCRIPTION OF SERVICE. Under this Service Order, Customer will
purchase and resell services for the interconnection of Customer's
employees and customers ("End Users") with the Internet ("VIP
Service"). UUNET's relationship under this ISA and Amendment is solely
with Customer and not with any End Users. Customer is responsible for
all End User pricing, RADIUS authentication, technical support, billing
and collections. UUNET will provide Customer's designated points of
contact with a telephone number for 24x7x365 technical support for the
VIP Service. Support is provided in the English language only and may
involve a long distance telephone call charge that will be borne by
Customer. UUNET also will provide Customer with a direct number and
e-mail address at the UUNET Network Operations Center ("NOC") in the UK
to report problems relating to network integrity and performance. All
UUNET telephone numbers, e-mail addresses and other contact information
provided to Customer are to be used only by Customer and may not be
released to End Users. Customer will provide UUNET with access to its
personnel on a 24x7x365 basis as necessary for problem resolution. In
addition, UUNET will provide Customer with a
1.
username and password to access the following URL
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇,▇▇.▇▇▇/▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇
("Customer Web Partition"). The Customer Web Partition will give
Customer access to information such as daily usage reports, Tier I and
Tier 2 POP lists, online trouble ticketing, and contact information for
the UUNET account team assigned to Customer. No e-mail or news feeds
are provided under this Amendment.
3. TECHNICAL REQUIREMENTS. For the duration of this Amendment, Customer
will maintain dedicated Internet connectivity service to UUNET,
purchased from UUNET, of at least T1 bandwidth to be used exclusively
for RADIUS authentication of End Users. Customer will provide, maintain
and operate the RADIUS server in a secure environment and following
appropriate practices to ensure that the Server is available for and
accurately performs End User authentication, as required by Customer.
In particular, Customer will equip and operate the RADIUS server with
software protocols that are fully compatible with UUNET's network
facilities. UUNET represents that any change in the software protocols
required of Customer will apply generally to customers using the same
network facilities and not solely to Customer. Customer also will use
appropriate software, procedures and safeguards to ensure that only
accurate routing information is transmitted from Customer's RADIUS
server to UUNET network facilities, and will remedy immediately any
problems resulting in transmission of incorrect routing information
where Customer is made aware or ought in all the circumstances to be
aware of such problems. In addition, Customer agrees to assign each End
User a unique identifier (e.g., an identification number) for billing
purposes, the structure of which must be approved by UUNET.
4. FORECASTS. Customer recognizes UUNET's reliance upon the reasonable
accuracy of usage forecasts for network expansion and engineering.
During the first week of each third calendar month during the Service
Term Customer will provide UUNET with its best forecast of users and
hours for the next six months. Customer also will provide UUNET with
advance notice (as soon as it is available) of any expected increase to
the future load on any UUNET network facility, particularly with
respect to expected loads in particular geographical locations and
POPS.
5. TERM. The term of this Amendment ends July 31, 2004 ("Service Term").
At the completion of the Service Term, it will automatically be
extended each month for an additional month, unless either party has
delivered to the other a written notice of termination with at least 60
days advance notice.
6. USE OF LOGO. Customer may request to use the "Powered by MCI" logo (or
whatever other logo is established by UUNET for similar purposes)
solely to identify UUNET as the source of the VIP Service in connection
with Customers sales and marketing activities to End Users. UUNET may
grant Customers request at its sole discretion. Customer's use of any
such logo will be in strict compliance with the instructions or
guidelines provided by UUNET. Customer's right to use that logo may be
revoked by UUNET at any time. Customer's breach of this Section is a
material breach of this Amendment constituting cause for termination.
7. RELATIONSHIP OF PARTIES. No agency, partnership, joint venture or
employment is created because of the ISA and Amendment. Neither party
is authorized to bind the other in any respect whatsoever.
8. INTERNET PROTOCOL NUMBERS. An Internet Protocol number ("IP Number") is
assigned by UUNET Internet Wholesale to each End User using the VIP
Service, for use by that End User only, to connect to the Internet
during that dial-up session only, no other use of an IP Number is
permitted. Neither the Customer nor the End User has any other interest
in or right to the IP Numbers. UUNET may terminate an End User's use of
an IP Number, at its sole discretion, at any time.
9. END USER TERMS AND CONDITIONS. For its convenience Customer may
maintain its own authorized use policy, applicable to all end users of
the Service ("End Users"), which shall be substantially similar to the
then current UUNET Acceptable Use Policy ("Policy"); provided
2.
that use of the Network, Service Equipment, or any Service must comply
with the Policy for the country in which the applicable UUNET
Provisioning Entity is located (and in the event no Policy exists for
that country, the ▇.▇. ▇▇▇▇▇▇ shall apply). Customer shall act
immediately to remedy any violation of the Policy. UUNET reserves the
right in the event of any violation of the Policy, or where UUNET
reasonably believes a violation of the policy is imminent, to suspend
the Services to Customer. In such case, UUNET shall immediately notify
Customer of such suspension and provide Customer an opportunity to
investigate and report upon such violation. If Customer is unable to
remedy such violation, or threat of violation, to UUNET's reasonable
satisfaction, UUNET may terminate the Amendment. Customer shall not be
responsible for any Minimum Annual Fee that may become due subsequent
to termination of the Amendment pursuant to this Section 9.
10. INVOICING. Within 30 days of the end of each calendar month, UUNET
shall invoice customer for services used during the preceding month.
The parties agree to enter into good faith discussions to establish,
when commercially reasonable, the goal of billing the customer from
each individual country where services was provided. Customer is not
responsible for payment on any invoice that has not been submitted to
Customer within 90 days of the end of any calendar month. Where billing
has not migrated to in-country local currency, charges will be
converted to and invoiced in U.S. dollars, using the currency
calculator at: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇.
11. BILLING DISPUTE. If Customer reasonably disputes an invoiced amount
Customer may withhold such amount from Customers payment or submit a
claim to UUNET if (i) Customer provides to UUNET, within thirty (30)
days after the date of invoice, written notice of the dispute, of the
disputed amounts and of the reason for such dispute; and (ii) Customer
pays all invoiced amounts not subject to such dispute by the due date.
Customer may submit customer's own accounting records to support
Customers dispute. The parties will cause authorized representatives to
meet within fifteen (15) days after Customers notice of dispute to
negotiate in good faith to resolve the dispute. If such representatives
have not resolved the dispute within five (5) days after their first
meeting, the parties will cause their authorized senior-management
level executives to meet within fifteen (15) days to negotiate in good
faith to resolve the dispute. If such senior-management level
executives have not resolved the dispute within ten (10) days after
their first meeting, the parties will either decide mutually to
continue negotiations or, if either party does not desire to continue
negotiations, each party may exercise its available remedies with
respect to the disputed amounts. To the extent that a dispute
resolution requires payment of disputed amounts, Customer shall pay
such disputed amounts promptly after the dispute is resolved. For
purposes of clarification, the pre-session time associated with each
toll-free call (i.e., the time spent attempting to connect) is billable
to Customer and may not form the basis of any billing dispute.
PART II
REGULAR DIAL ACCESS SERVICE TERMS AND PRICING
12. APPLICATION OF PART II TERMS. The terms in this Part II apply to all
VIP Service provided by UUNET to Customer in the countries indicated in
Table 1 below except for VIP Service provided via Toll-Free POPs as
defined in Part III below.
3.
13. PRICING.
13.1 Hourly Rates. Customer will be charged monthly for each hour or
part thereof of Standard Usage (defined below) as indicated in Table I
below, based on (a) the country in which the relevant point of presence
("POP") used relates and (b) the total number of hours of Usage under
this Part II in that country in that month. "Standard Usage" means the
total amount of time that End Users are successfully connected to the
Internet via UUNET-provided POPS (other than Toll-Free POPs) for the
countries in Table 1 below. UUNET's data and records (including, at
UUNET's discretion, data it receives from its suppliers) shall be the
basis for all Standard Usage calculations as well as the determination
of the country to which any POP (and its related telephone numbers)
relates. To the extent that pricing is not provided below, UUNET's list
prices apply. In locations where UUNET offers two-channel connectivity,
one hour of use on two channels will be billed as two hours of use. All
charges are cumulative.
TABLE 1:
RATE PER HOUR IN US DOLLARS
BASED ON HOURS OF USAGE IN MONTH
------------------------------------------------------------------------------------------
Country 0-10,000 10,000-50,000 50,000-100,000 Revenue Share
------------------------------------------------------------------------------------------
Austria [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Belgium [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Denmark [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Finland [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
France [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Germany [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Ireland [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Italy [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Luxembourg [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Netherlands [ * ] [ * ] [ * ] [ * ]%
------------------------------------------------------------------------------------------
Norway [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Spain [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Sweden [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
Switzerland [ * ] [ * ] [ * ] -
------------------------------------------------------------------------------------------
United Kingdom [ * ] [ * ] [ * ] [ * ]%
------------------------------------------------------------------------------------------
TABLE 2
INTERCONNECTION REVENUE RATES BASED ON TIME-OF-DAY OF USAGE
UK
------------------------------------------------------------------------------------------------------
INTERCONNECT REVENUE PER MINUTE (L) STARTING
DIAL PERIOD (GMT) DECEMBER 1, 2001
------------------------------------------------------------------------------------------------------
Peak Time (Monday to Friday 08:00 to 18:00) [ * ]
------------------------------------------------------------------------------------------------------
Off-Peak (Monday to Friday, 00:00
to 08:00, and 18:00 to 24:00) [ * ]
------------------------------------------------------------------------------------------------------
Weekends (Saturday, Sunday, 00:00 to 24:00) [ * ]
------------------------------------------------------------------------------------------------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
4.
Netherlands
-------------------------------------------------------------------------------------------------------
Call set-up Euros Conveyance
-------------------------------------------------------------------------------------------------------
Sat., Sun &
Sat., Sun Peak Off-peak Eve.
Peak Off-Peak Eve. Euro/min. Euro/min. Euro/min.
-------------------------------------------------------------------------------------------------------
BIBA- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ]
-------------------------------------------------------------------------------------------------------
For purposes of this Part II, "Interconnect Revenues" means that
portion of the call charges which UUNET receives from time to time
pursuant to its then current interconnect arrangements in respect of
the VIP Service provided by it to the Customer in the UK and
Netherlands under this Part II. Customer acknowledges and agrees that
these figures are subject always to the provisions of the ISA and
Amendment in general, and termination and payment provisions in
particular. For the avoidance of doubt, Customer acknowledges and
agrees that this Amendment, Part II has been entered into upon the
basis of the current interconnection arrangements as determined by the
Director General of Telecommunications and under the current UK,
Netherlands and European legislation relating to the same as of the
date of execution of this Amendment. In the event that following a
determination of the UK or Netherlands Office of Telecommunication by
the Director General thereof or a change in such regulation or
legislation there is a change in the UK interconnection arrangements
which affect the financial interconnection for UUNET or other third
parties involved whether directly or indirectly in the supply of the
telecommunications service hereunder or there is a determination by
ICSTIS or any other regulatory authority which affects the financial
arrangement under this Amendment (including but not limited to the
premium rate numbers), then UUNET reserves the right, in its sole
discretion to review any payment obligation hereunder In relation to
VIP Service in the UK and Netherlands, accordance with the terms and
conditions governing this Amendment (including the ISA). In addition,
in the event that Customer defaults on paying any of the fees set out
herein in relation to the VIP Service in the UK or Netherlands, UUNET
reserves the right to set off any of the fees owed against any fees
that may otherwise have been payable in respect of the Interconnect
Revenues in the UK and Netherlands. The pricing for the UK and
Netherlands in this Section 13 is subject to change in that UUNET
reserves the right to review and adjust the pricing in the event of
changes to the published Interconnect Revenues as stated In this
Section 13.2.
13.2 Currency. Pricing of the hourly Usage rate in Section 13.1 above
is in U.S. dollars. The rates for Interconnect Revenues in Table 1
above are in UK pounds for UK share and Euros for Netherlands share.
Customer's UUNET sales representative may provide a price quotation in
another currency upon request.
13.3 New Countries. It is agreed that the parties may agree to extend
the provision of the VIP Service and the pricing structure set out in
this Section 13 for the UK in substantially similar form in respect of
any other countries in the EMEA region not included in this Amendment.
PART III
TOLL-FREE DIAL ACCESS SERVICE TERMS AND PRICING
14. APPLICATION OF PART III TERMS. The terms in this Part III apply to all
VIP Service provided by UUNET to Customer in the countries indicated in
Table 3 below via POPs accessed through telephone numbers that are
toll-free to End Users in the relevant country ("Toll-Free POPs").
Service to the United Kingdom excludes the Channel Islands and the Isle
of ▇▇▇▇.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
5.
"Toll-Free Usage" means the total amount of time that End Users are
successfully connected or attempting to be connected to the Internet
via UUNET-provided Toll-Free POPs and the exchange equipment of any
third party telecommunications services provider for the countries in
Table 3 below. UUNET's data and records (including, at UUNET's
discretion, data UUNET receives from its suppliers) shall be the basis
for all Toll-Free Usage calculations as well as determining the country
and time zone to which any Toll-Free POP (and related telephone
numbers) relates. To the extent that pricing is not provided below,
UUNET's list prices apply. In locations where UUNET offers two-channel
connectivity, one hour of use on two channels will be billed as two
hours of use. All charges are cumulative.
Customer acknowledges and agrees that the prices stated in this Part
III are subject to variation and UUNET may vary any charges payable
under this Part III on ninety days notice to the Customer. In the event
that Customer does not agree with any such alteration, Customer's sole
remedy is to terminate the VIP Service provided under this Part Ill
upon ninety days prior written notice to UUNET. In the event of such
termination, customer is not responsible for any early termination
penalties or Minimum Annual Fees.
TABLE 3
RATE PER MINUTE IN LOCAL CURRENCY (AS NOTED)
----------------------------------------------------
Country All time
----------------------------------------------------
France E [ * ]/min.
----------------------------------------------------
Italy E [ * ]/min.
----------------------------------------------------
Belgium E [ * ]/min.
----------------------------------------------------
Netherlands E [ * ]/min.
----------------------------------------------------
Germany E [ * ]/min.
----------------------------------------------------
Switzerland CHF [ * ]/min.
----------------------------------------------------
Finland E [ * ]/min.
----------------------------------------------------
UK
----------------------------------------------------
0-49,999 hours L [ * ]/min.
----------------------------------------------------
50,000-74,999 hours L [ * ]/min.
----------------------------------------------------
75,000 + hours L [ * ]/min.
----------------------------------------------------
15. SUPPORT. The Toll-Free VIP Service will support the following modem and
ISDN access standards: V34, V90, ISDN V120, and ISDN synchronous PPP.
The UUNET network access servers ("NAS") will support the following: VJ
Compression, V42bis Compression, NAS assignment of full Internet
compliant IP addresses to End Users from a UUNET pool of registered IP
addresses, and NAS assignment of Primary and Secondary Domain Name
Servers. In light of the advances in technology, UUNET reserves the
right to alter, vary and replace all of the preceding standards and
methods as and when, at its sole discretion, UUNET determines. UUNET
shall notify the Customer as and when such variation takes place, if
UUNET deems it necessary to do so. If any variation or replacement as
set forth herein has an adverse impact upon Customers service, Customer
and UUNET shall mutually agree upon an appropriate reduction in
Customer Minimum Annual Fee. For purposes of this Section 17, an
"adverse impact" means any change to the preceding standards and
methods which reduces Customer's ability to use the Toll-Free VIP
Services by more than ten percent (10%) based upon the average actual;
Usage of Customer's End Users (i.e., the access methods they used) in
the three full months prior to such change. Average Monthly Latency of
no more than 85 milliseconds (ms) roundtrip within UUNET's European
backbone. The latency number above represents the average network
latency seen on UUNET's network during the course of a month. The
calculation of latency is made using data collected via the Network
Time Protocol (NTP). The latency statistics are gathered by routers
located in a number of key backbone hubs geographically dispersed
throughout Europe. All measurement routers gather the latency
statistics hourly each day, and a daily average latency value is
derived from the hourly samples.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
6.
THIS AMENDMENT TO THE SOF DOES NOT ASSUME THE SOF OR ISA, AS THE TERM
"ASSUMPTION" IS USED UNDER FEDERAL BANKRUPTCY LAWS AND CODES.
IN WITNESS WHEREOF, the parties have signed this Service Order as of the date of
the second signature, below.
iPASS, INC. UUNET TECHNOLOGIES, INC.
(Customer) (MCI Internet Wholesale)
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇
---------------------------------- -------------------------------
Customer Authorized Signature MCI Internet Wholesale
Authorized
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇
---------------------------------- -------------------------------
Printed Name Printed Name
Vice President, Operations VP
---------------------------------- -------------------------------
Title Title
1/27/03 1/31/03
---------------------------------- -------------------------------
Date Date
7.
