<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2000
REGISTRATION NO. 333-34976
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
WEBSIDESTORY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7389 33-0727173
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
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10182 TELESIS COURT, 6TH FLOOR
SAN DIEGO, CA 92121
(858) 546-0040
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
TERANCE A. KINNINGER
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
WEBSIDESTORY, INC.
10182 TELESIS COURT, 6TH FLOOR
SAN DIEGO, CA 92121
(858) 546-0040
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
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CAMERON JAY RAINS, ESQ. BRUCE R. HALLETT, ESQ.
JEFFREY T. BAGLIO, ESQ. SCOTT R. SANTAGATA, ESQ.
JOHN J. GILLULY III, ESQ. KANDY L. WILLIAMS, ESQ.
DECEMBER GREENE, ESQ. AMY J. HANSEN, ESQ.
GRAY CARY WARE & FREIDENRICH LLP BROBECK, PHLEGER & HARRISON LLP
4365 EXECUTIVE DRIVE, SUITE 1600 38 TECHNOLOGY
SAN DIEGO, CA 92121-2189 IRVINE, CA 92618
(858) 677-1400 (949) 790-6300
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
TITLE OF SECURITIES PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE(3)
<S> <C> <C>
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Common Stock ($0.001 par value).......................... $57,500,000 $15,180
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</TABLE>
(1) Includes shares that the Underwriters will have the option to purchase
solely to cover over-allotments, if any.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(o) promulgated under the Securities Act.
(3) Represents amount paid on initial filing.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to Registration Statement No.
333-34976, is:
- to provide estimates of Other Expenses of Issuance and Distribution found
in Item 13 of Part II of the Registration Statement;
- to file Exhibits 10.5, 10.6, 10.7, 10.8, 10.22, 10.23, 10.25 and 10.30
and to reflect their filing in Item 16(a) of Part II of the Registration
Statement and in the Exhibit Index; and
- to replace Exhibit 10.16 with the corrected Exhibit.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses payable by the registrant in
connection with the sale of the common stock being registered. All of the
amounts shown are estimates except for the SEC registration fee, the NASD filing
fee, and the Nasdaq National Market application fee.]
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<CAPTION>
AMOUNT TO
BE PAID
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<S> <C>
SEC Registration fee..................................... $ 15,180
NASD filing fee.......................................... 6,250
Nasdaq stock market listing application fee.............. 95,000
Blue sky qualification fees and expenses................. 5,000
Director and officer liability insurance................. 600,000
Printing and engraving expenses.......................... 200,000
Legal fees and expenses.................................. 350,000
Accounting fees and expenses............................. 320,000
Transfer agent and registrar fees........................ 70,000
Miscellaneous............................................ 138,570
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Total.................................................. $1,800,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Section 145 of the Delaware General Corporation Law, the registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act").
The registrant's Certificate of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the registrant to indemnify its directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to, the best interests of the corporation and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The registrant believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate the directors' duty of care, and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware Law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the registrant or its stockholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the registrant or its stockholders, for improper
transactions between the director and the registrant and for improper
distributions to stockholders and loans to directors and officers. The provision
also does not affect a director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
II-1
<PAGE> 4
The registrant has entered into indemnity agreements with each of its
directors and executive officers that require the registrant to indemnify such
persons against all expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a director or an
executive officer of the registrant or any of its affiliated enterprises,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the registrant as to which indemnification is being
sought nor is the registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The registrant maintains directors' and officers' liability insurance and
intends to continue to maintain this insurance in the future. The registrant
also has an insurance policy covering the officers and directors of the
registrant with respect to certain liabilities, including liabilities arising
under the Securities Act or otherwise.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following is a summary of transactions by the Company since the
Company's inception in September 1996 that were not registered under the
Securities Act. Prior to the reincorporation in Delaware in , 2000,
it had been operating under the laws of California.
(a) In September 1996, the registrant issued 30,303,030 shares of common
stock to its founders for an aggregate purchase price of $5,500.
(b) In June of 1999, the registrant issued an aggregate of 15,034,712
shares of its convertible redeemable preferred stock and 100 shares of
its redeemable preferred stock to TA Associates, Inc. and Summit
Partners LP in exchange for 2,088,154 shares of the registrant's common
stock, which they had purchased from two of the founders and Michael
Christian and $5 million in cash.
(c) In December 1999, the registrant issued an option to purchase 1,324,655
shares of its common stock at an exercise price of $1.05 per share to
John Hentrich. Mr. Hentrich exercised his option in February 2000.
(d) In December 1999, the registrant issued a warrant to purchase 529,861
shares of its common stock at an exercise price of $0.21 per share to
John Hentrich. Mr. Hentrich exercised his warrant in February 2000.
(e) In January 2000, the registrant issued 33,333 shares of its common
stock to Michael Christian on the exercise of a stock option for an
aggregate purchase price of $1,300.
(f) In March 2000, the registrant issued a warrant to purchase 13,333
shares of our common stock at an exercise price of $15 per share to
Imperial Bank.
(g) From September 1996 (inception) to March 31, 2000, the registrant
granted options to purchase an aggregate of 2,923,017 shares of common
stock to directors, executive officers, employees and consultants
pursuant to its option plans including options to purchase 250,167
shares at an exercise price of $6.00, options to purchase 133,167
shares at an exercise price of $6.60, options to purchase 2,009,821
shares at an exercise price of $1.05 and shares at an exercise
price of $ . In addition, in February 1998, the registrant issued
options to purchase an aggregate of 875,758 shares of common stock to
Michael Christian, one of its key employees. Mr. Christian exercised
his option to purchase 104,245 shares of common stock in July 1999 and
33,333 shares of common stock in January 2000.
II-2
<PAGE> 5
The sale and issuance of the securities in the above transactions were
exempt from registration under the Securities Act by virtue of Rule 4(2) or Rule
701, or Regulation D, as transactions not involving a public offering. There
were no underwriters used in connection with any of the transactions set forth
in this Item 15. For additional information concerning these equity investment
transactions, see the section entitled "Certain Transactions" in the prospectus.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS.
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1.1* Form of Underwriting Agreement.
3.1.1** Amended and Restated Articles of Incorporation.
3.1.2** Certificate of Amendment of Amended and Restated Articles of
Incorporation.
3.1.3* Form of Certificate of Incorporation of WebSideStory, Inc.,
to be filed immediately prior to and to become effective
upon closing of this offering.
3.2.1** Amended and Restated Bylaws of WebSideStory, Inc.
3.2.2* Form of By-laws of WebSideStory, Inc. to be in effect after
the closing of this offering.
4.1** Reference is made to Exhibits 3.1.1, 3.1.2, 3.2.1 and 3.2.2
for provisions of the charter documents defining the rights
of securityholders.
4.2* Specimen common stock certificate.
5.1* Opinion of Gray Cary Ware & Freidenrich LLP.
10.1** 1998 Stock Option Plan, as amended.
10.1.1** Form of Nonstatutory Stock Option Agreement under the 1998
Stock Option Plan.
10.1.2** Form of Incentive Stock Option Agreement under the 1998
Stock Option Plan.
10.2** 1999 Stock Option Plan, as amended.
10.2.1** Form of Nonstatutory Stock Option Agreement under the 1999
Stock Option Plan.
10.2.2** Form of Incentive Stock Option Agreement under the 1999
Stock Option Plan.
10.3** 2000 Equity Incentive Plan, as amended.
10.3.1** Form of Omnibus Stock Option Agreement under the 2000 Equity
Incentive Plan.
10.4* Form of 2000 Employee Stock Purchase Plan.
10.4.1* Form of Subscription Agreement under the 2000 Employee Stock
Purchase Plan.
10.5+ Agreement, dated March 25, 1999, by and between the
registrant and Level (3) Communications and addendum to
Terms and Conditions.
10.6+ Agreement, dated May 29, 1998, by and between the registrant
and Digex Business Internet.
10.7+ Agreement, dated February 5, 1999, by and between the
registrant and Sprint Communications
10.8+ Agreement, dated May 1, 1997, by and between the registrant
and Verio, Inc. (formerly ATMNet, Inc.)
10.9** Akamai FreeFlow Services Order Form, dated March 20, 2000
between the registrant and Akamai Technologies, Inc.
10.10** Employment Agreement, dated June 24, 1999, by and between
the registrant and Blaise P. Barrelet.
10.11** Employment Agreement, dated June 24, 1999, by and between
the registrant and Agnes L. Barrelet.
10.12** Noncompetition Agreement, dated June 24, 1999, by and
between the registrant and Blaise P. Barrelet.
10.13** Noncompetition Agreement, dated June 24, 1999, by and
between the registrant and Agnes L. Barrelet.
10.14** Employment Agreement, dated February 28, 2000, by and
between the registrant and John J. Hentrich, as amended on
April 15, 2000.
10.15** Proprietary Information and Inventions Agreement, dated
November 19, 1999, by and between the registrant and John J.
Hentrich.
10.16 Stock Option Agreement, dated December 20, 1999, by and
between the registrant and John J. Hentrich.
</TABLE>
II-3
<PAGE> 6
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10.17** Promissory Note, dated January 3, 2000, by John J. Hentrich
in favor of the registrant.
10.18** Promissory Note, dated February 28, 2000, by John J.
Hentrich in favor of the registrant.
10.19** Secured, Non-Recourse Promissory Note, dated March 23, 2000,
by John J. Hentrich in favor of the registrant.
10.20** Stock Pledge Agreement, dated March 23, 2000, by John J.
Hentrich in favor of the registrant.
10.21** Employment Agreement, dated April 10, 2000, by and between
the registrant and Terance Kinninger.
10.22 Employment Agreement, dated April 7, 2000 by and between the
registrant and Meyar Sheik.
10.23 Employment Agreement, dated February 25, 2000, by and
between the registrant and Thomas Stigler.
10.24* Incentive Stock Option Agreement, dated February 28, 2000,
between the registrant and Thomas Stigler.
10.25 Employment Agreement, dated April 25, 2000, by and between
the registrant and Randall K. Broberg.
10.26* Employment Agreement, dated June 24, 1999, between the
registrant and Michael Christian.
10.27* Noncompetition Agreement, dated June 24, 1999, between the
registrant and Michael Christian.
10.28* Nonstatutory Stock Option Agreement, dated ,
between the registrant and Michael C. Christian.
10.29* Incentive Stock Option Agreement, dated April 10, 2000,
between the registrant and Meyar Sheik.
10.30 Incentive Stock Option Agreement, dated April 10, 2000,
between the registrant and Randall K. Broberg.
10.31** Office lease, dated November 4, 1998, by and between the
registrant and PS Business Parks, Inc. and an amendment
thereto dated February 14, 2000.
10.32** Office lease, dated August 23, 1999, by and between the
registrant and LNR Seaview, Inc.
10.33** Credit Agreement, dated August 4, 1999, by and between the
registrant and Imperial Bank.
10.33.1** Intellectual Property Security Agreement, by and between the
registrant and Imperial Bank.
10.34** Credit Agreement, dated March 27, 2000, by and between the
registrant and Imperial Bank.
10.35** Stockholders Agreement, dated June 18, 1999, by and among
the registrant, and certain investors set forth on Exhibit A
to the Agreement.
10.36** Registration Rights Agreement, dated June 18, 1999, by and
among the registrant and certain of its stockholders.
10.37** WebsideStory, Inc. 401(k) Plan.
10.38** Form of Indemnification Agreement as currently in effect
between the registrant and each of its directors, officers
and certain additional personnel.
10.39** Form of Indemnity Agreement to be entered into by the
registrant and each of its directors, officers and certain
additional personnel following the reincorporation of the
registrant.
10.40** Warrant to Purchase Common Stock, dated March 27, 2000, in
favor of Imperial Bank.
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2* Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1.
24.1** Power of Attorney. Reference is made to page II-6.
27** Financial Data Schedule.
</TABLE>
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* To be filed by amendment.
** Filed previously with the Registration Statement on Form S-1 (File No.
333-34976).
+ Confidential treatment has been requested with respect to certain portions of
this exhibit. Omitted portions have been filed separately with the Securities
and Exchange Commission.
II-4
<PAGE> 7
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 of this registration
statement, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment no. 1 to the registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of San
Diego, State of California, on May 2, 2000.
WebsideStory, Inc.
By: /s/ JOHN J. HENTRICH
------------------------------------
John J. Hentrich
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John J. Hentrich and Terance A.
Kinninger, and each of them, as his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments, exhibits thereto and other
documents in connection therewith) to this Registration Statement and any
subsequent registration statement filed by the registrant pursuant to Rule
462(b) of the Securities Act of 1933, as amended, which relates to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ JOHN J. HENTRICH President and Chief Executive Officer, May 2, 2000
- --------------------------------------------- Director
John J. Hentrich
/s/ BLAISE P. BARRELET Chairman of the Board, Chief Internet May 2, 2000
- --------------------------------------------- Architect and Director
Blaise P. Barrelet
/s/ TERANCE A. KINNINGER Senior Vice President and Chief May 2, 2000
- --------------------------------------------- Financial Officer (Principal Financial
Terance A. Kinninger Officer)
/s/ JOHN T. BURKE Corporate Controller (Principal May 2, 2000
- --------------------------------------------- Accounting Officer)
John T. Burke
/s/ KURT R. JAGGERS Director May 2, 2000
- ---------------------------------------------
Kurt R. Jaggers
</TABLE>
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SIGNATURE TITLE DATE
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/s/ WALTER G. KORTSCHAK Director May 2, 2000
- ---------------------------------------------
Walter G. Kortschak
/s/ BENJAMIN H. BALL Director May 2, 2000
- ---------------------------------------------
Benjamin H. Ball
</TABLE>
II-7
<PAGE> 10
EXHIBIT INDEX
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<S> <C>
1.1* Form of Underwriting Agreement.
3.1.1** Amended and Restated Articles of Incorporation.
3.1.2** Certificate of Amendment of Amended and Restated Articles of
Incorporation.
3.1.3* Form of Certificate of Incorporation of WebSideStory, Inc.,
to be filed immediately prior to and to become effective
upon closing of this offering.
3.2.1** Amended and Restated Bylaws of WebSideStory, Inc.
3.2.2* Form of By-laws of WebSideStory, Inc. to be in effect after
the closing of this offering.
4.1** Reference is made to Exhibits 3.1.1, 3.1.2, 3.2.1 and 3.2.2
for provisions of the charter documents defining the rights
of securityholders.
4.2* Specimen common stock certificate.
5.1* Opinion of Gray Cary Ware & Freidenrich LLP.
10.1** 1998 Stock Option Plan, as amended.
10.1.1** Form of Nonstatutory Stock Option Agreement under the 1998
Stock Option Plan.
10.1.2** Form of Incentive Stock Option Agreement under the 1998
Stock Option Plan.
10.2** 1999 Stock Option Plan, as amended.
10.2.1** Form of Nonstatutory Stock Option Agreement under the 1999
Stock Option Plan.
10.2.2** Form of Incentive Stock Option Agreement under the 1999
Stock Option Plan.
10.3** 2000 Equity Incentive Plan, as amended.
10.3.1** Form of Omnibus Stock Option Agreement under the 2000 Equity
Incentive Plan.
10.4* Form of 2000 Employee Stock Purchase Plan.
10.4.1* Form of Subscription Agreement under the 2000 Employee Stock
Purchase Plan.
10.5+ Agreement, dated March 25, 1999, by and between the
registrant and Level (3) Communications and addendum to
Terms and Conditions.
10.6+ Agreement, dated May 29, 1998, by and between the registrant
and Digex Business Internet.
10.7+ Agreement, dated February 5, 1999, by and between the
registrant and Sprint Communications
10.8+ Agreement, dated May 1, 1997, by and between the registrant
and Verio, Inc. (formerly ATMNet, Inc.)
10.9** Akamai FreeFlow Services Order Form, dated March 20, 2000
between the registrant and Akamai Technologies, Inc.
10.10** Employment Agreement, dated June 24, 1999, by and between
the registrant and Blaise P. Barrelet.
10.11** Employment Agreement, dated June 24, 1999, by and between
the registrant and Agnes L. Barrelet.
10.12** Noncompetition Agreement, dated June 24, 1999, by and
between the registrant and Blaise P. Barrelet.
10.13** Noncompetition Agreement, dated June 24, 1999, by and
between the registrant and Agnes L. Barrelet.
10.14** Employment Agreement, dated February 28, 2000, by and
between the registrant and John J. Hentrich, as amended on
April 15, 2000.
10.15** Proprietary Information and Inventions Agreement, dated
November 19, 1999, by and between the registrant and John J.
Hentrich.
10.16 Stock Option Agreement, dated December 20, 1999, by and
between the registrant and John J. Hentrich.
10.17** Promissory Note, dated January 3, 2000, by John J. Hentrich
in favor of the registrant.
10.18** Promissory Note, dated February 28, 2000, by John J.
Hentrich in favor of the registrant.
10.19** Secured, Non-Recourse Promissory Note, dated March 23, 2000,
by John J. Hentrich in favor of the registrant.
10.20** Stock Pledge Agreement, dated March 23, 2000, by John J.
Hentrich in favor of the registrant.
</TABLE>
<PAGE> 11
<TABLE>
<S> <C>
10.21** Employment Agreement, dated April 10, 2000, by and between
the registrant and Terance Kinninger.
10.22 Employment Agreement, dated April 7, 2000, by and between
the registrant and Meyar Sheik.
10.23 Employment Agreement, dated February 25, 2000, by and
between the registrant and Thomas Stigler.
10.24* Incentive Stock Option Agreement, dated February 28, 2000,
between the registrant and Thomas Stigler.
10.25 Employment Agreement, dated April 25, 2000, by and between
the registrant and Randall K. Broberg.
10.26* Employment Agreement, dated June 24, 1999, between the
registrant and Michael Christian.
10.27* Noncompetition Agreement, dated June 24, 1999, between the
registrant and Michael Christian.
10.28* Nonstatutory Stock Option Agreement, dated ,
between the registrant and Michael C. Christian.
10.29* Incentive Stock Option Agreement, dated April 10, 2000,
between the registrant and Meyar Sheik.
10.30 Incentive Stock Option Agreement, dated April 10, 2000,
between the registrant and Randall K. Broberg.
10.31** Office lease, dated November 4, 1998, by and between the
registrant and PS Business Parks, Inc. and an amendment
thereto dated February 14, 2000.
10.32** Office lease, dated August 23, 1999, by and between the
registrant and LNR Seaview, Inc.
10.33** Credit Agreement, dated August 4, 1999, by and between the
registrant and Imperial Bank.
10.33.1** Intellectual Property Security Agreement, by and between the
registrant and Imperial Bank.
10.34** Credit Agreement, dated March 27, 2000, by and between the
registrant and Imperial Bank.
10.35** Stockholders Agreement, dated June 18, 1999, by and among
the registrant, and certain investors set forth on Exhibit A
to the Agreement.
10.36** Registration Rights Agreement, dated June 18, 1999, by and
among the registrant and certain of its stockholders.
10.37** WebsideStory, Inc. 401(k) Plan.
10.38** Form of Indemnification Agreement as currently in effect
between the registrant and each of its directors, officers
and certain additional personnel.
10.39** Form of Indemnity Agreement to be entered into by the
registrant and each of its directors, officers and certain
additional personnel following the reincorporation of the
registrant.
10.40** Warrant to Purchase Common Stock, dated March 27, 2000, in
favor of Imperial Bank.
23.1** Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2* Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1.
24.1** Power of Attorney. Reference is made to page II-6.
27** Financial Data Schedule.
</TABLE>
- ------------
* To be filed by amendment.
** Filed previously with the Registration Statement on Form S-1 (File No.
333-34976).
+ Confidential treatment has been requested with respect to certain portions of
this exhibit. Omitted portions have been filed separately with the Securities
and Exchange Commission.
<PAGE> 1
* Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
EXHIBIT 10.5
[LEVEL(3) LOGO]
THIS PROPOSAL WAS PREPARED FOR: WEB SIDE STORY
<TABLE>
<CAPTION>
TERM ITEM SERVICE DESCRIPTION INSTALL MONTHLY MONTHLY AFTER 9/99
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1 year 25 Mb Burstable Internet Access to 45Mb *** $ *** $ *** ***
DS3 Loop Metro Access for DS3 to SAN Gateway *** $ *** $ ***
1 year DS3 Loop Metro Access from WSS to Sprint to Gateway *** $ *** $ ***
--------------------------------------
Totals *** $ *** $ ***
</TABLE>
CUSTOMER APPROVAL OF CUSTOMER ORDER FORM MARCH 24, 1999
This Customer Order Form is submitted in accordance with the Service Order
executed by Customer.
Customer acknowledges and agrees with Level 3's Standard Terms and Conditions.
Relevant Service Detail forms are attached hereto setting forth specific
information respecting the Services and Products ordered by Customer.
Customer shall receive 1 free month of Internet Access for each year of term,
falling on the first month.
=====
Material Failure:
Customer agrees to provide prompt written notice to Level3 of any material
failure by Level3 to provide Products and Services as set forth in the
Agreement.
If Level3 fails to cure the material failure within a reasonable time, Customer
may terminate the affected Products and Services on 30 days' written notice to
Level3.
A material failure by Level3 will not include a failure by the local exchange
carrier, Customer Premise Equipment, Customer or any other failure caused by
circumstances outside the sole control of Level3.
=====
SLA:
Unavailability Event Duration - Up to On Hour = 1 hr credit
Unavailability Event Duration > 60Min = 1 day credit
Aggregate duration of outages during a 30 day period > 8hrs = 1 week credit
Aggregate duration of outages during a 30 day period > 18hrs = 1 month credit
Customer Acceptance:
/s/ JIM VAN BAALEN /s/ JIM VAN BAALEN
- ------------------------------- -------------------------------
Authorized Customer Signature Typed or Printed Name
3/25/99 Chief Technical Officer
- ------------------------------- -------------------------------
Date Title
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
[LEVEL(3) LOGO]
TERMS AND CONDITIONS
FOR DELIVERY OF SERVICE
These Terms and Conditions for Delivery of Service (the "Terms and Conditions")
shall be applicable to Customer Orders executed by Customer for Services
delivered by Level 3 Communications, LLC ("Level 3"), and shall be incorporated
into each Customer Order. These Terms and Conditions are applicable to sales of
Services originating or terminating in the United States.
DEFINITIONS
CONFIDENTIAL INFORMATION: Licensed Software, and all source code, source
documentation, inventions, know-how, and ideas, updates and any documentation
and information related to the Licensed Software, and any non-public information
regarding the business of a party provided to either party by the other party
where such information is marked or otherwise communicated as being
"proprietary" or "confidential" or the like, or where such information is, by
its nature, confidential.
CUSTOMER: The person, firm or corporation so named on the Customer Order.
CUSTOMER ORDER: A request for Level 3 Service submitted by the Customer in the
format devised by Level 3 and accepted by Level 3.
FIRM ORDER COMMITMENT: A written communication from Level 3 to Customer within
which Level 3 commits to deliver some or all of the Services requested in a
Customer Order.
LICENSED SOFTWARE: Computer software, in object code format only, the use of
which is required for use of Service ordered by Customer hereunder.
PREMISES: The location(s) occupied by Customer or its end users specified in the
Customer Order to (or from) which Service will be delivered.
REVENUE COMMITMENT: A commitment which, if made by Customer in a Customer Order
or in any other form specified and accepted by Level 3, obligates Customer to
order and pay for a minimum volume of Services during an agreed term.
SERVICE: Any communications (or related) service offered by Level 3 pursuant to
a Customer Order.
SECTION 1. CUSTOMER ORDERS
1.1 SUBMISSION OF CUSTOMER ORDERS. Customer may submit to Level 3 Customer Order
forms requesting the provision of Service. Each Customer Order form shall be
submitted on a form designated by Level 3. Level 3 shall confirm the accuracy of
information on the Customer Order form and the availability of the Services
requested. Level 3's delivery of a Firm Order Commitment respecting such
Services shall constitute Level 3's acceptance of the Customer Order for such
Services. The Customer Order form and attachments shall set forth the Service,
the locations for delivery of same, the prices to be charged for same and any
applicable term and/or Revenue Commitment.
1.2 UNDERTAKING OF LEVEL 3. If Level 3 issues a Firm Order Commitment respecting
Services, Level 3 will furnish such Services in accordance with these Terms and
Conditions and any Customer Orders executed by Customer. All title to equipment
or materials used to deliver the Services (except as otherwise expressly agreed)
shall be and remain with Level 3.
SECTION 2. BILLING AND PAYMENT
2.1 PAYMENT AND RENDERING OF BILLS. Level 3 shall bill all charges incurred by
and credits due to Customer on a monthly basis (unless otherwise agreed in
writing by Level 3 and Customer). Level 3 shall bill in advance charges for all
Services to be provided during the ensuing month except for charges which are
dependent upon usage of Service (which charges shall be billed in arrears).
Adjustments for the quantities of Service established or discontinued in any
billing period will be prorated to the number of days based on a 30 day month.
Level 3 will, upon request and if available, furnish such detailed information
as may reasonably be required for verification of the bill.
2.2 PAYMENT OF BILLS. All bills are due upon receipt thereof by Customer, and
become past due thirty (30) days thereafter. The unpaid balance of any past due
bills shall bear interest at a rate of 1.5% per month (prorated on a daily
basis), or the highest rate allowed by law, whichever is less. Interest will be
applied for the number of days from the date the bill became past due to and
including the date that payment is received by Level 3.
2.3 TAXES AND FEES. Except for taxes based on Level 3's net income and except
with respect to ad valorem personal and real property taxes imposed on Level 3's
property, Customer shall be responsible for payment of all sales, use, gross
receipts, excise, access, bypass, franchise or other local, state and federal
taxes, fees, charges, or surcharges, however designated, imposed on or based
upon the provision, sale or use of the Services delivered by Level 3 (including,
but not limited to, taxes and fees lawfully
Page 1 of 17
<PAGE> 3
assessed by nations outside of the United States). Any taxes shall be separately
stated on Customer's bill. Any state or local tax, fee, charge, or surcharge
shall be payable only for Services that are subject to such imposition.
2.4 REGULATORY AND LEGAL CHANGES. In the event of any change in applicable law
or regulation that materially increases the cost of delivery of Service, Level 3
and Customer shall negotiate regarding the rates charged to Customer to reflect
such increase in cost and, in the event that the parties are unable to reach
agreement respecting new rates within thirty (30) days after Level 3's delivery
of written notice requesting renegotiation, then (a) Level 3 may pass such
increased costs through to Customer, and (b) Customer may terminate the affected
Customer Order upon no less than sixty (60) days' prior written notice without
payment of any applicable termination charge
2.5 DISPUTED BILLS. In the event that Customer disputes any portion of the
charges contained in a bill, Customer must pay the undisputed portion of the
invoice in full and submit a documented claim for the disputed amount. All
claims must be submitted to Level 3 within sixty (60) days of receipt of billing
for those Services. If Customer does not submit a claim within such period and
in the manner stated above, Customer waives all rights to dispute such charges.
2.6 CREDIT APPROVAL AND DEPOSITS. Customer shall provide Level 3 with credit
information as requested in advance of the commencement of delivery of Service
under any Customer Order. Delivery of Service is subject to credit approval.
Level 3 may require any Customer to make a deposit as a condition to Level 3's
acceptance of any Customer Order submitted by Customer, or as a condition to
Level 3's continuation of Service under any Customer Order (but only when
Customer's consumption of Service materially exceeds Customer's anticipated use
or when, in Level 3's reasonable discretion, such deposit is required in order
to secure Customer's continued payment obligation), which deposit shall be held
by Level 3 as security for payment of charges. A deposit may not exceed the
actual or estimated rates and charges for the Service for a two (2) month
period. At such time as the provision of Service to Customer is terminated, the
amount of the deposit will be credited to Customer's account and any credit
balance which may remain will be refunded.
2.7 FRAUDULENT USE OF SERVICES. Customer shall be solely responsible for all
charges incurred respecting the Services, even if such charges were incurred
through or as a result of fraudulent or unauthorized use of the Services, unless
Level 3 has actual knowledge of such fraudulent or unauthorized use and fails to
inform Customer thereof or otherwise limit or preclude such use. Nothing in this
Section 2.7, however, shall be construed to obligate Level 3 to detect or report
unauthorized or fraudulent use of Services.
SECTION 3. CANCELLATION OF CUSTOMER ORDERS
3.1 CANCELLATION OF CUSTOMER ORDER BY LEVEL 3.
A. For nonpayment: Level 3 may, upon fourteen (14) days' written notice,
discontinue Service without incurring any liability when there is an unpaid
balance for Service that is past due.
B. For any violation of law or of any of the provisions governing the furnishing
of Service: Any Customer Order shall be subject to cancellation, without notice,
for any violation of any law, rule, regulation or policy of any government
authority having jurisdiction over Service or by reason of any order or decision
of a court or other government authority having jurisdiction which prohibits
Level 3 from furnishing such Service.
C. For other causes: Any Customer Order shall be subject to cancellation, upon
fourteen (14) days' prior written notice, in the event of a breach of a Customer
Order, fraudulent use of the Service, or fraud or misrepresentation in any
submission of information required in a Customer Order or any other information
submitted to Level 3.
D. For any Customer filing of bankruptcy or reorganization or failing to
discharge an involuntary petition therefor within sixty (60) days after filing:
Level 3 may immediately discontinue or suspend delivery of Service without
incurring any liability.
E. For consumption of Services that materially exceeds Customer's credit limit:
Level 3 may, upon fourteen (14) days prior written notice and provided Customer
has not provided additional security for payment which is sufficient in Level
3's reasonable discretion, discontinue or suspend delivery of Service without
incurring any liability.
3.2 Effect of Cancellation. Upon Level 3's discontinuance of Service to Customer
under any of the foregoing subparagraphs, Level 3 may, in addition to all other
remedies that may be available to Level 3 at law or in equity or under any other
provision of a Customer Order, assess and collect from Customer any termination
charge set forth herein (to the extent applicable).
3.3 RESUMPTION OF SERVICE. If Service has been discontinued by Level 3, and
Customer requests that Service be restored, Level 3 shall have the sole and
absolute discretion to restore such Service only after satisfaction of such
conditions as Level 3 determines to be required for its protection. Nonrecurring
charges apply to restoration of Service.
SECTION 4. DELIVERY OF SERVICES
4.1 LEVEL 3 ACCESS TO PREMISES. Customer shall allow Level 3 continuous and
reasonable access to the Premises to the extent reasonably determined by Level 3
to be appropriate to the installation, inspection and maintenance of equipment,
facilities and systems relating to the Service. Level 3 shall notify Customer
two (2) business days in advance of any regularly scheduled maintenance that
will require. access to the Premises.
4.2 LEVEL 3 FACILITIES. Level 3 will use reasonable efforts to maintain the
facilities and equipment required to deliver Service. Customers shall not and
shall not permit others to rearrange, disconnect, remove, attempt to repair, or
Page 2 of 17
<PAGE> 4
otherwise tamper with any of the facilities or equipment installed by Level 3,
except upon the written consent of Level 3. Equipment provided or installed at
the Premises by Level 3 for use in connection with the Service shall not be used
for any purpose other than that for which Level 3 provided it. In the event that
Customer or a third party attempts to operate or maintain any Level 3-owned
equipment without first obtaining Level 3's written approval, in addition to any
other remedies of Level 3 for a breach by Customer of Customer's obligations
hereunder, Customer shall pay Level 3 for any damage to Level 3-owned equipment
caused thereby. Customer shall be responsible for the payment of service charges
in the event that maintenance or inspection of the equipment is required as a
result of Customer's breach of this Section. Level 3 shall, in the event that
such expenses are incurred, deliver to Customer a written invoice therefor. In
no event shall Level 3 be liable to Customer or any other person for
interruption of Service or for any other loss, cost or damage caused or related
to improper use or maintenance of Level 3-owned equipment.
4.3 TITLE AND POWER. Title to all facilities (except as otherwise agreed),
including terminal equipment, shall remain with Level 3. The electric power
consumed by such equipment on the Premises shall be provided by and maintained
at the expense of Customer.
4.4 CUSTOMER-PROVIDED EQUIPMENT. Level 3 shall not be responsible for the
operation or maintenance of any Customer-provided communications equipment.
Level 3 may install certain Customer provided communications equipment upon
installation of Service; unless otherwise agreed by Level 3 in writing, Level 3
shall not thereafter be responsible for the operation or maintenance of such
equipment. Level 3 shall not be responsible for the transmission or reception of
signals by Customer-provided equipment or for the quality of, or defects in,
such transmission.
4.5 REMOVAL OF EQUIPMENT. Customer agrees to allow Level 3 to remove all Level
3-owned equipment from the Premises:
A. after termination, interruption or suspension of the Service in connection
with which the equipment was used; and
B. for repair, replacement or otherwise as Level 3 may determine is necessary or
desirable.
At the time of such removal, such equipment shall be in the same condition as
when delivered to Customer or installed in the Premises, normal wear and tear
only excepted. Customer shall reimburse Level 3 for the depreciated cost of any
equipment which is not in such condition.
4.6 SERVICE SUBJECT TO AVAILABILITY. The furnishing of Service under these Terms
and Conditions is subject to the availability on a continuing basis of all the
necessary facilities and is limited to the capacity of Level 3's facilities, as
well as facilities Level 3 may obtain from other carriers to furnish Service
from time to time as required at the sole discretion of Level 3. Nothing in
these Terms and Conditions shall be construed to obligate Customer to submit, or
Level 3 to accept, Customer Orders.
4.7 NO LIABILITY FOR FAILURE TO TRANSMIT MESSAGES. Level 3 does not undertake to
transmit messages, but offers the use of its Service when available, and, as
more fully set forth elsewhere in these Terms and Conditions and any applicable
Customer Orders, shall not be liable for errors in transmission or for failure
to establish connections.
4.8 SERVICE LEVEL AGREEMENTS. All warranties respecting the Service, and the
remedies applicable to a failure of Level 3 to meet such warranties, shall be
set forth in Service Level Agreements applicable to the particular Service,
which Service Level Agreements (when and if issued by Level 3) shall be deemed
attached hereto and by this reference incorporated herein.
SECTION 5. OBLIGATIONS AND LIABILITY LIMITATION
5.1 OBLIGATIONS OF THE CUSTOMER. Customer shall be responsible for:
A. The payment of all charges applicable to the Service (including charges
incurred as a result of fraud or unauthorized use of the Service).
B. Damage or loss of Level 3's facilities or equipment installed on the Premises
(unless caused by the negligence or willful misconduct of the employees or
agents of Level 3);
C. Providing the level of power, heating and air conditioning necessary to
maintain the proper environment on the Premises for the provision of Service;
D. Providing a safe place to work and complying with all laws and regulations
regarding the working conditions on the Premises;
E. Granting Level 3 or its employees access to the Premise for the purpose of
maintaining Level 3's facilities in accordance herewith;
F. Keeping Level 3's equipment and facilities located on Premises free and clear
of any liens or encumbrances.
5.2 LIABILITY. The liability of Level 3 for damages arising out of the
furnishing of Service, including but not limited to mistakes, omissions,
interruptions, delays, tortious conduct or errors, or other defects,
representations, use of Service or arising out of the failure to furnish
Service, whether caused by acts of commission or omission, shall be limited to
the extension of credit allowances due under any Service Level Agreement. The
extension of such credit allowances or refunds shall be the sole remedy of
Customer and the sole liability of Level 3. Neither party shall be liable for
any indirect, incidental, special, consequential, exemplary or punitive damages
(including but not limited to damages for lost profits or lost revenues),
whether or not caused by the acts or omissions or negligence of its employees or
agents, and regardless of whether such party has been informed of the
possibility or likelihood of such damages.
5.3 DISCLAIMER OF WARRANTIES. LEVEL 3 MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW,
Page 3 of 17
<PAGE> 5
STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN OR IN ANY APPLICABLE
SERVICE LEVEL AGREEMENT.
SECTION 6. SOFTWARE TERMS
6.1 LICENSE. If and to the extent that Customer requires the use of Licensed
Software in order to use the Service supplied under any Customer Order, then
Customer shall have a nonexclusive, nontransferable license to use such Licensed
Software only and solely to the extent required to permit delivery of the
Service. Customer shall in no event be entitled to claim title to or any
ownership interest in any Licensed Software (or any derivations or improvements
thereto), and Customer shall execute any documentation reasonably required by
Level 3 to memorialize Level 3's existing and continued ownership of Licensed
Software.
6.2 RESTRICTIONS. Customer agrees that it shall not:
A. copy the Licensed Software except as allowed and permitted by the express
written consent of Level 3;
B. reverse engineer, decompile or disassemble the Licensed Software;
C. sell, lease, license or sublicense the Licensed Software; or
D. create, write or develop any derivative software or any other software
program based on the Licensed Software or any Confidential Information of Level
3.
SECTION 7. CONFIDENTIAL INFORMATION
7.1 DISCLOSURE AND USE. The Confidential Information disclosed by either party
constitutes the confidential and proprietary information of the disclosing party
and the receiving party shall retain same in strict confidence and not disclose
to any third party (except as authorized by these Terms and Conditions) without
the disclosing party's express written consent. Each party agrees to treat all
Confidential Information of the other in the same manner as it treats its own
proprietary information, but in no case will the degree of care be less than
reasonable care.
7.2 RESTRICTED USE. Each party agrees:
A. to use Confidential Information only for the purposes of performance of any
Customer Order or as otherwise expressly permitted by these Terms and
Conditions;
B. not to make copies of Confidential Information or any part thereof except for
purposes consistent with these Terms and Conditions; and
C. to reproduce and maintain on any copies of any Confidential Information such
proprietary legends or notices (whether of disclosing party or a third party) as
are contained in or on the original or as the disclosing party may otherwise
reasonably request.
7.3 EXCEPTIONS. Notwithstanding the foregoing, each party's confidentiality
obligations hereunder shall not apply to information which:
A. is already known to the receiving party;
B. becomes publicly available without fault of the receiving party;
C. is rightfully obtained by the receiving party from a third party without
restriction as to disclosure, or is approved for release by written
authorization of the disclosing party;
D. is developed independently by the receiving party without use of the
disclosing party's Confidential Information;
E. is required to be disclosed by law.
7.4 REMEDIES. Notwithstanding any other section of these Terms and Conditions,
the non-breaching party shall be entitled to seek equitable relief to protect
its interests, including but not limited to preliminary and permanent injunctive
relief. Nothing stated herein shall be construed to limit any other remedies
available to the parties.
7.5 SURVIVAL. The obligations of confidentiality and limitation of use shall
survive the termination of any applicable Customer Order.
SECTION 8. GENERAL TERMS
8.1 FORCE MAJEURE. Except with respect to payment obligations, neither party
shall be liable, nor shall any credit allowance or other remedy be extended, for
any failure of performance or equipment due to causes beyond such party's
reasonable control, including but not limited to: acts of God, fire, flood or
other catastrophes; any law, order, regulation, direction, action, or request of
any governmental entity or agency, or any civil or military authority; national
emergencies, insurrections, riots, wars; unavailability of rights-of-way or
materials; or strikes, lock-outs, work stoppages, or other labor difficulties.
8.2 ASSIGNMENT OR TRANSFER. Customer may not transfer or assign the use of
Service without the express prior written consent of Level 3, and then only when
such transfer or assignment can be accomplished without interruption of the use
or location of Service. These Terms and Conditions shall apply to all such
permitted transferees or assignees. Customer shall, unless otherwise expressly
agreed by Level 3 in writing, remain liable for the payment of all charges due
under each Customer Order.
8.3 NOTICES. Any notice Level 3 may give to Customer or Customer shall give to
Level 3 shall be deemed properly given when delivered, if delivered in person,
or when sent via facsimile, overnight courier, electronic mail or when deposited
with the U.S. Postal Service, (a) with respect to Customer, the address listed
on each Customer Order, or (b) with respect to Level 3, to: Contracts
Administration, Level 3 Communications, LLC, 1450 Infinite Drive, Louisville, CO
80027. Customer shall notify Level 3 of any changes to its addresses listed on
any Customer Order.
8.4 INDEMNIFICATION BY CUSTOMER. Customer shall indemnify, defend and hold Level
3 harmless from claims,
Page 4 of 17
<PAGE> 6
loss, damage, expense (including attorney's fees and court costs), or liability
(including liability for patent infringement) arising from (1) any claims made
against Level 3 by any end user in connection with the delivery or consumption
of Service, (2) use of facilities furnished by Level 3 in a manner inconsistent
with the terms hereof or in a manner that Level 3 did not contemplate and over
which Level 3 exercises no control and (3) all other claims, loss, damage,
expense (including attorneys fees and court costs), or liability arising out of
any commission or omission by Customer in connection with the Service.
8.5 INDEMNIFICATION BY LEVEL 3. Level 3 shall indemnify, defend and hold
Customer harmless from claims, loss, damage, expense (including attorney's fees
and court costs), or liability (including liability for patent infringement)
arising from all claims, loss, damage, expense (including attorneys fees and
court costs), or liability for property damage or personal injury to the extent
that such claims arise out of or are caused by Level 3's negligence or willful
misconduct.
8.6 APPLICATION OF TARIFFS. Level 3 may elect or be required by law to file with
the appropriate regulatory agency tariffs respecting the delivery of certain
Service. In the event and to the extent that such tariffs have been or are filed
respecting Service ordered by Customer, then (to the extent such provisions are
not inconsistent with the terms of a Customer Order) the terms set forth in the
applicable tariff shall govern Level 3's delivery of, and Customer's consumption
or use of, such Service.
8.7 CONTENTS OF COMMUNICATIONS. Level 3 shall have no liability or
responsibility for the content of any communications transmitted via the Service
by Customer or any other party, and Customer shall hold Level 3 harmless from
any and all claims (including claims by governmental entities seeking to impose
penal sanctions) related to such content.
8.8 ENTIRE UNDERSTANDING. These Terms and Conditions, including any Customer
Orders executed hereunder (and any tariff applicable to the delivery of
Service), constitutes the entire understanding of the parties related to the
subject matter hereof. These Terms and Conditions may be amended by Level 3 at
any time, and Customer agrees to be bound by the amended Terms and Conditions
from and after the effective date of such amendment. In the event of a conflict
between these Terms and Conditions and any Customer Order executed hereunder,
the Customer Order shall control. These Terms and Conditions shall be governed
and construed in accordance with the laws of the state of Colorado.
8.9 NO WAIVER. No failure by either party to enforce any rights hereunder shall
constitute a waiver of such right.
Page 5 of 17
<PAGE> 7
TERMS AND CONDITIONS
PRIVATE LINE SERVICE
The following Terms and Conditions shall be applicable to metropolitan (local),
city to city (within the United States) and international (from the United
States to another country) private line, non-switchable circuits (the "Private
Line Services") ordered by Customer under any Customer Order.
1. Any state or federal tariffs applicable to the Private Line Services to be
delivered under any Customer Order are incorporated into the terms thereof.
2. The nonrecurring charges and monthly recurring rates for the Private Line
Services provided by Level 3 to Customer shall be set forth in each Customer
Order.
3. Customer hereby agrees to pay for the Private Line Services for the period of
time specified in each Customer Order, which period shall commence with the
initiation of delivery of such Services. The rates and other charges set forth
in each Customer Order are established in reliance on the term commitment made
therein. In the event that Customer terminates Services ordered in any Customer
Order or in the event that the delivery of Services terminated due to a failure
of Customer to satisfy the requirements set forth herein or in the Terms and
Conditions prior to the end of the agreed term, Customer shall (unless Customer
has made a Revenue Commitment) pay a termination charge equal to the termination
or other charges paid or to be paid by Level 3 for services purchased from other
sources used to deliver the Private Line Services to Customer, plus the
percentage of the monthly recurring charges for the terminated Private Line
Services calculated as follows:
A. 100% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 1-12 of the agreed term; plus
B. 75% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 13-24 of the agreed term; plus
C. 50% of the monthly recurring charge that would have been incurred for the
Private Line Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Private Line
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges for such
termination, rearrangement or reconfiguration.
Page 6 of 17
<PAGE> 8
Standard Service Level Agreement SLA
Release 1
INTERNATIONAL/NATIONAL PRIVATE LINE
International/National Private Line service will be backed by a Standard Service
Level Agreement that has two components: a Service Delivery SLA and a Network
Performance SLA.
NOTE: The total number of credits per month for both Service Delivery and
Network Performance is limited to four days.
SERVICE DELIVERY SLA
National/international PL Standard Service Delivery Intervals
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
Gateway Cities Only Nx64K, T1, E1* DS3 >DS3
-------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NPLS IPL NPLS IPL NPLS IPL
- -----------------------------------------------------------------------------
On-Net 15 15 30 30 ICB ICB
working working working working
days Days days days
- -----------------------------------------------------------------------------
Off-Net within SSA 20 20 45 60 Ica ICB
(either end) working working working working
days Days days days
- -----------------------------------------------------------------------------
Outside SSA (but <50 30 60 ICB ICB ICB ICB
miles (KM in Europe)) working working
(either end) days Days
- -----------------------------------------------------------------------------
</TABLE>
- - Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
- - Mean Time to Respond - Within 30 minutes
- - 2 hour calendar month Average Time To Repair (MTTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
- - Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of >30 minutes will result in a one day service credit
when the customer notifies Level 3 of the failure.
- - MTTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the MTTR is greater than 2 hours, the
customer will receive a one day service credit.
- - Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
Page 7 of 17
<PAGE> 9
NETWORK PERFORMANCE SLA
- - 99.99% Service Availability
- - Target Bit Error Rate 1
End-to-end link (Level 3 on-net) > 5 x 10(-8) at T1 Rate (equivalent rate
for DSO 1 x10(-6)
End-to-end link (Non-Level 3 access) > 1 x 10-(7) (Dependent on
local supplier)
- - Target Severely Errored Seconds2
End-to-end link (Level 3 fiber access) < 0.008%
End-to-end link (Non-Level 3 access) < 0.013% (Dependent on local
supplier)
- - Availability refers to customer's access point to the Level 3 Backbone
Network, including their Level 3 provided local access circuit.
- - Availability does not include regularly scheduled or emergency maintenance
events, or customer caused outages or disruptions.
- - Customers may report service unavailability events of longer than 15
consecutive minutes to Level 3 customer service within 48 hours of the
event. If the event is confirmed by Level 3 customer service, the customer
will receive a pro-rated service credit that equals the time of the
unavailability.
NOTES:
- - All measurements are based on monthly averages.
- - These guarantees only apply to the Level 3 Network (including the Local
Access to the customer). They do not apply to off-net city circuits which
do not transit the Level 3 Backbone Network (or the portion the circuit
which does not transit the Level 3 Backbone)
- - This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
- - Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization. Customers
must report any Network Performance failures (unavailability or delay)
within 48 hours (two business days) of the service affecting event in order
to receive a credit.
- - Customers must report any Service Delivery failures within five business
days of the event.
- ---------------
1 Bit Error Rate figure excludes periods of more than 10 seconds having error
rates equal to, or worse than 1x10(-3)
2 Severely Errored Seconds have bit error rates equal to, or worse than 1
x10(-3)
Page 8 of 17
<PAGE> 10
TERMS AND CONDITIONS
TELEPHONY COLOCATION
The following Terms and Conditions shall be applicable to Customer's use of
space within Level 3 facilities used for the purpose of colocating
telecommunications equipment (the "Space") ordered by Customer under any
Customer Order.
1. Upon execution and performance of Customer's obligations under a Customer
Order for use of Space, Customer shall be granted the right to occupy the Space
identified therein. Customer may submit multiple Customer Orders requesting use
of different Space, each of which shall be governed by the terms hereof.
2. Customer shall be permitted to use the Space only for placement and
maintenance of communications equipment which shall be interconnected to the
network services offered by Level 3. Customer may use the Space to cross connect
to the facilities of other communications carriers if and only if Level 3 cannot
or will not provide such services to Customer on commercially reasonable terms.
The nonrecurring and monthly recurring charges for the Space and any Services
ordered by Customer shall be set forth in each Customer Order.
3. During the term for use of the Space set forth in each Customer Order,
Customer shall commit to use, order and pay for Level 3 network communications
services (not including monthly recurring fees charged for the use of the Space)
with monthly recurring charges of at least $4,000.00 for each cabinet ($2,000.00
for each half cabinet) of Space ordered by Customer. Customer shall achieve the
minimum service level no later than six (6) months after submission and
acceptance of each Customer Order. Level 3 may terminate use of the Space in the
event that Customer does not satisfy this minimum service commitment.
4. Level 3 shall perform such janitorial services, environmental systems
maintenance, power plant maintenance and other actions as are reasonably
required to maintain the facility in which the Space is located in good
condition which is suitable for the placement of communications equipment.
Customer shall maintain the Space in orderly and safe condition, and shall
return the Space to Level 3 at the conclusion of the term set forth in the
Customer Order in the same condition (reasonable wear and tear excepted) as when
such Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED HEREIN OR IN
ANY CUSTOMER ORDER, THE SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS" BY
CUSTOMER, AND NO REPRESENTATION HAS BEEN MADE BY LEVEL 3 AS TO THE FITNESS OF
THE SPACE FOR CUSTOMER'S INTENDED PURPOSE.
5. The term of use of the Space shall begin on the later to occur of the date
requested by Customer or the date that Level 3 completes the build-out of the
Space. Customer's use of the Space beyond the initial term shall be on a
month-to-month basis, unless Customer and Level 3 have agreed in writing to a
renewal of the right to use such Space.
6. Level 3 shall use reasonable efforts to complete the build-out and make the
Space available to Customer on or before the date requested by Customer. In the
event that Level 3 fails to complete the build-out within sixty (60) days of the
date requested by Customer, then Customer may terminate its rights to use such
Space and receive a refund of any fees paid for the use or build-out of such
Space.
7. Customer shall abide by any posted or otherwise communicated rules relating
to use of, access to, or security measures respecting the Space. In the event
that unauthorized parties gain access to the Space through access cards, keys or
other access devices provided to Customer, Customer shall be responsible for any
damages incurred as a result thereof. Customer shall be responsible for the cost
of replacing any security devices lost or stolen after delivery thereof to
Customer. In addition, Level 3 shall have the right to terminate Customers use
of the Space in the event that: (a) Level 3's rights to use the facility within
which the Space is located terminates or expires for any reason; (b) Customer
has violated the terms hereof or any Customer Order submitted hereunder; (c)
Customer makes any material alterations to the Space without first obtaining the
written consent of Level 3; (d) Customer allows personnel or contractors to
enter the Space who have not been approved by Level 3 in advance; or (e)
Customer violates any posted or otherwise communicated rules relating to use of
or access to the Space. Level 3 shall use reasonable efforts to notify Customer
of any events that may result in termination of the use of the Space.
8. Customer shall pay all monthly recurring fees, crossconnect fees, power
charges and nonrecurring fees specified in each Customer Order for the agreed
term thereof. In the event that Customer terminates a Customer Order for Space
or in the event that the Customer Order is terminated due to a failure of
Customer to satisfy the requirements set forth herein or in the Customer Order
prior to the end of the agreed term, Customer shall pay a termination charge
equal to the costs incurred by Level 3 in returning the Space to a condition
suitable for use by other parties, plus the percentage of the monthly recurring
fees for the terminated Space calculated as follows:
A. 100% of the monthly recurring fees that would
Page 9 of 17
<PAGE> 11
have been charged for the Space for months 1-12 of the agreed term; plus
B. 75% of the monthly recurring fees that would have been charged for the Space
for months 13-24 of the agreed term; plus
C. 50% of the monthly recurring fees that would have been charged for the Space
for months 25 through the end of the agreed term.
9. Level 3 reserves the right to change the location or configuration of the
Space, provided, however, that Level 3 shall not arbitrarily or discriminatorily
require such changes. Level 3 and Customer shall work in good faith to minimize
any disruption in Customer's services that may be caused by such changes in
location or configuration of the Space.
10. Prior to occupancy and during the term of use of any Space, Customer shall
procure and maintain the following minimum insurance coverage: (a) Workers'
Compensation in compliance with all applicable statutes of appropriate
jurisdiction. Employer's Liability with limits of $500,000 each accident; (b)
Commercial General Liability with combined single limits of $1,000,000 each
occurrence; and (c) "All Risk" Property insurance covering all of Customers
personal property located in the Space. Customer's Commercial General Liability
policy shall be endorsed to show Level 3 (and any underlying property owner, as
requested by Level 3) as an additional insured. All policies shall provide that
Customer's insurers waive all rights of subrogation against Level 3. Customer
shall furnish Level 3 with certificates of insurance demonstrating that Customer
has obtained the required insurance coverages prior to occupancy of the Space.
Such certificates shall contain a statement that the insurance coverage shall
not be materially changed or cancelled without at least thirty (30) days' prior
written notice to Level 3. Customer shall require any contractor entering the
Space on its behalf to procure and maintain the same types, amounts and coverage
extensions as required of Customer above.
11. The liability of Level 3 for damages arising out of the furnishing of Space,
including but not limited to mistakes, omissions, interruptions, delays,
tortious conduct or errors, or other defects arising out of the failure to
furnish Space, whether caused by acts of commission or omission, shall be
limited to a prorated refund of the charges paid by Customer for the use of the
Space hereunder. The extension of such refunds shall be the sole remedy of
Customer and the sole liability of Level 3.
Page 10 of 17
<PAGE> 12
TERMS AND CONDITIONS
IP COLOCATION
The following Terms and Conditions shall be applicable to Customer's use of
space within Level 3 facilities used for the purpose of colocating equipment
used for connection to the internet (the "Space") ordered by Customer under any
Customer Order.
1. Upon execution and performance of Customer's obligations under a Customer
Order for use of Space, Customer shall be granted the right to occupy the Space
identified therein. Customer further agrees to purchase certain communications
services ("Services") identified in Customer Orders for such Services submitted
by Customer hereunder. Customer may submit multiple Customer Orders requesting
use of different Space, each of which shall be governed by the terms hereof.
Services ordered by Customer shall at all times be used by Customer in
compliance with Level 3's then-current Acceptable Use Policy and Privacy Policy,
as amended by Level 3 from time to time and which are available through Level
3's web site.
2. Customer shall be permitted to use the Space only for placement and
maintenance of computer and/or communications equipment which shall be
interconnected to the Services provided by Level 3. Customer may use the Space
to cross connect to the facilities of other communications carriers if and only
if Level 3 cannot or will not provide such services to Customer on commercially
reasonable terms. The nonrecurring and monthly recurring charges for the Space
and the Services shall be set forth in each Customer Order.
3. During the term for use of the Space set forth in each Customer Order,
Customer shall commit to use, order and pay for the following amounts of
bandwidth provided by Level 3: (a) for Customers using cabinets, at least 1 Mbps
of bandwidth for each partial cabinet and at least 2 Mbps of bandwidth for each
full cabinet of Space ordered by Customer; and (b) for Customers using private
rooms, at least 1 Mbps of bandwidth for each 10 square feet of Space ordered by
Customer. Customer shall achieve the minimum service level immediately after
submission and acceptance of each Customer Order. Level 3 may terminate use of
the Space in the event that Customer does not satisfy this minimum service
commitment.
4. Level 3 shall perform such janitorial services, environmental systems
maintenance, power plant maintenance and other actions as are reasonably
required to maintain the facility in which the Space is located in good
condition which is suitable for the placement of communications equipment. In
addition, Customer may order and pay for Level 3 to perform certain limited
("remote hands") maintenance services on Customer's equipment within the space,
which shall be performed in accordance with Customer's directions. "Remote
hands" maintenance services includes power cycling equipment. Level 3 shall in
no event be responsible for the repair, configuration or tuning of equipment, or
for installation of Customer's equipment (although Level 3 will provide
reasonable assistance to Customer in such installation). Customer shall maintain
the Space in orderly and safe condition, and shall return the Space to Level 3
at the conclusion of the term set forth in the Customer Order in the same
condition (reasonable wear and tear excepted) as when such Space was delivered
to Customer. EXCEPT AS EXPRESSLY STATED HEREIN OR IN ANY CUSTOMER ORDER, THE
SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS" BY CUSTOMER, AND NO REPRESENTATION
HAS BEEN MADE BY LEVEL 3 AS TO THE FITNESS OF THE SPACE FOR CUSTOMER'S INTENDED
PURPOSE.
5. The term of use of the Space shall begin on the later to occur of the date
requested by Customer or the date that Level 3 completes the build-out of the
Space. Customer's use of the Space beyond the initial term shall be on a
month-to-month basis, unless Customer and Level 3 have agreed in writing to a
renewal of the right to use such Space. Customer hereby agrees to pay for the
Space and Services for the period of time specified in each Customer Order,
which period shall commence when both completion of the build-out of the Space
and initiation of delivery of such Services has occurred. The rates and other
charges set forth in each Customer Order are established in reliance on the term
commitment made therein. In the event that Customer terminates a Customer Order
for Space or in the event that the Customer Order is terminated due to a failure
of Customer to satisfy the requirements set forth herein or in the Customer
Order prior to the end of the agreed term, Customer shall pay a termination
charge equal to the costs incurred by Level 3 in returning the Space to a
condition suitable for use by other parties, plus the percentage of the monthly
recurring fees for the terminated Space calculated as follows:
a. 100% of the monthly recurring fees that would have been charged for the Space
for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring fees that would have been charged for the Space
for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring fees that would have been charged for the Space
for months 25 through the end of the agreed term.
6. Level 3 shall use reasonable efforts to complete the build-out and make the
Space available to Customer on or before the date requested try Customer In the
event that Level 3 fails to complete the build-out within sixty (60) days
Page 11 of 17
<PAGE> 13
of the date requested by Customer, then Customer may terminate its rights to
use such Space and receive a refund of any fees paid for the use or build-out of
such Space.
7. Customer shall abide by any posted or otherwise communicated rules relating
to use of, access to, or security measures respecting the Space. In the event
that unauthorized parties gain access to the Space through access cards, keys or
other access devices provided to Customer, Customer shall be responsible for any
damages incurred as a result thereof. Customer shall be responsible for the cost
of replacing any security devices lost or stolen after delivery thereof to
Customer. In addition, Level 3 shall have the right to terminate Customer's use
of the Space or the Services in the event that: (a) Level 3's rights to use the
facility within which the Space is located terminates or expires for any reason;
(b) Customer has violated the terms hereof or of any Customer Order submitted
hereunder; (c) Customer makes any material alterations to the Space without
first obtaining the written consent of Level 3; (d) Customer allows personnel or
contractors to enter the Space who have not been approved by Level 3 in advance;
or (e) Customer violates any posted or otherwise communicated rules relating to
use of or access to the Space. Level 3 shall use reasonable efforts to notify
Customer of any events that may result in termination of the use of the Space or
delivery of Services.
8. Level 3 reserves the right to change the location or configuration of the
Space, provided, however, that Level 3 shall not arbitrarily or discriminatorily
require such changes. Level 3 and Customer shall work in good faith to minimize
any disruption in Customer's services that may be caused by such changes in
location or configuration of the Space.
9. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
10. Prior to occupancy and during the term of use of any Space, Customer shall
procure and maintain the following minimum insurance coverage: (a) Workers'
Compensation in compliance with all applicable statutes of appropriate
jurisdiction. Employer's Liability with limits of $500,000 each accident; (b)
Commercial General Liability with combined single limits of $1,000,000 each
occurrence; and (c) "All Risk" Property insurance covering all of Customer's
personal property located in the Space. Customer's Commercial General Liability
policy shall be endorsed to show Level 3 (and any underlying property owner, as
requested by Level 3) as an additional insured. All policies shall provide that
Customer's insurers waive all rights of subrogation against Level 3. Customer
shall furnish Level 3 with certificates of insurance demonstrating that Customer
has obtained the required insurance coverages prior to occupancy of the Space.
Such certificates shall contain a statement that the insurance coverage shall
not be materially changed or cancelled without at least thirty (30) days prior
written notice to Level 3. Customer shall require any contractor entering the
Space on its behalf to procure and maintain the same types, amounts and coverage
extensions as required of Customer above.
11. The liability of Level 3 for damages arising out of the furnishing of
Services or the Space, including but not limited to mistakes, omissions,
interruptions, delays, tortious conduct or errors, or other defects arising out
of the failure to furnish Services or Space, whether caused by acts of
commission or omission, shall be limited to a prorated refund of the charges
paid by Customer for the use of the Space hereunder. The extension of such
refunds shall be the sole remedy of Customer and the sole liability of Level 3.
Page 12 of 17
<PAGE> 14
TERMS AND CONDITIONS
INTERNET ACCESS - DEDICATED AND DIAL UP
The following Terms and Conditions shall be applicable to dedicated and dial-up
Internet Access Service (the "Internet Access Services") ordered by Customer
under any Customer Order.
1. Any state or federal tariffs applicable to the Internet Access Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
Internet Access Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Level 3
from time to time and which are available through Level 3's web site.
2. The nonrecurring charges and monthly recurring rates for the Internet Access
Services provided by Level 3 to Customer shall be set forth in each Customer
Order.
3. Customer hereby agrees to pay for the Internet Access Services for the period
of time specified in each Customer Order, which period shall commence with the
initiation of delivery of such Internet Access Services. The rates and other
charges set forth in each Customer Order are established in reliance on the term
and/or volume commitment made therein. In the event that Customer terminates
Internet Access Services ordered in any Customer Order or in the event that the
delivery of Internet Access Services is terminated due to a failure of Customer
to satisfy the requirements set forth herein or in the Customer Order prior to
the end of the agreed term, Customer shall (unless Customer has made a Revenue
Commitment) pay a termination charge equal to the termination or other charges
paid or to be paid by Level 3 for services purchased from other sources used to
deliver the Internet Access Services to Customer, plus the percentage of the
monthly recurring charges for the terminated Internet Access Services calculated
as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Internet Access Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Internet Access
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges for such
termination, rearrangement or reconfiguration.
4. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
5. This Section 5 shall apply only to Customers who order Dial-Up Internet
Access Services. The Dial-Up Internet Access Services shall be used only by an
officer, director, employee or agent ("Employee") of Customer. Customer shall
assure that each Employee accessing the Dial-Up Internet Access Service abides
by these Terms and Conditions. Prior to any Employee accessing Dial-Up Internet
Access Services, such Employee will be required to accurately complete an
on-line registration process. During this registration process, each Employee
will be required to identify himself/herself through some means satisfactory to
Level 3. Pursuant to the registration process, by clicking an "ACCEPT" icon,
each Employee will (i) agree to accurately complete the registration; (ii) agree
to abide by all of the provisions, terms, limitations, conditions and
restrictions of these Terms and Conditions; and (iii) agree to use the Dial-Up
Internet Access Services in accordance with any requirements set forth in the
online registration process and for the legitimate business purposes of Customer
only. Each Employee will also receive a password which such Employee will agree
to keep in strict confidence and which will be required whenever accessing the
Dial-Up Internet Access Services.
Page 13 of 17
<PAGE> 15
Standard Service Level Agreement (SLA)
Release 1
INTERNET DEDICATED ACCESS
Dedicated Internet Access service will be backed by a Standard Service Level
Agreement that has two components: a Service Delivery SLA and a Network
Performance SLA.
NOTE: The total number of credits per month for both Service Delivery and
Network Performance is limited to four days.
SERVICE DELIVERY SLA
- - 30 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 64 Kbps - 1.544 Kbps within the Standard
Service Area.
- - 45 Calendar Day Installation Guarantee for Customers buying Dedicated
Internet Access in speeds from 3 Mbps - 45 Mbps within the Standard Service
Area.
- - Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
- - Time to Respond - Within 30 minutes
- - 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
- - Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of >30 minutes will result in a one day service credit
when the customer notifies Level 3 of the failure.
- - ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
- - Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
NETWORK PERFORMANCE SLA
- - SERVICE AVAILABILITY
- - Availability refers to customer's access point to the Level 3 Internet
network, including their Level 3 provided local access circuit, and the
customer's port.
- - Unavailability Events are defined as any outage of the Level 3 provided
local access circuit and the customer's port of longer than 15 consecutive
minutes.
- - The Availability Guarantee does not extend to the performance of Internet
networks controlled
Page 14 of 17
<PAGE> 16
by other companies, or traffic exchange points (including NAPs and MAEs)
which are controlled by other companies.
- - Availability does not include regularly scheduled or emergency maintenance
events, or customer caused outages or disruptions.
- - Customers may report service unavailability events of longer than 15
consecutive minutes to Level 3 customer service within 48 hours of the
event. If the event is confirmed by Level 3 customer service, the customer
will receive a pro-rated service credit that equals the time of the
unavailability.
- - 40 MS ONE-WAY DELAY GUARANTEE
- - The Delay guarantee refers to the average delay parameters among the Level
3 Gateway sites in the United States. It does not extend to the customer's
local access circuit, transit or peering connections, or to circuits to the
traffic exchange points, including NAPs and MAEs.
- - Delay is measured as the average delay, over a calendar month, of traffic
between all major Gateways on the Level 3 U.S. Internet network.
- - Level 3 will publicly report the Average Monthly Delay measurement for the
Level 3 U.S. Internet Network at the end of every month.
- - If the customer reports that Level 3 has failed to meet the Delay
guarantee, and this is confirmed by Level 3 customer service, the customer
will be issued one day service credit.
NOTES:
- - All measurements are based on monthly averages.
- - These guarantees only apply to the Level 3 Internet Network. They do not
apply to NAP or transit connections, or to any traffic once it leaves the
Level 3 network.
- - This SLA does not apply to periods of regularly scheduled or emergency
maintenance that Level 3 performs on its network or associated hardware and
software.
- - Credits will only be applied to events where the Customer reports a network
performance failure to the Level 3 Customer Care organization.
- - Customers must report any Network Performance failures (unavailability or
delay) within 48 hours (two business days) of the service affecting event
in order to receive a credit. Customers must report any Service Delivery
failures within five business days of the event.
Page 15 of 17
<PAGE> 17
TERMS AND CONDITIONS
MANAGED MODEM -- DEDICATED, QUICKSTART AND TRANSIT SERVICES
The following Terms and Conditions shall be applicable to services required to
allow access to "Dedicated Services," "Dedicated Service with QuickStart" and
"Transit Services" as offered by Level 3 (the "Managed Modem Services") ordered
by Customer under any Customer Order.
1. Any state or federal tariffs applicable to the Managed Modem Services to be
delivered under any Customer Order are incorporated into the terms thereof. The
Managed Modem Services shall at all times be used in compliance with Level 3's
then-current Acceptable Use Policy and Privacy Policy, as amended by Level 3
from time to time and which are available through Level 3's web site.
2. In the event Customer orders "Dedicated Service," end user traffic will be
routed through and aggregated in Level 3's facility, sent to the Customer's
Premises via a dedicated circuit, and then routed to its final destination by
Customer. In the event that Customer orders "Transit Services," End User traffic
will be routed to Level 3's facility and then routed to its final destination by
Level 3 via the Internet. Dedicated Service with "QuickStart" will initially be
provisioned to the Customer in the same fashion as Transit Services, until such
time as Level 3 has provisioned the dedicated circuit to send end user traffic
from Level 3's facility to the Customer's Premises. QuickStart will then be
migrated to standard Dedicated Service. Customers ordering Dedicated Services
will be required to make a portion of the Premises available to Level 3 for the
placement of equipment necessary to provide such Dedicated Services. For
Dedicated Service, all Customer CPE as well as the private line necessary to
support this service will be ordered, installed and managed by Level 3. Any
telephone numbers assigned to Customer for the purpose of providing Managed
Modem Services hereunder shall be property of Customer; PROVIDED, however, that
Level 3 shall be obligated to release such numbers to Customer upon expiration
or termination hereof if and only if Customer is then in compliance with all of
the terms contained herein or in the Standard Terms and Conditions.
3. The nonrecurring charges and monthly recurring rates for the Managed Modem
Services provided by Level 3 to Customer shall be set forth in each Customer
Order. Level 3 will dedicate the specified number of ports to Customer in the
Level 3 facilities as identified in each Customer Order. Customer may be
responsible for additional monthly charges if Customer's use of the Managed
Modem Services requires and utilizes more ports than the number committed to and
ordered by Customer. 4. Customer hereby agrees to pay for the Services for the
period of time specified in each Customer Order, which period shall commence
with the initiation of delivery of such Managed Modem Services. The rates and
other charges set forth in each Customer Order are established in reliance on
the term commitment made therein. In the event that Customer terminates Managed
Modem Services ordered in any Customer Order or in the event that the delivery
of Managed Modem Services is terminated due to a failure of Customer to satisfy
the requirements set forth herein or in the Customer Order prior to the end of
the agreed term, Customer shall (unless Customer has made a Revenue Commitment)
pay a termination charge equal to the termination or other charges paid or to be
paid by Level 3 for services purchased from other sources used to deliver the
Managed Modem Services to Customer, plus the percentage of the monthly recurring
charges for the terminated Managed Modem Services calculated as follows:
a. 100% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 1-12 of the agreed term; plus
b. 75% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 13-24 of the agreed term; plus
c. 50% of the monthly recurring charge that would have been incurred for the
Managed Modem Service for months 25 through the end of the agreed term.
Customer may, in the event that a Revenue Commitment is made and is then being
satisfied by Customer, terminate, rearrange or reconfigure the Managed Modem
Services ordered under a Customer Order without payment of the termination
charge specified above; PROVIDED, HOWEVER, that Customer shall be responsible
for payment of Level 3's then-current standard nonrecurring charges for such
termination, rearrangement or reconfiguration.
5. Level 3 provides only access to the Internet; Level 3 does not operate or
control the information, services, opinions or other content of the Internet.
Customer agrees that it shall make no claim whatsoever against Level 3 relating
to the content of the Internet or respecting any information, product, service
or software ordered through or provided by virtue of the Internet.
Page 16 of 17
<PAGE> 18
Standard Service Level Agreement
Release 1
MANAGED MODEM
Managed Modem service will be backed by a Service Delivery SLA.
NOTE: The total number of credits per month is limited to four days.
SERVICE DELIVERY SLA
- - 30 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 64 Kbps - 1.544 Kbps within the Standard Service
Area.
- - 45 Calendar Day Installation Guarantee for Customers buying Managed Modem
service in speeds from 3 Mbps - 45 Mbps within the Standard Service Area.
- - Single toll-free number to reach Level 3 Customer Service for all customer
issues, including technical, billing, and product inquiries.
- - Time to Respond - Within 30 minutes
- - 2 hour calendar month Average Time To Repair (ATTR)
If Level 3 fails to meet any of the guarantees above, Level 3 will review all
reported failures at the end of the month, and calculate the applicable credits:
- - Any customer inquiry to the Level 3 Customer Service Center that results in
a Time to Respond of >30 minutes will result in a one day service credit
when the customer notifies Level 3 of the failure.
- - ATTR is calculated as a monthly average. All reported customer trouble
tickets will be totaled over the month, then the average time to close each
ticket will be calculated. If the ATTR is greater than 2 hours, the
customer will receive a one day service credit.
- - Credits will only be applied to events where the Customer reports a failure
to the Level 3 Customer Care organization. Customers must report any
Service Delivery failures within five business days of the event.
Page 17 of 17
<PAGE> 19
ADDENDUM
This addendum (the "Addendum") modifies the Level 3 Terms and Conditions,
Internet Access -- Dedicated and Dial Up, version 2 ("Terms & Conditions
Internet Access") between Level 3 and WebSideStory, Inc. ("Customer").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Terms & Conditions, Internet Access, and the terms and conditions
contained in this Addendum modify the Terms and Conditions, Internet Access, in
the following limited respects:
CHANGES TO TERMS AND CONDITIONS INTERNET ACCESS
1. Section 3 of the Terms and Conditions, Internet Access is amended by adding
to the end of that provision the following as a new paragraph:
Notwithstanding the above, Customer shall have the right to discontinue
the Service prior to the end of the agreed term with respect to which a
Service Order has been executed without payment of a termination charge
if: (i) such Service is Unavailable (as defined below) on two separate
occasions of more than eight (8) hours each in any calendar month, and
(ii) following written notice thereof from Customer to Level 3, Level 3
has failed to cure the Unavailability by having less than two separate
occasions of more than eight (8) hours of service Unavailability in the
thirty (30) day period immediately following said notice. For purposes
of the foregoing, service Unavailability shall mean the period of time
beginning when Customer reports an outage at Customer's access point to
the Level 3 internet network ("Access Point") to the Level 3 Customer
Service and Support Organization (1-877-4LEVEL3) and shall end when the
Access Point is operative. Unavailability shall not apply to any outage
which is caused by Customer, Customer's end users or any third party,
which results from failure of power or equipment provided by Customer or
others, which occurs or continues during any period in which Level 3 is
not given access to the Premises, or which result from scheduled or
emergency maintenance or repair. Customer must exercise its right to
terminate under this Section, in writing, no later than thirty (30) days
after Level 3 has failed to appropriately cure Unavailability events
giving rise to a right of termination hereunder.
2. A new Section 6 of the Terms and Conditions Internet Access, is added reading
as follows:
Network Performance SLA. "Unavailability Events" shall mean any outage of
Customer's Access Point, other than outages caused by Customer, Customer's end
users or any third party, which result from failure of power or equipment
provided by Customer or others, which occur or continue during any period in
which Level 3 is not given access to the Premises, or which result from
scheduled or emergency maintenance or repair. Customer shall report
Unavailability Events to Level 3 Customer Service within 48 hours of tile
Unavailability Event. The Unavailability Events confirmed by Level 3, which
Level 3 shall be able to document in writing to Customer, will be totaled by
Level 3 on ii calendar month
<PAGE> 20
basis and Customer will receive a pro-rated service credit according to
the table below based upon the monthly recurring charges for the
affected service:
Unavailability Event Duration - Up to One Hour = 1 hour credit
Unavailability Event Duration > 60 Minutes = 1 day credit
Unavailability Event Duration > 8 Hours = 1 week credit
Unavailability Event Duration > 18 Hours = 1 month credit
CUSTOMER ACCEPTANCE
- -----------------------------------
Authorized Customer Signature
- -----------------------------------
Date
- -----------------------------------
Typed or Printed Name
- -----------------------------------
Title
LEVEL 3 ACCEPTANCE
- -----------------------------------
Authorized Level 3 Signature
- -----------------------------------
Date
- -----------------------------------
Typed or Printed Name
- -----------------------------------
Title
2
<PAGE> 1
* Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
EXHIBIT 10.6
DIGEX Rep. Jamie Shupe
[DIGEX LOGO]
BUSINESS CONNECTIVITY SERVICE ORDER FORM
<TABLE>
<CAPTION>
SECTION A - TO BE COMPLETED BY DIGEX INITIAL MONTHLY
CHARGE CHARGE
<S> <C> <C>
Customer - WEB SIDE STORY
Access Type LEASED LINE Post Speed - 45 Mbps CIR - 45 Mbps *** ***
--------- ----------
Hardware Router - NONE CSU/DSU- NONE
--------- ----------
Firewall
--------- ----------
Brand Service Level
--------- ----------
License Platform
--------- ----------
Other Services- Managed Service: [ ] Pager [ ] UPS
--------- ----------
Contract Term - 3 year(s) Total Contract Value- *** Total Charges *** ***
--------- ----------
Special Instruction
</TABLE>
SECTION B - TO BE COMPLETED BY CUSTOMER
Company Name WEBSIDESTORY, INC.
-------------------------------------------------------------------
Site Address 6450 Lusk Blvd. E204
-------------------------------------------------------------------
City San Diego State CA ZIP 92121
------------------------------- ---------- --------------------
SITE PHONE (619) 546-0040 FAX (619) 546-0480
------------------ ----------------
Primary Technical Contact JIM VAN BAALAN
---------------
Phone 619 546 0040 FAX 619 546 0840 Email [email protected]
-------------- ------------- ------------------------
Secondary Technical Contact Neil Bartolome
----------------------------------------------------
Phone FAX Email
------------------------------ --------------- -----------------
Customer Type - Corporate Existing Customer? [ ] Yes [X] No [ ] N/A
Telco [X] DIGEX Provided [ ] Customer Provided [ ] Extended Demarc
DIGEX Provides Primary DNS [ ] Yes [X] No [ ] N/A
Customer has already registered Domains [X] Yes [ ] No [ ] N/A
Customer Authorizes DIGEX to transfer Domains [ ] Yes [ ] No [X] N/A
Number of IP Addresses needed /22
-----------------------
Requested Domain Name 1. N/A 2. N/A
---------------------------- ----------------------
Customer hereby orders from DIGEX the Products and Services for the term
specified in this Service Order Form. This Service Order Form is valid when
accepted by an authorized representative of DIGEX and accompanied by an
executed DIGEX Terms and Conditions agreement. Charges do not include any
special construction or inside/extended wiring costs, shipping and handling, or
applicable taxes. Telco rates are estimated based on current Telco carrier
tariffs. All orders subject to credit approval. Customer will be billed
separately by InterNIC for Domain Name registration, and will be charged a
$100.00 one-time DIGEX fee for each additional primary Domain Name. Customer
may be required to provide documentation to justify allocation of IP addresses.
ACCEPTED BY CUSTOMER ACCEPTED BY DIGEX
/s/ BLAISE BARRELET
- ------------------------------------- ---------------------------------
Customer Signature Signature
BLAISE BARRELET
- ------------------------------------- ---------------------------------
Name Date Name Date
PRESIDENT MAY 29 1998
- ------------------------------------- ---------------------------------
Title Title
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 2
DIGEX TERMS AND CONDITIONS
DIGEX SERVICE: Customer agrees to purchase the DIGEX Products and or Services
outlined in the front page of this Agreement per the terms and conditions
described herewith. Customer agrees to remain as a subscriber of the service for
the period identified from the date of service activation. At the end of the
service commitment this Agreement shall be automatically renewed for successive
one (1) year periods on the same terms and conditions contained herein, with the
exception of the price of services, and shall continue to be automatically
renewed until terminated by either party as provided herein. Notice of
termination should be made in writing to the DIGEX Customer Service Department
at One DIGEX Plaza, Beltsville Maryland 20705 no less than thirty (30) days
prior to the expiration of any term of this Agreement.
RIGHTS AND OBLIGATIONS OF CUSTOMER: DIGEX's services are only to be used for
lawful purposes. Customer shall not transmit, retransmit or store material in
violation of any federal or state laws or regulations, including, but not
limited to, obscenity, indecency, defamation, or infringement of trademark or
copyright. In particular, by signing these terms and conditions, Customer agrees
to adhere to DIGEX's Acceptable Use Policy. Failure to comply with these
obligations shall constitute violation of these terms and conditions and
possible termination of this Agreement at DIGEX's discretion should the
infringement not be rectified to DIGEX's satisfaction. If Customer operates
hardware or software that DIGEX determines may cause hazard, interference, or
service interruption to DIGEX provided equipment or services or the DIGEX
network, Customer shall immediately remove the offending hardware or software
upon notice.
PROPRIETARY RIGHTS: DIGEX grants Customer a non-exclusive, non-transferable
license to use the Products and Services provided hereunder. Title, property
rights, software licenses and hardware licenses and agreements, including all
intellectual property rights to such Products and Services, are and shall remain
with DIGEX, whether or not they are embedded in any Product or Service. Customer
recognizes that the Products and Services used hereunder constitute valuable
trade secrets of DIGEX. Customer will use its best efforts to protect and keep
confidential any and all Products and Services used by it and shall not attempt
in any way to copy, examine, alter, re-engineer, tamper with, or otherwise
misuse such Products and Services. In all cases the IP addresses assigned for
Customer use remain the property of DIGEX and shall revert back to same upon
Customer termination.
INSTALLATION: Installation and one-time charges set forth on the service order
are due upon order. Installation charges are nonrefundable. Customer shall
provide all necessary preparations to permit installation, maintenance and
operation of Products and Services provided hereunder unless otherwise specified
in this Agreement and shall provide to DIGEX and its suppliers reasonable access
to Customer's premises including the point at which leased telco services are
provided to Customer. Customer is also responsible for any and all additional
telco charges arising as a result of necessity to reschedule telco suppliers, as
well as all telco maintenance and diagnostics charges that may be needed. Once
DIGEX services have been installed, Customer shall be ' responsible for any fees
associated with relocation of services if requested by Customer, including a one
time DIGEX installation fee, and corresponding adjusted recurring telco fees
dependent on the geographical relocation. If at any time during this contract
the Customer wishes to downgrade bandwidth, the Customer agrees to pay a
one-time downgrade fee of $750 and any applicable telco fees.
CUSTOMER PREMISE EQUIPMENT: Customer is responsible for all maintenance and
upgrades of equipment purchased from DIGEX beyond the manufacturer's standard
warranty on said equipment. Any unused hardware or software purchased from DIGEX
may be returned for full refund, less a 20% restocking fee, within 60 days of
purchase provided such items are unused, in original packaging and in full
working order. In the event that DIGEX provides equipment to Customer in
conjunction with Service wherein such equipment remains the property of DIGEX;
(i) the configuration and type of equipment to be used shall be determined
solely by DIGEX, (ii) DIGEX shall provide the initial equipment configuration
and verify operability with the DIGEX network,
<PAGE> 3
DIGEX TERMS AND CONDITIONS
(iii) Customer is responsible for operating the equipment within the parameters
of the manufacturer's specifications, and (iv) DIGEX may choose at its sole
discretion to provide software upgrades for hardware. Additional support of
DIGEX staff to reconfigure equipment once installed, should service be required
due to Customer intervention, shall be chargeable to Customer at DIGEX's
then-current support rates.
SERVICE OF EQUIPMENT PROVIDED BY DIGEX: In the event of failure of DIGEX owned
equipment provided to Customer in conjunction with Service, like equipment shall
be provided by DIGEX as promptly as reasonably possible, via next business day
delivery to Customer site. Equipment shall be pre-configured by DIGEX in
conjunction with configuration guidelines. Once operability is verified,
Customer shall return the faulty equipment to DIGEX with 15 days of receipt of
new equipment. Failure to do so shall result in the Customer being billed for
the faulty equipment in the amount equaling vendor's list price as determined by
DIGEX. At termination of the Agreement, all DIGEX owned equipment must be
returned in good working order within 30 days. Failure to do so shall result in
liability to the Customer for the cost of repair of the faulty equipment or the
cost of replacement of the non-returned equipment in an amount equaling vendor's
list price as determined by DIGEX.
INVOICING AND PAYMENT OF SERVICE: Initial rates for the services are set forth
on the DIGEX Order Form. The initial rates shall be in effect for the duration
of the initial service commitment. During any renewal terms, the rates shall be
those contained in the then current DIGEX price list unless otherwise agreed by
the parties. DIGEX will invoice Customer monthly in advance. The price of the
service described within does not include sales, usage, excise, ad valorem,
property or any other taxes now or hereafter imposed, directly or indirectly, by
any governmental authority or agency with respect to the Service. Customer
agrees to pay such taxes directly or reimburse DIGEX for any such taxes. This
bill is due and payable in full on the date shown on the bill. Customers also
have the option of prepayment of services for term of Agreement. For Customers
receiving DIGEX burstable services, charges are billed one month in arrears,
based upon actual usage.
NON-PAYMENT / CUSTOMER TERMINATION: A late charge of the lesser of 1-1/2% per
month or the maximum rate permitted by law may be applied to each of Customer's
service bills not paid by the due date. This late charge is applicable to the
unpaid balance as of the due date. Customer shall pay DIGEX all costs including,
without limitation, reasonable attorney fees, the fees of any collection agency,
and any other costs incurred by DIGEX in exercising any of its rights under the
Agreement. If Customer terminates the Agreement, Customer will pay a lump sum
equal to the charges for the remainder of the then current term of the Agreement
but, except as described in the next sentence, in no case greater than one year.
If the Customer is terminated by DIGEX for violation of the Acceptable Use
Policy, Customer shall pay immediately a lump sum equal to the charges for the
remainder of the then current term of the Agreement.
MAINTENANCE WINDOW: DIGEX maintains specified time periods during which it may
perform necessary network maintenance and/or network upgrades. These specified
time periods are referred to as "Scheduled Maintenance Windows". In the event
DIGEX plans to bring down the Service or the Equipment during a Scheduled
Maintenance Window, DIGEX will provide a 24-hour notice to Customer in advance
of the Scheduled Maintenance Window. In addition, DIGEX reserves the right to
perform any required maintenance work outside of the Scheduled Maintenance
Window with a minimum of 12 hours notification to Customer. However, Customer
understands that at any time DIGEX may perform emergency maintenance as needed
to preserve the overall integrity of the products and services offered as
determined by DIGEX with no notice.
DIGEX SERVICE LEVEL GUARANTEE: If the Customer notifies DIGEX in writing
immediately upon failure to access DIGEX's Services and or Equipment and DIGEX
determines in its reasonable commercial judgment that the outage has been caused
by DIGEX, the Customer will receive a credit against its next monthly invoice.
In the event of a service interruption that exceeds one hour in
<PAGE> 4
DIGEX TERMS AND CONDITIONS
any calendar day, DIGEX will grant a credit allowance for that entire day of
service, equivalent to 1/30th of the monthly port and telco service charge, for
the service affected. In the event of service interruptions of, in the
aggregate, two to eight hours in any calendar month, DIGEX will credit
Customer's account for a week of service. In the event of service interruptions
of, in the aggregate, eight hours to two days in any calendar month, DIGEX will
credit Customer's account for two weeks of service. In the event of service
interruptions of, in the aggregate, two days to four days in any calendar month,
DIGEX will credit Customer's account for three weeks of service. In the event of
service interruptions of, in the aggregate, more than four days in any calendar
month, DIGEX will credit Customer's account for the entire month of service. If
Customer has the right, pursuant to this clause to credits equal to or greater
than one week of service in two consecutive calendar months, Customer may
terminate this agreement, without penalty, on written notice to DIGEX. A service
interruption will be deemed to have occurred if Customer is unable to
communicate with or access any other Internet Service Provider via the IP
Transmission Protocol and as a result of failure of DIGEX's facility, equipment
or personnel used to provide the service in question, and only where the
interruption is not the result of a Scheduled Maintenance Window.
CREDIT INFORMATION: Customer consents to standard credit check by DIGEX in order
to confirm credit-worthiness and to DIGEX's disclosure of account information to
or from credit reporting agencies, credit bureaus, private credit reporting
associations, or to or from other providers of telecommunications services at
any time during Customer's service with DIGEX.
LIMITATION OF LIABILITY: DIGEX exercises no control whatsoever over the content
of any information passing through its network and is not responsible for
damages Customer suffers for any reason, including, but not limited to, loss or
degradation of data resulting from delays, nondeliveries, wrong deliveries and
any and all service interruptions whether caused by the acts and omissions of
DIGEX and its employees, of Customer or of any other party. DIGEX makes no
representation that it can provide uninterrupted service. Furthermore, DIGEX
shall have no liabilities other than the credits outlined within due to
interrupted service unless caused by the gross negligence of DIGEX. DIGEX shall
not be liable for acts or omissions of other carriers, equipment failures or
modifications, acts of God, strikes, government actions, or other causes beyond
its reasonable control. DIGEX MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS
OR SERVICES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED. DIGEX
SHALL NOT BE LIABLE TO ITS CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. Any legal action arising out of
the provision of DIGEX's services shall be brought within a period of one year
of the occurrence or shall be deemed waived. Customer agrees to indemnify and
hold harmless DIGEX from any and all claims resulting from Customer's use of the
equipment or services which cause damage to Customer or any other party.
TRANSFER AND ASSIGNMENT: Neither party, other than for collateral purposes, may
sell, assign or transfer this Agreement without the prior written consent of the
other party, except that DIGEX may assign this Agreement to any of its
affiliates or any person who acquires substantially all of the assets of DIGEX.
Customer may not resell IP accounts or Internet services of any kind from a
DIGEX provided connection without explicit written permission of DIGEX.
GOVERNING LAW: This Agreement is governed by the laws of the State of Maryland
without regard to its choice of law provisions.
ACCEPTANCE: These Terms and Conditions of the "Agreement" together supersede all
previous representations, understandings or agreements and shall prevail
notwithstanding any variance with terms and conditions of any order submitted.
- ---------------------------------------- -------------------------
Customer Date
- ----------------------------------------
Print Customer Name
- ---------------------------------------- -------------------------
DIGEX Date
<PAGE> 5
DIGEX TERMS AND CONDITIONS
DIGEX SERVICE: Customer agrees to purchase the DIGEX Products and/or Services
outlined in the front page of this Agreement per the terms and conditions
described herewith. Customer agrees to remain as a subscriber of the service
for the period identified from the date of service activation. At the end of
the service commitment this Agreement shall be automatically renewed for
successive one (1) year periods on the same terms and conditions herein, with
the exception of the price of services, and shall continue to be automatically
renewed until terminated by either party as provided herein. Notice of
termination should be made in writing to the DIGEX Customer Service Department
at One DIGEX Plaza, Beltsville, Maryland 20705 no less than thirty (30) days
prior to the expiration of any term of this Agreement.
RIGHTS AND OBLIGATIONS OF CUSTOMER: DIGEX's services are only to be used for
lawful purposes. Customer shall not transmit, retransmit or store material in
violation of any federal or state laws or regulations, including, but not
limited to, obscenity, indecency, defamation, or infringement of trademark or
copyright, in particular, by signing these terms and conditions. Customer
agrees to adhere to DIGEX's Acceptable Use Policy. Failure to comply with these
obligations shall constitute violation of these terms and conditions and
possible termination of this Agreement at DIGEX's discretion should the
infringement not be rectified to DIGEX's satisfaction. If Customer operates
hardware or software that DIGEX determines may cause hazard, interference, or
service interruption to DIGEX provided equipment or services or the DIGEX
network, Customer shall immediately remove the offending hardware or software
upon notice.
PROPRIETARY RIGHTS: DIGEX grants Customer a non-exclusive, non-transferable
license to use the Products and Services provided hereunder. Title, property
rights, software licenses and hardware licenses and agreements, including all
intellectual property rights to such Products and Services, are and shall
remain with DIGEX, whether or not they are embedded in any Product or Service.
Customer recognizes that the Products and Services used hereunder constitute
valuable trade secrets of DIGEX. Customer will use its best efforts to protect
and keep confidential any and all Products and Services used by it and shall
not attempt in any way to copy, examine, alter, re-engineer, tamper with, or
otherwise misuse such Products and Services. In all cases the IP addresses
assigned for Customer use remain the property of DIGEX and shall revert back to
same upon Customer termination.
INSTALLATION: Installation and one-time charges set forth on the service order
are due upon order. Installation charges are nonrefundable. Customer shall
provide all necessary preparations to permit installation, maintenance and
operation of Products and Services provided hereunder unless otherwise
specified in this Agreement and shall provide to DIGEX and its suppliers
reasonable access to Customer's premises including the point at which leased
telco services are provided to Customer. Customer is also responsible for any
and all additional telco charges arising as a result of necessity to reschedule
telco suppliers, as well as all telco maintenance and diagnostics charges that
may be needed. Once DIGEX services have been installed, Customer shall be
responsible for any fees associated with relocation of services if requested by
Customer, including a one time DIGEX installation fee, and corresponding
adjusted recurring telco fees dependent on the geographical relocation. If at
any time during this contract the Customer wishes to downgrade bandwidth, the
Customer agrees to pay a one-time downgrade fee of $750 and any applicable
telco fees.
CUSTOMER PREMISE EQUIPMENT - Purchased by Customer: Customer is responsible
for all maintenance and upgrades of equipment purchased from DIGEX
(manufacturer's warranty may apply in some circumstances). Any unused hardware
or software purchased from DIGEX may be returned for a full refund, less a 20%
restocking fee, within 15 days of receipt by Customer, provided such items are
unopened, in original packaging, and in full working order, except that if
Customer purchases equipment with a custom configuration, as detailed in an
attachment hereto, it is not returnable by Customer.
CUSTOMER PREMISE EQUIPMENT - Provided by DIGEX: In the event that DIGEX
provides DIGEX-owned equipment to Customer in conjunction with service, (i) the
configuration and type of equipment to be used shall be determined solely by
DIGEX (except that DIGEX may agree to obtain a custom equipment configuration
specifically for Customer as detailed in a separate attachment); (ii) DIGEX
shall provide the initial equipment configuration and verify operability with
the DIGEX network; (iii) Customer is responsible for operating the equipment
within the parameters of the manufacturer's specifications; and (iv) DIGEX may
choose at its sole discretion to provide software upgrades for hardware.
Additional support of DIGEX staff to reconfigure equipment once installed,
should service be required due to Customer's action, shall be chargeable to
Customer at DIGEX's then-current support rates. In the event of failure of
DIGEX-owned equipment provided to Customer in conjunction with service, like
equipment shall be provided by DIGEX as promptly as reasonably possible via next
business day delivery to Customer site. In the case of equipment with a
customer configuration, as detailed in an Attachment hereto, DIGEX may agree to
a shorter replacement period. DIGEX shall pre-configure equipment in
conjunction with configuration guidelines. Once operability is verified,
Customer shall return any faulty equipment to DIGEX within 15 days of receipt
of new equipment. Failure to do so shall result in the Customer being billed
for the faulty equipment in the amount equal to vendors list price as
determined by DIGEX. At termination of the Agreement, all DIGEX-owned equipment
must be returned in good working order within 30 days. Failure to do so shall
result in liability to the Customer for the cost of replacement of the
non-returned equipment in the amount equal to vendors list price as determined
by DIGEX.
INVOICING AND PAYMENT OF SERVICE: Initial rates for the services are set forth
on the DIGEX Order Form. The initial rates shall be in effect for the duration
of the initial service commitment. During any renewal terms, the rates shall be
those contained in the then current DIGEX price list unless otherwise agreed by
the parties. DIGEX will invoice Customer for services in advance on a monthly
basis. Except that, for those Customers receiving DIGEX burstable services,
charges for burstable services above and beyond the base tier rate are billed
one month in arrears because such charges are based upon actual usage. The
price of the service described within does not include sales, usage, excise,
ad valorem, property or any other taxes now or hereafter imposed, directly or
indirectly, by any governmental authority or agency with respect to the
Service. Customer agrees to pay such taxes directly or reimburse DIGEX for
any such taxes. This bill is due and payable in full on the date shown on the
bill. Customers also have the option of prepayment of services for term of
Agreement. Customer shall be responsible and will reimburse Company for
telephone company or other service provider installation or any other charges,
including monthly service charges, incurred by Company in the fulfillment of
this Agreement if: (i) the Agreement is terminated after execution but prior to
initiation of the Products and Services; or (ii) there is a delay in the
initiation of the Products and Services that is caused, through action or
inaction, by the Customer.
NON-PAYMENT/CUSTOMER TERMINATION: A late charge of the lesser of 1-1/2% per
month of the maximum rate permitted by law may be applied to each of Customer's
service bills not paid by the due date. This late charge is applicable to the
unpaid balance as of the due date. Customer shall pay DIGEX all costs
including, without limitation, reasonable attorney fees, the fees of any
collection agency, and any other costs incurred by DIGEX in exercising any of
its rights under the Agreement. If Customer terminates the Agreement Customer
will pay a lump sum equal to the charges for the remainder of the then current
term of the Agreement but, except as described in the next sentence, in no case
greater than one year. If the Customer is terminated by DIGEX for violation of
the Acceptable Use Policy, Customer shall pay immediately a lump sum equal to
the charges for the remainder of the then current term of the Agreement.
MAINTENANCE WINDOW: DIGEX maintains specified time periods during which it may
perform necessary network maintenance and/or network upgrades. These specified
time periods are referred to as "Schedule Maintenance Windows". In the event
DIGEX plans to bring down the Service or the Equipment during a Scheduled
Maintenance Window, DIGEX will provide a 24-hour notice to Customer in advance
of the Scheduled Maintenance Window. In addition, DIGEX reserves the right to
perform any required maintenance work outside of the Scheduled Maintenance
Window with a minimum of 12 hours notification to Customer. However, Customer
understands that at any time DIGEX may perform emergency maintenance as needed
to preserve the overall integrity of the products and services offered as
determined by DIGEX with no notice.
DIGEX SERVICE LEVEL GUARANTEE; If the Customer notifies DIGEX in writing
immediately upon failure to access DIGEX's Services and or Equipment and DIGEX
determines in its reasonable commercial judgment that the outage has been caused
by DIGEX, the Customer will receive a credit against its next monthly invoice.
In the event of a service interruption that exceeds one hour in any calendar
day, DIGEX will grant a credit allowance for that entire day of service,
equivalent to 1/30th of the monthly port and telco service charge, for the
service affected. A service interruption will be deemed to have occurred if
Customer is unable to communicate with or access any other Internet Service
Provider via the IP Transmission Protocol and as a result of failure of DIGEX's
facility, equipment or personnel used to provide the service in question, and
only where the interruption is not the result of a Scheduled Maintenance Window.
CREDIT INFORMATION: Customer consents to standard credit check by DIGEX in
order to confirm credit-worthiness and to DIGEX's disclosure of account
information to or from credit reporting agencies, credit bureaus, private
credit reporting associations, or to or from other providers of
telecommunications services at any time during Customer's service with DIGEX.
LIMITATION OF LIABILITY: DIGEX exercises no control whatsoever over the content
of any information passing through its network and is not responsible for
damages Customer suffers for any reason, including, but not limited to, loss or
degradation of data resulting from delays, non-deliveries, wrong deliveries and
any and all service interruptions whether caused by the acts and omissions of
DIGEX and its employees, of Customer or of any other party. DIGEX makes no
representation that it can provide uninterrupted service. Furthermore, DIGEX
shall have no liabilities other than the credits outlined within due to
interrupted service unless caused by the gross negligence of DIGEX. DIGEX shall
not be liable for acts or omissions of other carriers, equipment failures or
modifications, acts of God, strikes, government actions, or other causes beyond
its reasonable control. DIGEX makes no warranties with respect to the products
or services of any kind whatsoever, express or implied, except as specifically
provided in this agreement. The implied warranties of merchantability and
fitness for any particular purpose are hereby disclaimed and excluded. DIGEX
shall not be liable to its customer or any third party for any special,
punitive, incidental, or consequential damages. Any legal action arising out of
the provision of DIGEX's services shall be brought within a period of one year
of the occurrence or shall be deemed waived. Customer agrees to indemnify and
hold harmless DIGEX from any and all claims resulting from Customer's use of
the equipment or services which cause damage to Customer or any other party.
TRANSFER AND ASSIGNMENT: Neither party, other than for collateral purposes, may
sell, assign or transfer this Agreement without the prior written consent of
the other party, except that DIGEX may assign this Agreement to any of its
affiliates or any person who acquires substantially all of the assets of DIGEX.
Customer may not resell IP accounts or Internet services of any kind from a
DIGEX provided connection without explicit written permission of DIGEX.
GOVERNING LAW: This Agreement is governed by the laws of the State of MD
without regard to its choice of law provisions. ACCEPTANCE: These Terms and
Conditions of the "Agreement" together supersede all previous representations,
understandings or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted.
WEBSIDESTORY May 29, 1998
- ------------------------- --------------------
Customer Date
/s/ BLAISE BARRELETT
- -------------------------
Print Customer Name
- ------------------------- --------------------
DIGEX Date
<PAGE> 6
[DIGEX LOGO]
CONTRACT ADDENDUM
NON-PAYMENT/ CUSTOMER TERMINATION
Paragraph 8 the 4th sentence should be stricken and replaced to read as
follows:
"If the Customer is terminated by DIGEX for persisting in violation of the
Acceptable Use Policy (after Customer receives notice and a 30-day period to
cure or desist in any such violation), then the Customer will pay (in lieu of
any charges for the remainder of the then current term of the Agreement)
liquidated damages. Liquidated damages will be equal to $150,000 minus the
product of $150,000 and a fraction, the numerator of which is the number of
whole months in the current term of the Agreement already paid for by Customer
and the denominator of which is the total number of months constituting the
current term of the Agreement."
DIGEX SERVICE LEVEL GUARANTEE
Paragraph 10 the 3rd sentence should read as follows:
In the event of a service interruption that exceeds one hour in any calendar
day, DIGEX will grant a credit allowance for that entire day of service,
equivalent to 1/30th of the monthly port and telco monthly service charge or if
the customer experiences eight hours of contiguous service interruption DIGEX
will credit 3 days of monthly port and telco service charges.
AGREED TO BY:
Customer Signature /s/ BLAISE BARRELET Title: President Date: May 28, 1998
---------------------
Blaise Barrelet
DIGEX ACCEPTANCE:
DIGEX Signature__________ Title:_________ Date____________
<PAGE> 7
[DIGEX LOGO]
May 29, 1998
SERVICE LEVEL GUARANTEE:
For Purposes of this agreement, any of the following shall constitute a
breach of Agreement by DIGEX unless the result of matters beyond DIGEX's
control: (i) failure of the service to remain fully operational to its end-users
for at least 99.98% of the total number of hours in any month, or (ii) the
failure to remain fully operational to its end users for a period of more than
one hour and forty five minutes, contiguous or noncontiguous, during any
consecutive 30 day period. If a failure should occur as a result of matters
beyond DIGEX's control, DIGEX shall use its best reasonable efforts to
investigate the cause and to remedy such failure as soon as possible.
DIGEX
By:
-------------------------
WEB SIDE STORY
By: /s/ BLAISE BARRELET
-------------------------
Blaise Barrelet, President
<PAGE> 1
* Confidential Treatment Requested
Under 17 C.F.R. Section 200.80(b)(4),
200.83 and 230.406
EXHIBIT 10.7
COVER AGREEMENT
FOR
SPRINT COMMUNICATIONS PRODUCTS AND SERVICES
This Cover Agreement for Sprint Communications Products and Services
("Agreement") by and between SPRINT COMMUNICATIONS COMPANY L.P. ("Sprint") and
WEB SIDE STORY ("Customer") establishes certain special prices and related terms
and conditions governing Sprint's provision of Domestic Sprint IP products and
services ("Products and Services") to Customer.
Sprint is a telecommunications common carrier providing intrastate, interstate
and international services to customers: (1) on a non-tariff basis; and, (2)
pursuant to tariffs on file with the Federal Communications Commission (F.C.C.),
various state regulatory commissions or in-country international
telecommunications bodies (collectively referred to as "Tariffs"), as
applicable, and as amended from time to time by Sprint.
1. TERM
The term ("Term") of this Agreement is 36 months and begins on the first
day of the first complete billing month following execution of this
Agreement by both parties ("Commencement Date"). When this Agreement
expires or terminates, Sprint will provide the Products and Services to
Customer at Sprint's then current Tariff or public price list.
2. SPECIAL PRICES FOR PRODUCTS AND SERVICES
Subject to the terms and conditions in this Agreement, Customer will receive the
rates, charges and discounts ("Special Prices") in Attachment A (attached and
incorporated into this Agreement) on its purchase of the Products and Services
during the Term. Rates, charges and discounts for Sprint products and services
not in this Agreement will be provided under the applicable Tariffs or public
price list.
3. OTHER TERMS AND CONDITIONS
3.1 Orders and Other Documents. Customer will order the Products and
Services by executing Sprint's standard Order for Data Communication
Services form and other order forms designated by Sprint ("Orders"),
subject to Sprint's acceptance of the Orders. The minimum Order term
for the Products and Services is 3 years. The Sprint Tariffs, if
applicable, and Sprint's IP Products and Services Terms and
Conditions (attached and incorporated into this Agreement as
Attachment B) apply to Sprint's provision of Products and Services.
If there is a conflict between this Agreement and the documents
referenced in this Agreement, the order of precedence is: (1) Sprint
Tariffs, if applicable (2) the terms and conditions in this Agreement
(including the Attachments), (3) Sprint's IP Products and Services
Terms and Conditions and (4) the Orders.
3.2 Performance Guarantees. The performance guarantees for Sprint's IP
Products and Services are defined in Attachment D (Availability) and
Attachment E (Delay) (attached and incorporated into this Agreement).
3.3 Material Failure. Customer agrees to provide prompt written notice to
Sprint of any material failure by Sprint to provide Products and
Services as set forth in this Agreement. If Sprint fails to cure the
material failure within a reasonable time, Customer may terminate the
affected Products and Services on 30 days' written notice to Sprint.
A material failure by Sprint will not include a failure caused by the
local
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Agreement No. BSG9811-261
exchange carrier, Customer Premise Equipment, Customer or any other
failure caused by circumstances outside the sole control of Sprint.
3.4 Governmental Programs. Sprint may adjust its rates and charges or
impose additional rates and charges on Customer in order to recover
amounts that Sprint is required by governmental or quasi-governmental
authorities to collect on behalf of or pay to others in support of
statutory or regulatory programs. Examples of such programs include,
but are not limited to, the Universal Service Fund, the Presubscribed
Interexchange Carrier Charge, and compensation to payphone service
providers for use of their payphones to access Sprint's service.
3.5 Nondisclosure-Agreement. This Agreement and any information
concerning its terms, conditions or Special Prices are confidential
and proprietary information of Sprint and are governed by the
Agreement for Use and Nondisclosure of Confidential Information,
effective DECEMBER 7, 1998, and continuing in effect for the Term.
3.6 Notices. All notices or other communication arising out of disputes
under this Agreement must be in writing and delivered to the
addresses shown below the parties' signatures at the end of this
Agreement.
4. ENTIRE AGREEMENT
This Agreement (including all referenced documents and Attachments) is the
entire understanding between Sprint and Customer relating to this
Agreement, and supersedes all proposals, agreements, understandings,
negotiations, discussions, whether oral or written, or other communication
between the parties relating to this Agreement. Customer is not relying
upon any representations or promises made by or on behalf of Sprint in
entering into this Agreement. All modifications, interlineations,
additions, supplements or other changes to this Agreement must be accepted
by both parties in writing.
To become effective, this Agreement must be signed by an authorized officer of
Customer, delivered to Sprint on or before FEBRUARY 17, 1999, and then executed
by an officer of Sprint.
WEB SIDE STORY SPRINT COMMUNICATIONS COMPANY L.P.
By: By:
/s/ BLAISE BARRELET 2/25/99 /s/ GARY NG 2/2/99
- -------------------------------------- ------------------------------------
Signature and Date Signature and Date
BLAISE BARRELET, PRESIDENT GARY NG, BRANCH MANAGER
- -------------------------------------- ------------------------------------
Name and Title (Typed or Printed) Name and Title (Typed or Printed)
ADDRESS FOR NOTICE ADDRESS FOR NOTICE
6450 Lusk Boulevard, Suite E204 2002 Edmund Halley Drive
San Diego, CA 92121 Reston, Virginia 20191
Attention: Reston Contracts Group
(Mail Stop: VARESC0105)
With a copy to:
Sprint Communications
8140 Ward Parkway
Kansas City, Missouri 64114
Attention Law Department/Marketing
and Sales
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<PAGE> 3
Agreement No. BSG9811-261
ATTACHMENT A
PRICING COMPONENTS FOR DOMESTIC SPRINT IP PRODUCTS AND SERVICES
A. DESCRIPTION OF DOMESTIC SPRINT IP CHARGES
Domestic Sprint IP Products and Services consist of both Internet (public)
and Intranet (corporate LAN) network access to allow remote users to
dial-up (via local or toll-free access) for access to hosts or other
resources available on such networks. The term "Domestic" is defined as the
48 contiguous United States and the District of Columbia. The following are
the primary price components of Domestic Sprint IP Dedicated Products and
Services:
1. Dial Access Charges - There is a one-time fixed charge per remote user
for set-up of the user ID and a usage charge per remote user per hour
for either local or toll free dial access. The hourly rates generally
cover access at any time from any available city. Dial access usage
charges do not include local telephone message and toll charges.
2. Dedicated IP Port Charges - There are one-time installation charges
and a monthly recurring charges per Dedicated IP Port for: (a) local
access facilities (per Tariff 8), (b) the Port and (c) Customer
Premise Equipment (CPE) required for each Dedicated IP Port.
3. Frame Relay Gateway Charges - For Frame Relay Gateways to the Internet
or Intranet, there is a one-time charge and a monthly charge for each
Burst Express PVC.
4. User ID Charges - There is a one-time charge and a monthly charge per
user ID for assignment and administration of the customer-managed or
Sprint-managed user IDs (Fixed Address or Dynamic Address).
5. Customer Premise Equipment - Certain Customer Premise Equipment
("CPE") may be used with Sprint's IP Products and Services. Customer
may purchase or rent such CPE from Sprint pursuant to the Sprint CPE
Order form. Customer provided CPE must be certified by Sprint. There
is a one time installation charge for CPE installed by Sprint, and a
monthly recurring charge for CPE rented from Sprint.
6. Internet Service Providers (ISPs) - If Customer is or becomes an ISP
the terms and conditions of the Addendum to Sprint IP Products and
Services will apply (attached and incorporated into this Agreement as
Attachment C. Customer will be considered an ISP if Sprint determines,
at its sole discretion, that Customer is in the business of reselling
(directly or indirectly) Internet access or web hosting services.
B. DOMESTIC SPRINT IP PRODUCTS AND SERVICES SPECIAL PRICES AND TERMS
Customer will receive the following Special Prices for Domestic Sprint IP
Products and Services:
1. Customer will be charged a *** fixed monthly recurring charge for
each Domestic DS3 Sprint IP Dedicated Port with an individual Order
term of 3 years or longer installed or in service during the Term.
2. Sprint will waive *** of the Domestic DS3 Sprint IP Dedicated Port
installation (non-recurring) charges on Ports installed with an
individual Order term of three years during the
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SPRINT PROPRIETARY INFORMATION
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 4
Agreement No. BSG9811-261
Term. Ports receiving an Installation waiver are subject to a 36 month
continuous use requirement. If Customer disconnects any Port receiving an
installation waiver before the end of the required minimum continuous use
period, Customer must pay Sprint a prorated portion of the waived
installation charges based on the number of months remaining in the period.
3. Sprint will issue Customer a *** credit in the first billing month
following the Commencement Date, a *** credit in the eighteenth billing
month following the Commencement Date and a *** credit in the
thirty-sixth billing month following the Commencement Date.
4. If Sprint terminates this Agreement due to Customer's breach or Customer
terminates this Agreement or ceases to use Products and Services for any
reason whatsoever prior to the expiration of the Term, Customer must pay to
Sprint, in addition to all other charges, a pro-rata portion of all credits
and waivers issued based upon the number of months remaining in the Term,
and, as a result of such termination, no further credits and waivers will
be issued.
5. Orders for Domestic Sprint IP Ports will be accepted at Sprint's sole
discretion.
6. The monthly recurring and installation charges set forth in this subsection
B do not include charges for Local Access Facilities, installation or CPE.
Charges for Local Access Facilities are set forth in Sprint F.C.C. Tariff
No. 8.
7. Customer is not eligible to receive any other promotions, incentives,
discounts, waivers or credits applicable to Domestic Sprint IP Dedicated
Products and Services except as expressly set forth in the Agreement.
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SPRINT PROPRIETARY INFORMATION
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 5
Agreement No. BSG9811-261
ATTACHMENT B
SPRINT IP PRODUCTS AND SERVICES
TERMS AND CONDITIONS
The following terms and conditions govern Sprint's provision of Sprint IP
products and services ("Products and Services") to Customer as specified in the
Order for Data Communication Services form ("Order"). Products and Services
includes equipment, facilities, software or services provided by Sprint, but
does not include certain third party access lines which may be utilized with the
Products and Services. If Products and Services are or become subject to a
tariff filed with the Federal Communications Commission or any other regulatory
institution ("Tariff"), the terms and conditions of such Tariff, including
rates, will govern Customer's use of the Products and Services.
1. TERM
The initial term for the Products and Services ("Initial Term") will be
stated on the Order and will begin on the first day of the month following
the date the Products and Services are installed and available. Upon
expiration, the Initial Term will be automatically extended for successive
one (1) year periods, unless sixty (60) days prior to the end of the
Initial Term or each such extension, either (a) Customer or Sprint provides
written notice to the other that it does not want such extension, or (b)
Customer executes a new Order for Products and Services with a term longer
than one (1) year.
2. PRICES
A. Prices are stated on the Order. Prices (except those subject to Tariff
or Sprint's Rate Escalation Policy) and discount percentages (if
applicable) are fixed for the Initial Term. Thereafter, Sprint will
provide Customer with written notice of increased prices or reduced
discounts, sixty (60) days prior to the effective date of such changes.
In the event of such changes, Customer may terminate the Order without
termination liability by providing written notice to Sprint no later
than thirty (30) days prior to the effective date of such changes,
otherwise Customer will be billed according to the new prices and/or
discounts beginning on the effective date of such changes.
B. Notwithstanding anything contained herein, Sprint may adjust its rates
and charges or impose additional rates and charges on Customer in order
to recover amounts it is required by governmental or quasi-governmental
authorities to collect on behalf of or pay to others in support of
statutory or regulatory programs. Examples of such programs include,
but are not limited to, the Universal Service Fund, the Presubscribed
Interexchange Carrier Charge, and compensation to payphone service
providers for use of their payphones to access Sprint's service.
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Agreement No. BSG9811-261
3. INVOICES AND PAYMENT
The date the Products and Services are installed and available, or the
delivery date specified in the Order, whichever is later, will be the date
on which: (a) all non-recurring charges will be invoiced in full, and (b)
invoicing for all recurring charges will commence. Fixed recurring charges
for partial months will be prorated on a thirty (30) day basis. Payment in
U.S. currency will be due upon receipt of the invoice. Interest charges of
one and three-quarter percent (1-3/4%) per month or the highest rate
permitted by law, whichever is less, will accrue daily on all amounts not
paid within thirty (30) days of the date of the invoice. Customer will pay
all sales and use taxes, as well as duties or levies, on Products and
Services.
4. DELIVERY
Sprint will schedule the delivery of the Products and Services in
accordance with the mutually agreed delivery date specified in the Order.
Sprint will accommodate one Customer requested delay in the delivery date,
provided that: (a) such delay does not exceed thirty (30) calendar days
from the delivery date in the Order, (b) Sprint receives such Customer
requested delay in writing no later than ten (10) days prior to the
original delivery date, and (c) Customer agrees to pay any additional
charges resulting from such delay. If Customer delays delivery of the
Products and Services for more than thirty (30) calendar days beyond the
delivery date specified in the Order, then Sprint will invoice Customer for
all applicable charges for Products and Services effective thirty (30)
calendar days from the original agreed delivery date unless Sprint receives
Customer's written notice to cancel the affected Products and Services on
or before the date which is thirty (30) calendar days from the original
delivery date, subject to Sprint's standard cancellation charges.
5. RESPONSIBILITIES OF SPRINT
A. Sprint will provide, install, operate and maintain the Products and
Services as required in the Order. Sprint will not be responsible for
cabling that connects equipment not provided by Sprint to the Products
and Services.
B. Sprint warrants that Products and Services will be in good working
order and will in all material respects conform to the requirements of
the Order upon the date installed. Customer's sole remedy for
performance or non-performance of Products and Services in accordance
with the terms of the Order will be repair or replacement of the
Products and Services. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
C. The performance guarantees for Sprint's IP Products and Services are
as defined in Exhibit 1 (Availability) and 2 (Delay) (attached and
incorporated into this Agreement).
6. RESPONSIBILITIES OF CUSTOMER
A. Customer will: (i) at its own expense provide all necessary
preparations required to comply with Sprint's installation and
maintenance specifications, (ii) be responsible for the costs of
relocation
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AGREEMENT NO. BSG9811-261
of Products and Services once installed, and (iii) provide to Sprint
and to its suppliers reasonable access to Customer's premises to
perform any acts required by the Order.
B. Customer will properly use the Products and Services. Customer will be
liable for any and all damages to Products and Services located on
Customer's premises excluding reasonable wear and tear, and damages
caused by Sprint. Upon expiration or termination of the Order,
Customer will surrender to Sprint any equipment and other property
owned by Sprint and provided to Customer.
C. Customer will not nor will it permit or assist others to: (i) use
Products and Services for any purpose other than that for which they
are intended, (ii) fail to maintain a suitable environment in
accordance with the manufacturer's specifications, or (iii) alter,
tamper with, adjust or repair the Products and Services. Upon the
occurrence of any of the above, Sprint will be completely released
from any liability or obligation (including any warranty or indemnity
obligation) to Customer relative to the Products and Services; and
Customer will be liable to Sprint for costs or damages incurred by
Sprint resulting therefrom.
D. Customer will not nor will it permit or assist others to abuse or
fraudulently use Products and Services, including but not limited to
the following:
1. Obtaining or attempting to obtain service by any means or device
with intent to avoid payment; or
2. Unauthorized access, alteration, destruction, or any attempt
thereof, of any information of another Sprint customer by any means or
device; or
3. Using Products and Services so as to interfere with the use of
the Sprint network by other customers or authorized users, or in
violation of the law or in aid of any unlawful act; or
4. Using Products and Services in a manner which, in the sole
opinion of Sprint, is not in accordance with generally accepted rules
of Internet conduct as adopted and modified by Sprint.
Upon the occurrence of any of the above, Sprint may suspend its
performance and/or terminate the Order with no further obligation to
Customer.
7. ACCESS CONTROL FEATURES
Sprint offers certain Access Control Features with the Products and
Services which can assist in deterring unauthorized access to Customer's
network. Customer will be responsible for the proper use of Access Control
Features, and Sprint's sole responsibility is to provide and, at Customer's
option, maintain such Access Control Features selected by Customer in
accordance with the Order. However, such Access Control Features may not
completely eliminate unauthorized network access and the resulting charges.
Customer will be solely responsible for any unauthorized access to its
network and any charges incurred as a result thereof.
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8. HARDWARE OR SOFTWARE NOT PROVIDED BY SPRINT
A. Sprint will not be responsible for the installation, operation, or
maintenance of hardware or software not provided by Sprint; nor will
Sprint be responsible for the transmission or reception of information
by such hardware or software.
B. Customer will be responsible for the selection, use and compatibility
of hardware or software not provided by Sprint. In the event that such
hardware or software impairs Customer's use of the Products and
Services, Customer will nonetheless be liable for payment for Products
and Services. Upon notice from Sprint that the hardware or software not
provided by Sprint is causing or is likely to cause hazard,
interference, or service obstruction Customer will eliminate such
hazard, interference, or service obstruction. Sprint reserves the right
to disconnect the Products and Services until such hazard,
interference, or service obstruction is corrected. If requested by
Customer, Sprint may, at its then-current rates, troubleshoot
difficulties caused by hardware or software not provided by Sprint.
C. Sprint will not be responsible if any changes in Products and Services
cause hardware or software not provided by Sprint to become obsolete,
require modification or alteration, or otherwise affect performance of
such hardware or software.
D. If Customer provides its own router to interface with the Products and
Services, then Customer is fully responsible for the installation,
maintenance, and configuration of such Customer-provided router,
however, Sprint will have the right, in cooperation with Customer, to
set the initial configuration for the router interface into the
Products and Services.
9. PROPERTY RIGHTS AND INFORMATION PROTECTION
A. Sprint grants to Customer a non-exclusive and non-transferable license
to use software which may be provided with or included in the Products
and Services for the sole purpose of enabling Customer to use such
Products and Services.
B. Title and property rights to Sprint provided software and equipment are
and will remain with Sprint or its suppliers, whether or not embedded
in or attached to realty. Title and property rights to IP addresses
assigned to Customer by Sprint are and will remain with Sprint.
C. Customer recognizes that Products and Services provided hereunder
constitute valuable trade secrets of Sprint or its suppliers. Customer
will protect any software used by Customer which is provided with or
included in the Products and Services, and will make no attempt to
examine, copy, alter, reverse engineer, tamper with, or otherwise
misuse such software.
D. Customer is prohibited from using the Sprint trade name and any Sprint
trademark or service mark in any fashion without the prior written
consent of Sprint.
E. Information that is identified as proprietary to either party which is
delivered or disclosed to the other party will, for a period ending
three (3) years from the expiration or termination date of the Order,
(i) be held in confidence by the receiving party; (ii) be disclosed
only to those employees or authorized representatives on a need-to-know
basis, and (iii) be used only in fulfillment of the receiving party's
obligations under the Order. Neither party will be liable for the
disclosure or
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Agreement No. BSG9811-261
use of such data or proprietary information which: (a) is, or becomes,
publicly known, other than by breach of this Order; (b) is obtained by
the receiving party form a third party without restriction, (c) is
previously known by the receiving party; (d) is, at any time,
developed by the receiving party completely independent of any
disclosures hereunder; or (e) is required to be released by law.
10. LIMITATION OF LIABILITY
A. In no event will Sprint be liable, either in contract or in tort, for
protection from unauthorized access of Customer's transmission
facilities or Customer premise equipment; or for unauthorized access
to or alteration, theft, or destruction of Customer's data files,
programs, procedure, or information through accident, fraudulent means
or devices, or any other method.
B. Except to the extent caused by the negligence of Sprint, Sprint will
not be liable for claims or damages resulting from or caused by: (i)
Customer's fault, negligence or failure to perform Customer's
responsibilities; (ii) claims against Customer by any other party
(except for claims of copyright or patent infringement as specified
herein); (iii) any act or omission of any other party; or (iv)
equipment or services furnished by a third party.
C. For any claim arising under or related to this Order, Customer's
damages, if any, will be limited to those actually proven as directly
attributable to Sprint, subject to the following limitation: Sprint
will not be liable under any circumstances for any indirect,
incidental or consequential damages, including, but not limited to
lost profits, even if Sprint has been advised of the possibility of
such damages. Sprint's liability for damages to Customer for any cause
whatsoever, regardless of the form of action, and whether in contract
or in tort, including negligence, will be limited to the lesser of
$100,000 or the monthly charges paid for the affected Products and
Services during the preceding twelve (12) months.
11. INDEMNITIES
A. If promptly notified of any action brought against Customer based on a
claim that Sprint provided Products and Services used by Customer
infringe a United States patent or copyright, Sprint will defend such
action at its expense and will pay any and all fees, costs, or damages
that may be finally awarded in such action or resulting settlement. In
the event that a final injunction is obtained against Customer
prohibiting use of Products and Services by reason of infringement of
a United States patent or copyright, Sprint will at its option and
expense either:
1. Procure the right for Customer to continue using the Products and
Services; or
2. Procure alternative Products and Services which furnish
equivalent functionality; or
3. Direct Customer to return such Products and Services to Sprint,
and in such event, the Order relating to such returned Products
and Services will terminate.
B. Sprint will be indemnified and saved harmless by Customer from and
against all loss, liability, damage and expense, including reasonable
counsel fees, caused by:
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1. Negligent acts or omissions of officers, employees, agents, or
contractors of Customer which result in claims and demands for
damages to property or for injury or death to persons, including
payments made under any Worker's Compensation Law or under any
plan for employee's disability or death benefits;
2. Any claims arising from information, data, or messages
transmitted over the network by Customer including, but not
limited to, claims for libel, slander, invasion of privacy,
infringement of copyright, and invasion and/or alteration of
private records or data; and
3. Claims for infringement of patents arising from the use of
hardware and software not provided by Sprint in connection with
Products and Services.
12. DEFAULT/TERMINATION
A. "Default" will mean where Customer becomes subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or liquidation
proceeding; makes an assignment for the benefit of creditors; admits
in writing its inability to pay debts when due; or fails within
fourteen (14) days after written notice to remedy any breach of these
terms and conditions. Upon Default by Customer, Sprint may terminate
and retake possession of Products and Services (before, during, or
after other actions to recover sums hereunder), in which case Customer
will provide Sprint full and free access to Products and Services for
this purpose. Sprint's actions above will not waive Customer's
obligation to pay for all charges due Sprint hereunder as well as any
other damages Sprint may have sustained because of Customer's Default.
B. To terminate Products and Services, Customer must provide Sprint with
thirty (30) days prior written notice. In the event of early
termination of any Order, Customer will pay Sprint the following
"Termination Charges":
1. Business Downturn - A lump sum equal to: (i) all charges for the
Products and Services provided up to the effective date of
termination, (ii) 50% of the fixed monthly charges set forth in
the Order multiplied by the number of months remaining in the
Order term (iii) a pro-rata amount of any credits and waivers
based on the number of months remaining in the Initial Term, and
(iv) any other direct pass-through costs (e.g., local access). A
"Business Downturn" is defined as Customer's closing of a site or
elimination of IP Products and Services at a site (i.e., IP
products and services will not be provided at such site by Sprint
or any other carrier).
2. Other than a Business Downturn - A lump sum equal to 100% of the
fixed monthly charges set forth in the Order multiplied by the
number of months remaining in the Order term.
C. Customer will not be liable for the Termination Charges in this
section if another Sprint product and service of the same or greater
monthly price with a term no less than the remaining months in the
Initial Term, or 1 year, whichever is greater, is ordered at the same
time as the notice of termination is received or the termination is
due to a material failure of Sprint. Customer agrees to provide prompt
written notice to Sprint of any material failure by Sprint to provide
Products and Services. If Sprint fails to cure such failure within a
reasonable time, Customer may terminate the affected Products and
Services on 30 days' written notice to Sprint
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without further liability, except for Customer's obligation to pay for
all charges due Sprint for Products and Services provided through the
date of such termination. A material failure by Sprint shall not
include a failure caused by the local exchange carrier, Customer
premise equipment, Customer nor any other failure caused by
circumstances not within the sole control of Sprint.
13. GENERAL
A. Customer will not assign or transfer the Order without the prior
written consent of Sprint. Sprint may, however, assign the Order to
its parent company or an affiliate with thirty (30) days notice.
B. Sprint will not be responsible for performance of its obligations
hereunder where delayed or hindered by war, riots, embargoes,
strikes, (whether of Sprint or others), casualties, accidents, or
other occurrences beyond Sprint's control. Sprint will notify Customer
in the event of any of the foregoing occurrences. Should such
occurrence continue for more than sixty (60) days, Sprint or Customer
may cancel the affected Products and Services with no further
liability.
C. The provision of Products and Services hereunder is subject to
Sprint's continuing approval of Customer's credit-worthiness. Customer
will furnish financial information as Sprint may from time to time
reasonably request to determine Customer's credit-worthiness.
D. Any disputes or claims arising out of or related to the Order will be
brought within one (1) year of the occurrence.
E. These terms and conditions may not be modified except by written
amendment by the parties. No agent, employee, or representative of
Sprint or Customer has authority to bind the parties to any
representation or warranty unless such is specifically included in
these terms and conditions, the Order, or written amendments thereto.
F. Notice to the parties of disputes arising under the Order will be sent
by registered mail to the parties to the address shown on the most
recent Order. All other notices may be sent by regular mail.
G. The parties will attempt to resolve all disputes arising out of or
related to this Order through good faith negotiations. In the event
that the parties cannot reach an agreement, any dispute arising out of
or relating to this Order will be finally settled by arbitration in
accordance with the rules of the American Arbitration Association. The
arbitration will be governed by the United States Arbitration Act, 9
U.S.C. Sec. 1, et. seq., and judgment upon the award rendered by the
arbitrator(s) may be entered by any court with jurisdiction. The
arbitration will be held in the Kansas City, MO metropolitan area.
H. The Order, including these terms and conditions, will be construed and
enforced in accordance with, and the validity and performance hereof
will be governed by, the laws of the state of Kansas.
Web Side Story - IP Terms and Conditions, Attachment B January 28, 1999
(7 OF 8)
SPRINT PROPRIETARY INFORMATION
<PAGE> 12
Agreement No. BSG9811-261
I. The Order consists only of the document upon which the parties have
affixed their signatures, these terms and conditions and those
documents specifically incorporated herein by reference. The Order as
so constituted is the entire agreement between the parties with
respect to the subject matter hereof. No modification, alteration or
waiver of any provision hereof will be binding upon the parties unless
evidenced in writing and signed by both parties.
Web Side Story - IP Terms and Conditions, Attachment B January 28, 1999
(8 of 8)
SPRINT PROPRIETARY INFORMATION
<PAGE> 13
Agreement No. BSG9811-261
ORIGINAL
ATTACHMENT C
ADDENDUM TO
SPRINT IP PRODUCTS AND SERVICES
TERMS AND CONDITIONS
ADDITIONAL TERMS AND CONDITIONS FOR
INTERNET SERVICE PROVIDERS
In addition to the Sprint IP Products and Services Terms and Conditions, the
following terms and conditions will govern Sprint's provision of such Products
and Services to an Internet service provider ("Service Provider"). Customer
will be considered a Service Provider if Sprint determines that Customer's
primary business is to resell Internet access, including the sale of dedicated
Internet connections or SLIP/PPP dial-up connections to others, as these require
that an IP network, subnet, or host number be assigned to the end-user. As a
Service Provider, Customer will be Internet-knowledgeable and capable of
independently configuring TCP/IP communications, applications, and routing
software in their local network environments.
1. Connection Equipment -- The equipment required for connection to the
Products and Services consists of the following: IP Router, Channel Service
Unit (CSU), Data Service Unit (DSU) or DS3-DSU, and a Inverse Multiplexer.
Specific requirements regarding connection equipment for Service Providers
are listed below.
a. Service Provider will provide its own IP Router.
b. Service Provider will install, maintain, configure, and manage the IP
Router hardware and software.
c. Service Provider will configure its local network environment and
applications. This includes, but may not be limited to, installation
and configuration of Internet servers for Mail, News, and the Domain
Name System (DNS).
d. At the option of Service Provider, either Sprint or Service Provider
will provide the CSU/DSU or DS3-DSU. Sprint will always provide the
Inverse Multiplexer.
e. If Sprint provides the CSU/DSU, then the service demarcation point
will be such CSU/DSU. If Service Provider provides the CSU/DSU, then
the service demarcation point is the LEC provided Smartjack or
equivalent at the Service Provider's location.
f. Sprint will maintain the Products and Services pursuant to the Sprint
IP Terms and Conditions, however Service Provider will be responsible
for resolving problems which are isolated to the IP Router, CSU/DSU
(if provided by Service Provider) or its local network environment and
applications.
Web Side Story - IP Terms Addendum, Attachment C December 4, 1998
(1 of 4)
SPRINT PROPRIETARY INFORMATION
<PAGE> 14
Agreement No. BSG9811-261
2. Routing Configurations -- The routing configuration supported by the
Products and Services differs based on whether Service Provider's network
is single-homed (e.g. only one connection to the Products and Services) or
multi-homed (e.g. more than one connection to the Products and Services, or
one connection to the Products and Services and an alternate connection to
another entity providing access to the Internet).
a. If Service Provider's network is single-homed, then Sprint will
configure a fixed list of static routes during service implementation
to support routing of Service Provider's network number(s). Service
Provider will configure the proper static routes on the IP Router for
connection to the Products and Services. Additionally, Service
Provider will configure the routing within its local network
environment.
b. If Service Provider's network is multi-homed, then Sprint will
configure dynamic routing during service implementation to support
routing of Service Provider's network number(s). This requires that
Service Provider have an Internet Autonomous System (AS) number (see
Section 3 below entitled "Internet Registration" for additional
information regarding AS numbers). Sprint will use Border Gateway
Protocol Version 4 ("BGP-4") dynamic routing protocol for multi-homed
configurations. Service Provider will configure BGP-4 on the IP Router
for connection to the Products and Services. Service Provider will
configure the routing within its local network environment.
NOTE: Sprint reserves the right to configure dynamic routing for
single-homed configurations when routing changes are requested on a regular
or frequent basis.
3. Internet Registrations - There are several registrations required for an
Internet connection. These include an Internet Network Number, an Internet
Domain Name, and if applicable an Autonomous System (AS) number (i.e.
required for multi-homed environments only). Sprint will perform these
Internet registrations on behalf of a Service Provider as specified below:
a. Internet Network Number (e.g. IP Addresses) Registration - Sprint will
assign Service Provider one or more Class C Internet Network Numbers
during implementation of the Products and Services. When more than one
Class C Internet Network Number is required, Sprint will assign a
block of contiguous Class C Internet Network Numbers, subject to
Sprint's then current address assignment policies.
b. Domain Name Registration - Sprint will register a domain name for
Service Provider during implementation of the Products and Services.
Service Provider will provide Sprint with the domain name they wish to
have registered at the time the Products and Services are ordered.
Service Provider will be fully responsible for the registration of
domain names for its customers.
c. Autonomous System Number Registration - If Service Provider's network
environment is multi-homed, Sprint will, during implementation of the
Products and Services, obtain an Autonomous System (AS) number on
behalf of Service Provider unless Service Provider already has such an
AS number.
Web Side Story - IP Terms Addendum, Attachment C December 4, 1998
(2 of 4)
PROPRIETARY INFORMATION
<PAGE> 15
Agreement No. BSG9811-261
4. Domain Name Service (DNS) - Each user of Sprint IP Products and Services
which registers an Internet domain name must provide at least two name
servers for the domain: a primary DNS, and a secondary DNS for backup
purposes. Requirements regarding DNS for Service Provider are listed below:
a. Service Provider will provide primary DNS for their own domain, and
primary DNS for each of its customers' domains (if required).
b. Sprint will provide secondary DNS for Service Provider's domain only.
c. Service Provider will provide secondary DNS for each of its customers'
domains.
5. Trouble Reporting and Problem Resolution - Once the Products and Services
have been implemented, Service Provider will follow standard Sprint trouble
reporting procedures. Sprint's Service Management Center (SMC is Service
Provider's single point of contact for resolving troubles with the Products
and Services once initial implementation has been completed. Sprint's SMC
is available twenty-four hours per day, seven days per week. Specific
restrictions regarding SMC support for Service Providers are listed below:
a. Service Provider will resolve troubles within its local network and
application environment. Service Provider will be responsible for all
trouble resolution services to its own customers.
b. Sprint SMC will only accept trouble calls from Service Provider. The
SMC has no responsibility towards Service Provider's customers, and
will not accept calls from Service Provider's customers. When Service
Provider places a trouble call to the SMC, the following information
will be provided:
Name and Telephone Number of Service Provider
Name and Telephone Number of Service Provider's affected customer
Hours of Availability
Name of person with the authority to close trouble ticket
Network Address of IP Router experiencing trouble
IP Address of IP Router experiencing trouble
Description of trouble
6. Other Terms and Conditions
a. This Order does not constitute or create a joint venture, pooling
arrangement, partnership, agency or formal business organization of
any kind. Sprint and Service Provider will be
Web Side Story - IP Terms Addendum, Attachment C December 4, 1998
(3 of 4)
SPRINT PROPRIETARY INFORMATION
<PAGE> 16
Agreement No. BSG9811-261
independent contractors with each other for all purposes at all times
and neither party will act as or hold itself out as agent for the
other or create or attempt to create liabilities for the other party.
b. This Order is made solely for the benefit of the parties hereto and,
except for permitted successors and assigns, confers no rights,
duties, powers or privileges to any party who is not signatory hereto.
c. All customers of Service Provider will look solely to Service Provider
for its remedies under its agreement with Service Provider. Such
customers are not a third party beneficiary under any agreement
between Sprint and Service Provider.
d. Notwithstanding Sprint's provision of Products and Services to Service
Provider for use by its customers, Service Provider will remain liable
for its customer's compliance with the terms and conditions of this
Order. Failure of a Service Provider customer to comply with the terms
and conditions of the Order will be deemed to be a breach of this
Order by Service Provider.
e. Failure of Service Provider to comply with any of the terms of this
Section will be deemed a material breach of the Order.
Web Side Story - IP Terms Addendum, Attachment C December 4, 1998
(4 of 4)
SPRINT PROPRIETARY INFORMATION
<PAGE> 17
ATTACHMENT D
DOMESTIC SPRINT INTERNET AND INTRANET ("IP"') PRODUCTS AND SERVICES
PORT AVAILABILITY SERVICE LEVEL AGREEMENT ("SLA")
PERFORMANCE GUARANTEE
This performance guarantee measures the percentage of time a Port is available
for Customer's use.
1. COMMITTED PORT AVAILABILITY.
Sprint will maintain the following monthly Port availability, as
applicable, or Sprint will provide Customer the remedies described in
Section 3.
(A) END-TO-END PORT AVAILABILITY.
(1) Sprint-Provided Enhanced Metropolitan-Area SONET Access. Sprint
will maintain 100% end-to-end Port availability ("Committed Port
Availability") for each Port that utilizes Sprint-provided
enhanced metropolitan-area SONET access.
(2) Sprint-Provided Non-Enhanced Metropolitan-Area SONET Access or
Dedicated Local Access. Sprint will maintain 99.90% or greater
end-to-end Port availability ("Committed Port Availability") for
each Port that utilizes Sprint-provided non-enhanced
metropolitan-area SONET access or dedicated local access.
(B) POP-TO-POP PORT AVAILABILITY
Sprint will maintain 100% percent POP-to-POP Port Availability
("Committed Port Availability") for each Port that utilizes
Customer-provided local access.
2. PORT AVAILABILITY CALCULATION
2.1 Calculation. Port availability is calculated monthly as follows:
(24 Hours x Days in Month ) - Port Outage Time (hours) Port
------------------------------------------------------ = Availability
(24 Hours x Days in Month)
2.2 Components Included in Port Availability. Port availability is
calculated based on the performance of:
(A) all IP Network components; and
(B) Sprint-provided local access facilities used to access the IP
Network.
2.3 Outage Time. Excluding outages caused by the factors listed below,
outage time ("Outage Time") is the total time in a month that a
Customer's Port is unable to transmit or receive High Level Data Link
Control ("HDLC") traffic. Outage Time is measured from the time Sprint
opens a
IP Port Availability Performance Guarantee Rev. 10/23/98
1
Sprint Proprietary Information
<PAGE> 18
trouble ticket to the time a problem is repaired. Outage Time does
not include outages of less than 60 seconds duration, or time
attributed to Customer's delay in responding to Sprint's requests for
assistance to repair an outage. Outage Time will not include outages
caused by:
(A) failure of any component not included in subsection 2.2 above;
(B) failure of Customer-provided local access facilities used to
access the Sprint IP Network;
(C) scheduled maintenance from 12:00 A.M. - 6:00 A.M., Local time at
site, Mondays for Internet, Wednesdays for Intranet. Refer to
http://www.sprintlink.net for current schedule;
(D) failure of any components beyond the 1P side of a
network-to-network interface ("NNI");
(E) failure of any components on the Frame Relay side of an IP-Frame
Relay Gateway Service or the ATM side of an IP-ATM Gateway
Service;
(F) failure of any components that Sprint cannot correct because
Customer is inaccessible;
(G) troubles resolved as "No Trouble Found";
(H) force majeure events;
(I) Customer's negligence or willful misconduct or the negligence or
willful misconduct of others authorized by Customer to use the IP
Products and Services; or
(J) lateral Exchange Network Service.
3. PORT AVAILABILITY REMEDY
If Customer believes that Sprint has failed to meet its Committed Port
Availability, Customer must contact its Sprint Account Manager. Upon
Sprint's verification that the actual Port availability is below the
Committed Port Availability, Sprint will issue a service credit ("Service
Credit") to Customer. The Service Credit will equal the applicable
percentage from the table below multiplied by the monthly recurring charges
for the affected Port in the applicable month. Monthly Service Credits will
not exceed the limits in Section 4.
<TABLE>
<CAPTION>
Total Monthly Outage Time Service Credit Percentage
<S> <C>
Less than or equal to 1 hour 5%
Greater than one hour 10%
</TABLE>
4. MAXIMUM SERVICE CREDITS.
4.1 Monthly Service Credit. Service Credits issued in any month for a Port
under this or any other IP performance guarantee under this Agreement
will not exceed 10% of the monthly recurring charges for the affected
Port.
4.2 Yearly Service Credit. Service Credits issued during a Contract Year
under this or any other performance guarantee under this Agreement
will not exceed 20% of Customer's total IP Products and Services
invoiced during the Contract Year.
5. APPLICABILITY
This performance guarantee applies to new IP Customers on or after
10/23/98, or existing IP Customers that extend the Term of their existing
IP Agreement.
IP Port Availability Performance Guarantee Rev. 10/23/98
2
Sprint Proprietary
<PAGE> 19
ATTACHMENT E
DOMESTIC SPRINT INTERNET AND INTRANET ("IP") PRODUCTS AND SERVICES
NETWORK DELAY SERVICE LEVEL AGREEMENT ("SLA")
PERFORMANCE GUARANTEE
This performance guarantee measures the time it takes for data to cross the IP
Network.
1. COMMITTED NETWORK DELAY.
1.1 Sprint's Commitment. Sprint will maintain the following average
one-way POP-to-POP network delay ("Committed Network Delay") for its
IP Networks, or Sprint will provide Customer the remedies described in
Section 3.
<TABLE>
<S> <C>
Committed Internet Network Delay Committed Intranet Network Delay
Less than or equal to 75 milliseconds (ms) Less than or equal to 60 milliseconds (ms)
</TABLE>
1.2 Customer Requirements. Both end-point Sprint Access Nodes must be
located within the 48 contiguous United States or the District of
Columbia.
2. AVERAGE NETWORK DELAY CALCULATION.
Average Network Delay is calculated by using Sprint-initiated PING Tests,
as follows:
2.1 Calculations.
2.1.1 Calculation for Dial IP Delay. POP-to-POP one-way delay is
the time it takes for a Sprint generated PING to go from a
Sprint Rotary to a Sprint PING server at the Sprint Access
Node to which Customer's IP site is connected. The
performance guarantee is based on the monthly average delay
response times for the Sprint-initiated PING Tests at 10
Customer-selected Dial Access Sites. The calculation is as
follows:
Sum of One-way Delays (Internet or Intranet Networks)
for 10 Customer Selected Rotaries Average
------------------------------------------------------ = Network
10 Delay
2.1.2 Calculation for Dedicated Internet Network Delay. POP-to-POP
one-way delay is the time it takes for a Sprint-generated
PING to go one-way between two Sprint Access Nodes to which
Customer's IP sites are connected. The calculation is based
on the monthly average delay response time for the
Sprint-initiated PING Tests.
2.2 Definitions. The following definitions are used in this SLA:
(A) Rotary - means the NPA-NYX-XXXX number dialed by Customer modems
to access Sprint's IP Networks.
IP Busy-Free Performance Guarantee Rev. 10/23/98
1
Sprint Proprietary Information
<PAGE> 20
(B) Sprint Access Node - means Sprint-owned facilities connected by
SONET long-distance fiber lines that collectively form Sprint's
IP Networks.
2.3 PING Test Parameters. The PING Test parameters are:
(A) the PING type is IP ICMP;
(B) the PING size is 64 bytes;
(C) the number of PINGs is 5 PINGs every hour for an entire calendar
month; and
(D) PING time-outs shall equal 1 second (1000 milliseconds).
2.4 Components Included in Average Network Delay. Subject to the
exceptions listed in subsection 2.5, Average Network Delay is
calculated based on the performance of:
(A) all IP Networks Components; and
(B) rotaries.
2.5 Components Excluded From Average Network Delay. Average Network Delay
does not include delays caused by:
(A) any components not included in subsection 2.4 above;
(B) failure of any components beyond the IP side of a
network-to-network interface (NNI);
(C) failure of any components on the Frame Relay side of an IP-Frame
Relay Gateway Service or the ATM side of an IP-ATM Gateway
Service;
(D) Customer's negligence or willful misconduct or the negligence or
willful misconduct of others authorized by Customer to use the IP
Products and Services;
(E) force majeure events;
(F) scheduled maintenance from 12:00 A.M. - 6:00 A.M., Local time at
site, Mondays for Internet, Wednesdays for Intranet. Refer to
http://www.sprintlink.net for current schedule;
(G) Sprint-operated modems and Sprint Domain Name Servers ("DNS"); or
(H) any components operated by an Internet Service Provider or a
network operator other than Sprint.
3. AVERAGE NETWORK DELAY REMEDY
If Customer believes that Sprint has failed to meet its Committed Network
Delay, Customer must contact its Sprint Account Manager. Upon Sprint's
verification that the actual average network delay in a month is greater
than the Committed Network Delay, Sprint will issue a service credit
("Service Credit") to Customer. The Service Credit will equal 10% of the
monthly recurring charge for the affected IP Port in the applicable month,
not to exceed the limits in Section 4.
4. MAXIMUM SERVICE CREDITS
4.1 Monthly Service Credit. Service Credits issued in any month for a
particular Port under this or any other IP performance guarantee under
this Agreement will not exceed 10% of the monthly recurring charges
for the affected Port.
4.2 Yearly Service Credit. Service Credits issued during a Contract Year
under this or any other performance guarantee under this Agreement
will not exceed 20% of Customer's total IP Products and Services
invoiced during the Contract Year.
IP Busy-Free Performance Guarantee Rev. 10/23/98
2
Sprint Proprietary Information
<PAGE> 21
5. APPLICABILITY
This performance guarantee applies to new IP Customers on or after
10/23/98, or existing IP Customers that extend the Term of their existing
Agreement.
IP Busy-Free Performance Guarantee Rev. 10/23/98
3
Sprint Proprietary Information
<PAGE> 1
* Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
EXHIBIT 10.8
ATMNET -- SAN DIEGO
ATMNET, INC Phone 619-643-1809
5440 Morehouse Dr. #3700 Fax 619-643-1801
San Diego, CA 92121 www.atmnet.net
QUOTE FOR WEB SIDE STORY, PRICING ACCURATE FOR THIRTY (30) DAYS FROM 12/16/97.
Engineering services @ $175 per hour: 8 hour minimum ($1,400) to include:
- ASN Registration
- RADB Registration
- BGP Configuration on Cisco 4700 and Cisco 7200
- LAN Reconfiguration
HARDWARE UPGRADE
- --------------------------------------------------------------------------------
ITEM PRICE
- --------------------------------------------------------------------------------
Cisco 4700 64MB Main Field Memory Upgrade $3,420.00
- --------------------------------------------------------------------------------
<PAGE> 2
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 1
SERVICE DATE AND PLANNED SERVICE DATE. The Service Date shall be the date any
ATMnet Services ordered under this Agreement are first available for use by
Customer. The Planned Service Date shall be the date set forth on the first
page of this agreement.
INITIAL TERM. The Initial Term shall be for the months shown on the Agreement,
beginning on the Service Date.
RENEWAL. The Agreement shall renew automatically for additional 12 month terms
unless notification of non-renewal is provided by either party not less than 30
days prior to the expiration of the Initial Term or renewal period.
PRICE CHANGES. ATMnet reserves the right to change its prices at any time by
giving 30 days prior notice to customer. Customer may elect not to accept any
increase in price, at which time ATMnet may decide, at its sole discretion, to
cancel this Agreement and terminate service.
CANCELLATION. The Agreement is cancelable by Customer payment of all fees due
for the remainder of the Initial Term, or if the Agreement has been renewed,
for the renewal period.
PAYMENT. Initial Fees are payable in advance of order. Monthly Fees will be
billed monthly in advance beginning one month from the Service Date. Payment of
Monthly Fees are due upon receipt of invoice, and are delinquent if not
received within 15 days. Any Fees not received 30 days from date of invoice are
subject to a late charge of 1 1/2% per month. In the event ATMnet instigates
any legal action to collect any sums owed by customer, ATMnet shall be entitled
to an award of reasonable attorney fees and costs incurred by ATMnet in
connection with such legal action, if a judgment in ATMnet's favor is entered
in the legal action.
TAXES. Customer agrees to pay any sales, use, gross receipts, excise, access,
bypass or other local, state and Federal taxes or charges, imposed on or based
upon the provision, sale or use of the ATMnet Services.
INTERRUPTION OF SERVICES AND CANCELLATION FOR NONPAYMENT. Service may be
interrupted if any fees are delinquent, or if Customer engages in any conduct
or activities which ATMnet in its sole discretion believes breaches any of the
terms of this Agreement. An interruption of service does not relieve Customer
of its obligation to continue to pay monthly fees. This Agreement is cancelable
by ATMnet if Customer fails to pay any amount payable under this Agreement on
the date that such amount is due and payable.
ASSIGNMENT. Customer shall not, without prior written consent of ATMnet, which
shall not be unreasonably withheld, assign, transfer or in any other manner
dispose of, any of its rights, privileges, or obligations under this Agreement.
CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense undertake
all necessary preparations to comply with ATMnet's installation instructions.
If Customer is not ready to accept ATMnet Services 30 days after the Planned
Service Date, ATMnet may begin billing Monthly Fees using the Planned Service
date as the Service Date. Customer is responsible for the use, comparability
and maintenance of all Customer owned equipment.
ADDITIONAL EQUIPMENT. If ATMnet provides equipment (whether owned, leased, or
rented by ATMnet) to Customer in connection with the Services provided under
this Agreement ("ATMnet Equipment"), the terms and conditions of ADDENDUM 1
(ATMnet Equipment on Customer Premises") shall apply to such equipment. If
Customer arranges for equipment (whether owned leased or rented by Customer) to
be placed on ATMnet premises ("Customer Equipment") in connection with the
services provided under this Agreement, the terms and conditions of ADDENDUM 2
(Customer Equipment on ATMnet Premises") shall apply to such equipment.
LETTER OF AGENCY (LOA). By executing the Letter Of Agency attached as Schedule
2, Customer hereby authorizes ATMnet to act on its behalf with Local Exchange
Carriers and others for the provisioning of local access required as part of
the ATMnet Services. This LOA shall remain in effect until canceled by Customer
in writing.
ACCEPTABLE USE. ATMnet Services shall only be used by Customer for lawful
purposes consistent with generally recognized business practices. Without
limiting the foregoing, as long as ATMnet is supplying services to Customer.
Customer represents and warrants the Customer shall not use the services in a
manner (i) which results in any transmission of market in violation of any
international, federal, state or legal law or regulation; (ii) which would in
any way violate or infringe upon any party, privacy right, right of publicity,
or any other right of any person or entity; or (iii) to display, transmit or
store material which is unlawful, harmful, abusive, hateful, obscene,
threatening, libelous or defamatory. Customer further warrants and represents
that its use and access of other networks through ATMnet will comply with all
applicable laws, regulations and conventions, including those related to
privacy, international communications and exportation of technical or personal
data.
DISCLAIMER; COMPLIANCE. Customer acknowledges that ATMnet does not and cannot
control the content, quality or accuracy of information available through its
system or over the Internet in general, and any use of such information is at
Customer's own risk. By using ATMnet's services, Customer agrees to comply with
the terms and conditions stated herein, or otherwise generally provided by
ATMnet to Customer from time to time.
DOMAIN NAMES. At Customer's request ATMnet will assist customer in obtaining and
maintaining the domain name(s) used by Customer in connection with the Services.
Customer acknowledges and agrees that the domain name(s) are subject to the
policies and procedures of the Internet Assigned Numbers Authority ("IANA"), the
Internet Ad Hoc
ATMNET IS A REGISTERED SERVICE MARK o http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 o SAN DIEGO CA 92121-1798 o 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 3
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 2
Committee ("IAHC") and the registrar issuing the domain name(s). Customer
agrees to pay all fees charged by the issuing registrar relating to such domain
name(s). Customer acknowledges that ATMnet is not responsible for the actions
taken by IANA, IAHC or the issuing registrar and, therefore, ATMnet makes no
representations or warranties regarding: (i) the ability to obtain or to
continue to use any particular domain name, or (ii) the ability to resolve any
domain name into its associated Internet Protocol ("IP") address(es).
IP ADDRESSES. At Customer's request ATMnet will allocate IP addresses to
Customer from its Classless Inter Domain Routing ("CIDR") address blocks for
Customer's use solely in connection with the Services, and only for the Initial
Term of the Agreement and any renewal periods. Customer acknowledges and agrees
that the IP addresses are subject to the policies and procedures of the
Internet Assigned Numbers Authority ("IANA"), and the registrar authorizing the
use of the IP addresses by ATMnet. Customer agrees to pay all fees charged by
the issuing registrar relating to such IP addresses. Allocation of IP addresses
to Customer shall be made in a manner consistent with the policies of IANA, the
Internet Engineering Task Force ("IETF"), and the issuing registrar. Customer
acknowledges that ATMnet is not responsible for the actions taken by IANA,
IETF, the issuing registrar or other network operators and therefore, ATMnet
makes no representations or warranties regarding: (i) the ability to obtain or
to continue to use any particular IP addresses, or (ii) the routability of any
IP addresses. Customer's use of IP addresses allocated to Customer by ATMnet
shall cease within 90 days of the termination of this Agreement.
NO WARRANTY. ATMnet Services and ATMnet Equipment are provided on an "as is"
and "as available" basis without warranties of any kind, either express or
implied, including but not limited to warranties of title, noninfringement or
implied warranties of merchantability or fitness for a particular purpose. No
advice or information given by ATMnet or its affiliates shall create a
warranty. Neither ATMnet nor its affiliates warrants that the service will be
uninterrupted or error free or that any information, software or other material
accessible on the service is free of harmful components.
LIMITATION OF LIABILITY. Under no circumstances shall ATMnet or its affiliates
be liable for any direct, indirect, incidental, special, punitive or
consequential damages that result in any way from the use of or inability to
use ATMnet Services, or Customer's reliance on or use of information, services
or merchandise provided on or via ATMnet Services, or that result from
mistakes, omissions, interruptions, deletion of files, errors, defects delays
in operation, or transmission, or any failure of performance.
INDEMNITY. Customer agrees to defend, indemnify and hold ATMnet and its
affiliates harmless from any and all liabilities, costs and expenses, including
reasonable attorney's fees, settlement payments and any damages awarded related
to or arising from: (1) any breach of this Agreement by Customer or its
affiliates; (2) the use of ATMnet Services or the placement or transmission of
any message, information, software or other materials on any other network
connected to ATMnet; (3) any damages caused by Customer Equipment; (4)
negligent acts or omissions of Customer or its affiliates in connection with
the construction, installation, maintenance, presence, use or removal of
systems, channels, equipment or software not provided by ATMnet which are
connected or are to be connected to ATMnet Services: and (5) claims for
infringement arising from the use of equipment and software, apparatus and
systems not provided by ATMnet.
DISPUTES. This Agreement shall be governed by and construed in accordance with
the laws of the state of California without application of the principles of
conflict of laws. The parties consent to and submit to the exclusive
jurisdiction of the federal and state courts located in San Diego, California.
NOTICE. All notices to a party under this Agreement will be in writing and will
be sent by registered or certified mail, return receipt requested, or delivered
by hand, by overnight courier or by telecopier to such party's place of
business as noted on page 1 of this Agreement, or to such other address as may
be designated in writing by either party in accordance with this section.
Notices are effective upon receipt.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
whether oral, written or implied, and may only be modified in writing.
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 - 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 4
ATMNET SERVICES AGREEMENT
This agreement for ATMNET Services (this Agreement) is entered into by and
between ATMNET, a California corporation (ATMNET) and Customer, and is bound by
the following provisions and by the Terms and Conditions attached hereto and
incorporated herein by this reference.
- -------------------------------------------------------------------------------
Customer: Web Side Story Location:
- -------------------------------------------------------------------------------
6450 Lusk Boulevard, Suite E206
------------------------------------- -----------------------
San Diego, CA 92121
------------------------------------- -----------------------
- --------------------------------------------------------------------------------
Contact: Blaise Barrelet Phone: 619-546-0040 Contact: Phone:
- --------------------------------------------------------------------------------
Fax: 619-546-0480 Email: Fax: Email
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Schedule of ATMNET Services to be provided Initial Fees Monthly Fees
- --------------------------------------------------------------------------------
Cisco 4700 Router Chassis with AC power $7650
- --------------------------------------------------------------------------------
IP Software $1530
- --------------------------------------------------------------------------------
Ethernet 6-ports $5400
- --------------------------------------------------------------------------------
ATM DS-3 1-port $11,250
- --------------------------------------------------------------------------------
4700 SmartNet Maintenance $1250
- --------------------------------------------------------------------------------
California Sales Tax on hardware (7.75%) $2,001.83
- --------------------------------------------------------------------------------
Totals $29,081.83
----------------------------------------
- --------------------------------------------------------------------------------
PLANNED SERVICE DATE: June 1, 1997 TERM: __ months TOTAL DUE IN ADVANCE: $0
- --------------------------------------------------------------------------------
EFFECTIVE DATE OF AGREEMENT: May 22, 1997 INSTALLATION AND FIRST MONTH DUE
WITH ORDER
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Special Instructions:
Terms: COD
- --------------------------------------------------------------------------------
Customer ATMNET
- -------- ------
by: /s/ BLAISE P. BARRELET Date 5/23 by: /s/ CLARK BURKE Date 5-22-97
--------------------------------- ----------------------------------
its: President/CEO its: Account Executive
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 - 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 5
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 1
SERVICE DATE AND PLANNED SERVICE DATE. The Service Date shall be the date any
ATMnet Services ordered under this Agreement are first available for use by
Customer. The Planned Service Date shall be the date set forth on the first
page of this agreement.
INITIAL TERM. The Initial Term shall be for the months shown on the Agreement,
beginning on the Service Date.
RENEWAL. The Agreement shall renew automatically for additional 12 month terms
unless notification of non-renewal is provided by either party not less than 30
days prior to the expiration of the Initial Term or renewal period.
CANCELLATION. The Agreement is cancelable by Customer at any time upon ten (10)
days notice to ATMnet and upon payment of all fees due for the remainder of the
Initial Term, or if the Agreement has been renewed, for the renewal period, in
accordance with the terms on the cover sheet of this Agreement.
PAYMENT. Initial Fees are payable in advance of order, Monthly Fees will be
billed monthly in advance beginning one month from the Service Date. Payment of
Monthly Fees are due upon receipt of invoice, and are delinquent if not
received within 15 days. Any Fees not received 30 days from date of invoice are
subject to a late charge of 1 1/2% per month. In the event ATMnet instigates
any legal action to collect any sums owed by customer, ATMnet shall be entitled
to an award of reasonable attorney fees and costs incurred by ATMnet in
connection with such legal action, if a judgment in ATMnet's favor is entered
in the legal action.
TAXES. Customer agrees to pay any sales, use, gross receipts, excise, access,
bypass or other local, state and Federal taxes or charges, imposed on or based
upon the provision, sale or use of the ATMnet Services, excluding any taxes
levied on ATMnet's income.
INTERRUPTION OF SERVICES AND CANCELLATION FOR NONPAYMENT. Service may be
interrupted if any fees are delinquent, or if Customer engages in any conduct
or activities which ATMnet believes constitute a material breach of any of the
material terms of this Agreement. An interruption of service does not relieve
Customer of its obligation to continue to pay monthly fees. This Agreement is
cancelable by ATMnet upon thirty (30) days written notice if Customer fails to
pay any amount payable under this Agreement on the date that such amount is due
and payable.
ASSIGNMENT. Customer may assign this Agreement in connection with a corporate
reorganization, acquisition, or merger. Subject to the foregoing, Customer
shall not, without prior written consent of ATMnet, which shall not be
unreasonably withheld, assign, transfer or in any other manner dispose of, any
of its rights, privileges, or obligations under this Agreement.
CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense undertake
all necessary preparations to comply with ATMnet's installation instructions.
If Customer is not ready to accept ATMnet Services 30 days after the Planned
Service Date, ATMnet may begin billing Monthly Fees using the Planned Service
date as the Service Date. Customer is responsible for the use, compatibility
and maintenance of all Customer owned equipment.
ADDITIONAL EQUIPMENT. If ATMnet provides equipment (whether owned, leased, or
rented by ATMnet) to Customer in connection with the Services provided under
this Agreement ("ATMnet Equipment"), the terms and conditions of ADDENDUM 1
(ATMnet Equipment on Customer Premises") shall apply to such equipment. If
customer arranges for equipment (whether owned leased or rented by Customer) to
be placed on ATMnet premises ("Customer Equipment") in connection with the
services provided under this Agreement, the terms and conditions of ADDENDUM 2
(Customer Equipment on ATMnet Premises") shall apply to such equipment.
ACCEPTABLE USE. ATMnet Services shall only be used by Customer for lawful
purposes consistent with generally recognized business practices.
DISCLAIMER; COMPLIANCE. Customer acknowledges that ATMnet does not and cannot
control the content, quality or accuracy of information available through its
system or over the Internet in general, and any use of such information is at
Customer's own risk. By using ATMnet's services, Customer agrees to comply with
the terms and conditions stated herein, or otherwise generally provided in
writing by ATMnet and agreed to, in writing, by Customer from time to time.
DOMAIN NAMES. At Customer's request ATMnet will assist customer in obtaining and
maintaining the domain name(s) used by Customer in connection with the Services.
Customer acknowledges and agrees that the domain name(s) are subject to the
policies and procedures of the Internet Assigned Numbers Authority ("IANA"), the
Internet Ad Hoc Committee ("IAHC") and the registrar issuing the domain name(s).
Customer agrees to pay all fees charged by the issuing registrar relating to
such domain name(s). Customer acknowledges that ATMnet is not responsible for
the actions taken by IANA, IAHC or the issuing registrar and, therefore, ATMnet
makes no representations or warranties regarding: (i) the ability to obtain or
to continue to use any particular domain name, or (ii) the ability to resolve
any domain name into its associated Internet Protocol ("IP") address(es).
IP ADDRESSES. At Customer's request ATMnet will allocate IP addresses to
Customer from its Classless Inter Domain Routing ("CIDR") address blocks for
Customer's use solely in connection with the Services, and only for the Initial
Term of the Agreement and any renewal periods. Customer acknowledges and agrees
that the IP addresses are subject to the policies and procedures of the
Internet Assigned Numbers Authority ("IANA"), and the registrar authorizing the
use of the IP addresses by ATMnet. Customer agrees to pay all fees
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 6
INTERNET SERVICES TERMS AND CONDITIONS
PAGE 2
charged by the issuing registrar relating to such IP addresses. Allocation of
IP addresses to Customer shall be made in a manner consistent with the policies
of IANA, the Internet Engineering Task Force ("IETF"), and the issuing
registrar. Customer acknowledges that ATMnet is not responsible for the actions
taken by IANA, IETF, the issuing registrar or other network operators and,
therefore, ATMnet makes no representations or warranties regarding: (i) the
ability to obtain or to continue to use any particular IP addresses, or (ii)
the routability of any IP addresses. Customer's use of IP addresses allocated to
Customer by ATMnet shall cease within 90 days of the termination of this
Agreement.
LIMITED WARRANTY. ATMnet represents and warrants that it has full power and
authority to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights granted in this Agreement. ATMnet further
warrants that all services provided by ATMnet under this Agreement will be
provided in a workmanlike manner and in accordance with the standards of
workmanship in the industry. ATMnet further represents that, as of the
effective date of this Agreement, ATMnet is not aware of any specific claim
(whether or not embodied in an action, past or present) by any third party that
the ATMnet Services or the ATMnet Equipment infringe the intellectual property
rights of any third party. Subject to the foregoing, ATMnet Services and ATMnet
Equipment are provided on an "as is" and "as available" basis without
warranties of any kind, either express or implied, including but not limited to
warranties of title, noninfringement or implied warranties or merchantability
or fitness for a particular purpose. No advice or information given by ATMnet
or its affiliates shall create a warranty. Neither ATMnet nor its affiliates
warrants that the service will be uninterrupted or error free or that any
information, software or other material accessible on the service is free of
harmful components.
LIMITATION OF LIABILITY. Under no circumstances shall either party or its
affiliates be liable for any indirect, incidental, special, punitive or
consequential damages that result in any way from the use of or inability to use
ATMnet Services, or Customer's reliance on or use of information, services or
merchandise provided on or via ATMnet Services, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
INDEMNITY. Customer agrees to defend, indemnify and hold ATMnet and its
affiliates harmless form any and all liabilities, costs and expenses, including
reasonable attorney's fees, settlement payments and any damages awarded related
to or arising from: (1) the placement or transmission of any message,
information, software or other materials on any other network connected to
ATMnet; (2) any damages caused by Customer Equipment, (3) negligent acts or
omissions of Customer or its affiliates in connection with the construction,
installation, maintenance, presence, use or removal of systems, channels,
equipment or software not provided by ATMnet which are connected or are to be
connected to ATMnet Services; and (4) claims for infringement arising from the
use of equipment and software, apparatus and systems not provided by ATMnet. In
no event will Customer be liable to ATMnet for the content of information put
on the ATMnet system by Customer's customers. Customer will provide in its
contracts with its customers that those customers are solely liable for any
content such customer puts on the ATMnet system.
DISPUTES. This Agreement and its addendum shall be governed by and construed
in accordance with the laws of the state of California without application of
the principles of conflict of laws. The parties consent to and submit to the
exclusive jurisdiction of the federal and state courts located in San Diego,
California.
NOTICES. All notices to a party under this Agreement will be in writing and
will be sent by registered or certified mail, return receipt requested, or
delivered by hand, by overnight courier or by telecopier to such party's place
of business as noted on page 1 of this Agreement, or to such other address as
may be designated in writing by either party in accordance with this section.
Notices are effective upon receipt.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
whether oral, written or implied, and may only be modified in writing.
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 93131-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 7
ADDENDUM 2
Customer Equipment on ATMnet Premises
1. Delivery and Installation. Customer shall deliver to ATMnet the Customer
Equipment on or before the delivery date agreed to by ATMnet and Customer.
One week prior to the delivery date, Customer shall provide ATMnet with a
description of the configuration of the equipment and its connection to
ATMnet equipment.
2. Use. Customer shall use Customer Equipment solely and exclusively in
accordance with this Agreement.
3. Installation. If any installation is necessary, customer shall install
Customer Equipment at ATMnet's facility. Customer shall be responsible for
insuring the maintenance of the Customer Equipment in good working order
and condition. This maintenance shall include, but not be limited to,
calibrating test equipment and having service and preventive maintenance
performed as appropriate.
4. Access and Supervision. All access to Customer Equipment by Customer must
be supervised by ATMnet. Emergency access will be provided as soon as
possible on a best effort basis. Non-emergency access requires 24 hour
advance notice. Customer shall not, under any circumstances, touch any
equipment in ATMnet's facility other than the Customer Equipment, without
the prior approval of ATMnet.
5. Adherence to Standards. The quality of all work performed on ATMnet
premises must be to ATMnet's reasonable satisfaction. If such work is not
performed to ATMnet's reasonable satisfaction, ATMnet will give Customer
specific, written notice of the work that needs correction. If Customer
does not correct such work to ATMnet's reasonable satisfaction within
thirty (30) days of such notice, ATMnet may, if necessary, make
corrections to the work performed at Customer's expense.
6. Interconnection. An Interconnection is any connection between the Customer
Equipment and any other equipment within the ATMnet facility, and includes
connections to equipment operated by ATMnet and/or third parties with
circuit termination facilities within ATMnet facilities. All
Interconnections must be approved and supervised by ATMnet, and
Interconnections with third parties must be ordered by ATMnet.
7. Return. ATMnet shall return to Customer all Customer equipment, upon
expiration or earlier termination of the Agreement.
<PAGE> 8
ATMNET SERVICES AGREEMENT NO. 002-________
This agreement for ATMnet Services (this Agreement) is entered into by and
between Verio-San Diego, a Colorado corporation (ATMnet) and Customer, and is
bound by the following provisions hereto and incorporated herein by this
reference.
<TABLE>
<CAPTION>
Customer: Web Side Story Location:
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
6450 Lusk Boulevard, Suite E206
San Diego, CA 92121
- ---------------------------------------------------------------------------------------------------------------
Contact: Blaise Barrelet Phone: 619-546-0040 Contact: Phone:
- ---------------------------------------------------------------------------------------------------------------
Fax: 619-546-0480 Email: Fax: Email:
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Schedule of ATMnet Services to be provided Initial Fees Monthly Fees
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C>
$5,085.05
Engineering Services @ $175 per hour; 8 hour minimum $ 1,400
- ---------------------------------------------------------------------------------------------------------------
Cisco 4700 64MB Main Field Memory Upgrade $ 3,420
- ---------------------------------------------------------------------------------------------------------------
California Sales Tax on hardware (7.75%) $ 265.05
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
Totals $5,085.05
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
PLANNED SERVICE DATE: December 18, 1997 TERM: ____ month Total Due In Advance: 0
- ---------------------------------------------------------------------------------------------------------------
EFFECTIVE DATE OF AGREEMENT: December 16, 1997 Installation and first month with order
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
SPECIAL INSTRUCTIONS:
Engineering services are to include: ASN Registration, RADB Registration, BGP
Configuration on Cisco 4700 and Cisco 7200 and LAN Reconfiguration.
$3,685.05 is due upon equipment delivery.
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
Customer ATMNET
by: /s/ AGNES BARRELET Date by: /s/ CLARKE BURKE Date 12-16-97
- ---------------------------------------------- ----------------------------------------------
its: CFO its: District Sales Manager
</TABLE>
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO CA 92121-1798 - 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 9
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 1
SERVICE DATE AND PLANNED SERVICE DATE. The Service Date shall be the date any
ATMnet Services ordered under this Agreement are first available for use by
Customer. The Planned Service Date shall be the date set forth on the first
page of this agreement.
INITIAL TERM. The Initial Term shall be for the months shown on the Agreement,
beginning on the Service Date.
RENEWAL. The Agreement shall renew automatically for additional 12 month terms
unless notification of non-renewal is provided by either party not less than 30
days prior to the expiration of the Initial Term or renewal period.
PRICE CHANGES. ATMnet reserves the right to change its prices at any time by
giving 30 days prior notice to customer. Customer may elect not to accept any
increase in price, at which time ATMnet may decide, at its sole discretion, to
cancel this Agreement and terminate service.
CANCELLATION. The Agreement is cancelable by Customer payment of all fees due
for the remainder of the Initial Term, or if the Agreement has been renewed,
for the renewal period.
PAYMENT. Initial Fees are payable in advance of order. Monthly Fees will be
billed monthly in advance beginning one month from the Service Date. Payment of
Monthly Fees are due upon receipt of invoice, and are delinquent if not
received within 15 days. Any Fees not received 30 days from date of invoice are
subject to a late charge of 1 1/2% per month. In the event ATMnet instigates
any legal action to collect any sums owed by customer, ATMnet shall be entitled
to an award of reasonable attorney fees and costs incurred by ATMnet in
connection with such legal action, if a judgment in ATMnet's favor is entered
in the legal action.
TAXES. Customer agrees to pay any sales, use, gross receipts, excise, access,
bypass or other local, state and Federal taxes or charges, imposed on or based
upon the provision, sale or use of the ATMnet Services.
INTERRUPTION OF SERVICES AND CANCELLATION FOR NONPAYMENT. Service may be
interrupted if any fees are delinquent, or if Customer engages in any conduct
or activities which ATMnet in its sole discretion believes breaches any of the
terms of this Agreement. An interruption of service does not relieve Customer
of its obligation to continue to pay monthly fees. This Agreement is cancelable
by ATMnet if Customer fails to pay any amount payable under this Agreement on
the date that such amount is due and payable.
ASSIGNMENT. Customer shall not, without prior written consent of ATMnet, which
shall not be unreasonably withheld, assign, transfer or in any other manner
dispose of, any of its rights, privileges, or obligations under this Agreement.
CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense undertake
all necessary preparations to comply with ATMnet's installation instructions.
If Customer is not ready to accept ATMnet Services 30 days after the Planned
Service Date, ATMnet may begin billing Monthly Fees using the Planned Service
date as the Service Date. Customer is responsible for the use, comparability
and maintenance of all Customer owned equipment.
ADDITIONAL EQUIPMENT. If ATMnet provides equipment (whether owned, leased, or
rented by ATMnet) to Customer in connection with the Services provided under
this Agreement ("ATMnet Equipment"), the terms and conditions of ADDENDUM 1
(ATMnet Equipment on Customer Premises") shall apply to such equipment. If
Customer arranges for equipment (whether owned leased or rented by Customer) to
be placed on ATMnet premises ("Customer Equipment") in connection with the
services provided under this Agreement, the terms and conditions of ADDENDUM 2
(Customer Equipment on ATMnet Premises") shall apply to such equipment.
LETTER OF AGENCY (LOA). By executing the Letter Of Agency attached as Schedule
2, Customer hereby authorizes ATMnet to act on its behalf with Local Exchange
Carriers and others for the provisioning of local access required as part of
the ATMnet Services. This LOA shall remain in effect until canceled by Customer
in writing.
ACCEPTABLE USE. ATMnet Services shall only be used by Customer for lawful
purposes consistent with generally recognized business practices. Without
limiting the foregoing, as long as ATMnet is supplying services to Customer.
Customer represents and warrants the Customer shall not use the services in a
manner (i) which results in any transmission of market in violation of any
international, federal, state or legal law or regulation; (ii) which would in
any way violate or infringe upon any party, privacy right, right of publicity,
or any other right of any person or entity; or (iii) to display, transmit or
store material which is unlawful, harmful, abusive, hateful, obscene,
threatening, libelous or defamatory. Customer further warrants and represents
that its use and access of other networks through ATMnet will comply with all
applicable laws, regulations and conventions, including those related to
privacy, international communications and exportation of technical or personal
data.
DISCLAIMER; COMPLIANCE. Customer acknowledges that ATMnet does not and cannot
control the content, quality or accuracy of information available through its
system or over the Internet in general, and any use of such information is at
Customer's own risk. By using ATMnet's services, Customer agrees to comply with
the terms and conditions stated herein, or otherwise generally provided by
ATMnet to Customer from time to time.
DOMAIN NAMES. At Customer's request ATMnet will assist customer in obtaining and
maintaining the domain name(s) used by Customer in connection with the Services.
Customer acknowledges and agrees that the domain name(s) are subject to the
policies and procedures of the Internet Assigned Numbers Authority ("IANA"), the
Internet Ad Hoc
ATMNET IS A REGISTERED SERVICE MARK o http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 o SAN DIEGO CA 92121-1798 o 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 10
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 2
Committee ("IAHC") and the registrar issuing the domain name(s). Customer
agrees to pay all fees charged by the issuing registrar relating to such domain
name(s). Customer acknowledges that ATMnet is not responsible for the actions
taken by IANA, IAHC or the issuing registrar and, therefore, ATMnet makes no
representations or warranties regarding: (i) the ability to obtain or to
continue to use any particular domain name, or (ii) the ability to resolve any
domain name into its associated Internet Protocol ("IP") address(es).
IP ADDRESSES. At Customer's request ATMnet will allocate IP addresses to
Customer from its Classless Inter Domain Routing ("CIDR") address blocks for
Customer's use solely in connection with the Services, and only for the Initial
Term of the Agreement and any renewal periods. Customer acknowledges and agrees
that the IP addresses are subject to the policies and procedures of the
Internet Assigned Numbers Authority ("IANA"), and the registrar authorizing the
use of the IP addresses by ATMnet. Customer agrees to pay all fees charged by
the issuing registrar relating to such IP addresses. Allocation of IP addresses
to Customer shall be made in a manner consistent with the policies of IANA, the
Internet Engineering Task Force ("IETF"), and the issuing registrar. Customer
acknowledges that ATMnet is not responsible for the actions taken by IANA,
IETF, the issuing registrar or other network operators and therefore, ATMnet
makes no representations or warranties regarding: (i) the ability to obtain or
to continue to use any particular IP addresses, or (ii) the routability of any
IP addresses. Customer's use of IP addresses allocated to Customer by ATMnet
shall cease within 90 days of the termination of this Agreement.
NO WARRANTY. ATMnet Services and ATMnet Equipment are provided on an "as is"
and "as available" basis without warranties of any kind, either express or
implied, including but not limited to warranties of title, noninfringement or
implied warranties of merchantability or fitness for a particular purpose. No
advice or information given by ATMnet or its affiliates shall create a
warranty. Neither ATMnet nor its affiliates warrants that the service will be
uninterrupted or error free or that any information, software or other material
accessible on the service is free of harmful components.
LIMITATION OF LIABILITY. Under no circumstances shall ATMnet or its affiliates
be liable for any direct, indirect, incidental, special, punitive or
consequential damages that result in any way from the use of or inability to
use ATMnet Services, or Customer's reliance on or use of information, services
or merchandise provided on or via ATMnet Services, or that result from
mistakes, omissions, interruptions, deletion of files, errors, defects delays
in operation, or transmission, or any failure of performance.
INDEMNITY. Customer agrees to defend, indemnify and hold ATMnet and its
affiliates harmless from any and all liabilities, costs and expenses, including
reasonable attorney's fees, settlement payments and any damages awarded related
to or arising from: (1) any breach of this Agreement by Customer or its
affiliates; (2) the use of ATMnet Services or the placement or transmission of
any message, information, software or other materials on any other network
connected to ATMnet; (3) any damages caused by Customer Equipment; (4)
negligent acts or omissions of Customer or its affiliates in connection with
the construction, installation, maintenance, presence, use or removal of
systems, channels, equipment or software not provided by ATMnet which are
connected or are to be connected to ATMnet Services: and (5) claims for
infringement arising from the use of equipment and software, apparatus and
systems not provided by ATMnet.
DISPUTES. This Agreement shall be governed by and construed in accordance with
the laws of the state of California without application of the principles of
conflict of laws. The parties consent to and submit to the exclusive
jurisdiction of the federal and state courts located in San Diego, California.
NOTICE. All notices to a party under this Agreement will be in writing and will
be sent by registered or certified mail, return receipt requested, or delivered
by hand, by overnight courier or by telecopier to such party's place of
business as noted on page 1 of this Agreement, or to such other address as may
be designated in writing by either party in accordance with this section.
Notices are effective upon receipt.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
whether oral, written or implied, and may only be modified in writing.
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 - 619/643-1800
FACSIMILE 619/643-1801
<PAGE> 11
ATMNET SERVICES AGREEMENT NO. 002-
This agreement for ATMNET Services (this Agreement) is entered into by and
between ATMNET, a California corporation (ATMNET) and Customer, and is bound by
the following provisions and by the Terms and Conditions attached hereto and
incorporated herein by this reference.
<TABLE>
- --------------------------------------------------------------------------------------
<S> <C> <C>
Customer: Web Side Story Location:
6450 Lusk Boulevard, Suite E206
San Diego, CA 92121
- --------------------------------------------------------------------------------------
Contact: Blaise Barrelet Phone: 619-546-0040 Contact: Phone:
- --------------------------------------------------------------------------------------
Fax: 619-546-0480 Email: Fax: Email
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
SCHEDULE OF ATMNET SERVICES TO BE PROVIDED INITIAL FEES MONTHLY
FEES
- --------------------------------------------------------------------------------------
Dedicated ATMnet Access at 10Mbps Data Rate via remote DS-3 *** ***
local loop
DS-3 Local Loop Circuit $0 ***
TOTALS *** ***
--------------------------------------
- --------------------------------------------------------------------------------------
PLANNED SERVICE DATE: May 23, 1997 TERM: 36 months TOTAL DUE IN ADVANCE: $0
- --------------------------------------------------------------------------------------
EFFECTIVE DATE OF AGREEMENT: May 1, 1997 INSTALLATION AND FIRST MONTH DUE WITH ORDER
- --------------------------------------------------------------------------------------
</TABLE>
SPECIAL INSTRUCTIONS:
1. This agreement will supercede the previous agreement between Web Side Story
and ATMnet dated March 10, 1997 when service begins under the remote DS-3
circuit. Until that time, Web Side Story will continue payment and service
under the existing agreement for 10Mbps Dedicated ATMnet Access.
2. The installation fee will be payable over the initial five months of
service according to the schedule below:
<TABLE>
<CAPTION>
Dedicated
Term Installation ATMnet Access Local Loop Total
---------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Months 1 to 5 $1000.00 *** *** ***
Months 5 to 36 *** *** ***
</TABLE>
3. Web Side Story may integrate to higher levels of bandwidth over the DS-3
local loop according to the schedule below:
<TABLE>
<CAPTION>
Monthly Dedicated ATMnet Access Charge
---------------------------------------
<S> <C>
25Mbps ***
45Mbps ***
</TABLE>
4. If Web Side Story migrates to bandwidth levels between 45Mbps and 155Mbps
an additional *** ATMnet installation charge will be applied and upgrades
to Web Side Story's equipment and the local loop circuit will be required
at additional expense. The charge for 155Mbps connectivity would be *** not
including the local loop portion. Intermediate levels of bandwidth between
45Mbps and 155Mbps may be priced on an individual basis.
5. If Web Side Story terminates this agreement between month 12 and 36, Web
Side Story must pay ATMnet the difference between the 36 month discounted
price and the standard price ($1000 in installation cost and $375 for each
month the service was utilized).
6. It is assumed that Web Side Story will provide all server-based services
(email, FTP, Web, DNS etc.). ATMnet may provide primary or secondary DNS as
a part of this agreement.
7. It is the intent of this agreement to maintain pricing for bandwidth in
accordance with current ATMnet and industry standards. A review of pricing
for Dedicated ATMnet Access may be initiated by either party every six
months. The standards of evidence for rational pricing will be three ATMnet
contracts for the same or similar levels of Dedicated ATMnet Access within
six months of the review date.
Customer ATMNET
by: /s/ BLAISE P. BARRELET Date by: /s/ CLARK BURKE Date 5-1-97
------------------------------------ ------------------------------------
its: President & CEO its: Account Executive
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 - 619/643-1800
FACSIMILE 619/643-1801
*** Confidential Portions have been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 12
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 1
SERVICE DATE AND PLANNED SERVICE DATE. The Service Date shall be the date any
ATMnet Services ordered under this Agreement are first available for use by
Customer. The Planned Service Date shall be the date set forth on the first
page of this agreement.
INITIAL TERM. The Initial Term shall be for the months shown on the Agreement,
beginning on the Service Date.
RENEWAL. The Agreement shall renew automatically for additional 12 month terms
unless notification of non-renewal is provided by either party not less than 30
days prior to the expiration of the Initial Term or renewal period.
CANCELLATION. The Agreement is cancelable by Customer at any time upon ten (10)
days notice to ATMnet and upon payment of all fees due for the remainder of the
Initial Term, or if the Agreement has been renewed, for the renewal period, in
accordance with the terms on the cover sheet of this Agreement.
PAYMENT. Initial Fees are payable in advance of order, Monthly Fees will be
billed monthly in advance beginning one month from the Service Date. Payment of
Monthly Fees are due upon receipt of invoice, and are delinquent if not
received within 15 days. Any Fees not received 30 days from date of invoice are
subject to a late charge of 1 1/2% per month. In the event ATMnet instigates
any legal action to collect any sums owed by customer, ATMnet shall be entitled
to an award of reasonable attorney fees and costs incurred by ATMnet in
connection with such legal action, if a judgment in ATMnet's favor is entered
in the legal action.
TAXES. Customer agrees to pay any sales, use, gross receipts, excise, access,
bypass or other local, state and Federal taxes or charges, imposed on or based
upon the provision, sale or use of the ATMnet Services, excluding any taxes
levied on ATMnet's income.
INTERRUPTION OF SERVICES AND CANCELLATION FOR NONPAYMENT. Service may be
interrupted if any fees are delinquent, or if Customer engages in any conduct
or activities which ATMnet believes constitute a material breach of any of the
material terms of this Agreement. An interruption of service does not relieve
Customer of its obligation to continue to pay monthly fees. This Agreement is
cancelable by ATMnet upon thirty (30) days written notice if Customer fails to
pay any amount payable under this Agreement on the date that such amount is due
and payable.
ASSIGNMENT. Customer may assign this Agreement in connection with a corporate
reorganization, acquisition, or merger. Subject to the foregoing, Customer
shall not, without prior written consent of ATMnet, which shall not be
unreasonably withheld, assign, transfer or in any other manner dispose of, any
of its rights, privileges, or obligations under this Agreement.
CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense undertake
all necessary preparations to comply with ATMnet's installation instructions.
If Customer is not ready to accept ATMnet Services 30 days after the Planned
Service Date, ATMnet may begin billing Monthly Fees using the Planned Service
date as the Service Date. Customer is responsible for the use, compatibility
and maintenance of all Customer owned equipment.
ADDITIONAL EQUIPMENT. If ATMnet provides equipment (whether owned, leased, or
rented by ATMnet) to Customer in connection with the Services provided under
this Agreement ("ATMnet Equipment"), the terms and conditions of ADDENDUM 1
(ATMnet Equipment on Customer Premises") shall apply to such equipment. If
customer arranges for equipment (whether owned leased or rented by Customer) to
be placed on ATMnet premises ("Customer Equipment") in connection with the
services provided under this Agreement, the terms and conditions of ADDENDUM 2
(Customer Equipment on ATMnet Premises") shall apply to such equipment.
ACCEPTABLE USE. ATMnet Services shall only be used by Customer for lawful
purposes consistent with generally recognized business practices.
DISCLAIMER; COMPLIANCE. Customer acknowledges that ATMnet does not and cannot
control the content, quality or accuracy of information available through its
system or over the Internet in general, and any use of such information is at
Customer's own risk. By using ATMnet's services, Customer agrees to comply with
the terms and conditions stated herein, or otherwise generally provided in
writing by ATMnet and agreed to, in writing, by Customer from time to time.
DOMAIN NAMES. At Customer's request ATMnet will assist customer in obtaining and
maintaining the domain name(s) used by Customer in connection with the Services.
Customer acknowledges and agrees that the domain name(s) are subject to the
policies and procedures of the Internet Assigned Numbers Authority ("IANA"), the
Internet Ad Hoc Committee ("IAHC") and the registrar issuing the domain name(s).
Customer agrees to pay all fees charged by the issuing registrar relating to
such domain name(s). Customer acknowledges that ATMnet is not responsible for
the actions taken by IANA, IAHC or the issuing registrar and, therefore, ATMnet
makes no representations or warranties regarding: (i) the ability to obtain or
to continue to use any particular domain name, or (ii) the ability to resolve
any domain name into its associated Internet Protocol ("IP") address(es).
IP ADDRESSES. At Customer's request ATMnet will allocate IP addresses to
Customer from its Classless Inter Domain Routing ("CIDR") address blocks for
Customer's use solely in connection with the Services, and only for the Initial
Term of the Agreement and any renewal periods. Customer acknowledges and agrees
that the IP addresses are subject to the policies and procedures of the
Internet Assigned Numbers Authority ("IANA"), and the registrar authorizing the
use of the IP addresses by ATMnet. Customer agrees to pay all fees
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 13
INTERNET SERVICES TERMS AND CONDITIONS
PAGE 2
charged by the issuing registrar relating to such IP addresses. Allocation of
IP addresses to Customer shall be made in a manner consistent with the policies
of IANA, the Internet Engineering Task Force ("IETF"), and the issuing
registrar. Customer acknowledges that ATMnet is not responsible for the actions
taken by IANA, IETF, the issuing registrar or other network operators and,
therefore, ATMnet makes no representations or warranties regarding: (i) the
ability to obtain or to continue to use any particular IP addresses, or (ii)
the routability of any IP addresses. Customer's use of IP addresses allocated to
Customer by ATMnet shall cease within 90 days of the termination of this
Agreement.
LIMITED WARRANTY. ATMnet represents and warrants that it has full power and
authority to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights granted in this Agreement. ATMnet further
warrants that all services provided by ATMnet under this Agreement will be
provided in a workmanlike manner and in accordance with the standards of
workmanship in the industry. ATMnet further represents that, as of the
effective date of this Agreement, ATMnet is not aware of any specific claim
(whether or not embodied in an action, past or present) by any third party that
the ATMnet Services or the ATMnet Equipment infringe the intellectual property
rights of any third party. Subject to the foregoing, ATMnet Services and ATMnet
Equipment are provided on an "as is" and "as available" basis without
warranties of any kind, either express or implied, including but not limited to
warranties of title, noninfringement or implied warranties or merchantability
or fitness for a particular purpose. No advice or information given by ATMnet
or its affiliates shall create a warranty. Neither ATMnet nor its affiliates
warrants that the service will be uninterrupted or error free or that any
information, software or other material accessible on the service is free of
harmful components.
LIMITATION OF LIABILITY. Under no circumstances shall either party or its
affiliates be liable for any indirect, incidental, special, punitive or
consequential damages that result in any way from the use of or inability to use
ATMnet Services, or Customer's reliance on or use of information, services or
merchandise provided on or via ATMnet Services, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
INDEMNITY. Customer agrees to defend, indemnify and hold ATMnet and its
affiliates harmless form any and all liabilities, costs and expenses, including
reasonable attorney's fees, settlement payments and any damages awarded related
to or arising from: (1) the placement or transmission of any message,
information, software or other materials on any other network connected to
ATMnet; (2) any damages caused by Customer Equipment, (3) negligent acts or
omissions of Customer or its affiliates in connection with the construction,
installation, maintenance, presence, use or removal of systems, channels,
equipment or software not provided by ATMnet which are connected or are to be
connected to ATMnet Services; and (4) claims for infringement arising from the
use of equipment and software, apparatus and systems not provided by ATMnet. In
no event will Customer be liable to ATMnet for the content of information put
on the ATMnet system by Customer's customers. Customer will provide in its
contracts with its customers that those customers are solely liable for any
content such customer puts on the ATMnet system.
DISPUTES. This Agreement and its addendum shall be governed by and construed
in accordance with the laws of the state of California without application of
the principles of conflict of laws. The parties consent to and submit to the
exclusive jurisdiction of the federal and state courts located in San Diego,
California.
NOTICES. All notices to a party under this Agreement will be in writing and
will be sent by registered or certified mail, return receipt requested, or
delivered by hand, by overnight courier or by telecopier to such party's place
of business as noted on page 1 of this Agreement, or to such other address as
may be designated in writing by either party in accordance with this section.
Notices are effective upon receipt.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
whether oral, written or implied, and may only be modified in writing.
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 93131-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 14
ATMNET SERVICES TERMS AND CONDITIONS
PAGE 1
SERVICE DATE AND PLANNED SERVICE DATE. The Service Date shall be the date any
ATMnet Services ordered under this Agreement are first available for use by
Customer. The Planned Service Date shall be the date set forth on the first
page of this agreement.
INITIAL TERM. The Initial Term shall be for the months shown on the Agreement,
beginning on the Service Date.
RENEWAL. The Agreement shall renew automatically for additional 12 month terms
unless notification of non-renewal is provided by either party not less than 30
days prior to the expiration of the Initial Term or renewal period.
CANCELLATION. The Agreement is cancelable by Customer at any time upon ten (10)
days notice to ATMnet and upon payment of all fees due for the remainder of the
Initial Term, or if the Agreement has been renewed, for the renewal period, in
accordance with the terms on the cover sheet of this Agreement.
PAYMENT. Initial Fees are payable in advance of order, Monthly Fees will be
billed monthly in advance beginning one month from the Service Date. Payment of
Monthly Fees are due upon receipt of invoice, and are delinquent if not
received within 15 days. Any Fees not received 30 days from date of invoice are
subject to a late charge of 1 1/2% per month. In the event ATMnet instigates
any legal action to collect any sums owed by customer, ATMnet shall be entitled
to an award of reasonable attorney fees and costs incurred by ATMnet in
connection with such legal action, if a judgment in ATMnet's favor is entered
in the legal action.
TAXES. Customer agrees to pay any sales, use, gross receipts, excise, access,
bypass or other local, state and Federal taxes or charges, imposed on or based
upon the provision, sale or use of the ATMnet Services, excluding any taxes
levied on ATMnet's income.
INTERRUPTION OF SERVICES AND CANCELLATION FOR NONPAYMENT. Service may be
interrupted if any fees are delinquent, or if Customer engages in any conduct
or activities which ATMnet believes constitute a material breach of any of the
material terms of this Agreement. An interruption of service does not relieve
Customer of its obligation to continue to pay monthly fees. This Agreement is
cancelable by ATMnet upon thirty (30) days written notice if Customer fails to
pay any amount payable under this Agreement on the date that such amount is due
and payable.
ASSIGNMENT. Customer may assign this Agreement in connection with a corporate
reorganization, acquisition, or merger. Subject to the foregoing, Customer
shall not, without prior written consent of ATMnet, which shall not be
unreasonably withheld, assign, transfer or in any other manner dispose of, any
of its rights, privileges, or obligations under this Agreement.
CUSTOMER EQUIPMENT AND FACILITIES. Customer shall at its own expense undertake
all necessary preparations to comply with ATMnet's installation instructions.
If Customer is not ready to accept ATMnet Services 30 days after the Planned
Service Date, ATMnet may begin billing Monthly Fees using the Planned Service
date as the Service Date. Customer is responsible for the use, compatibility
and maintenance of all Customer owned equipment.
ADDITIONAL EQUIPMENT. If ATMnet provides equipment (whether owned, leased, or
rented by ATMnet) to Customer in connection with the Services provided under
this Agreement ("ATMnet Equipment"), the terms and conditions of ADDENDUM 1
(ATMnet Equipment on Customer Premises") shall apply to such equipment. If
customer arranges for equipment (whether owned leased or rented by Customer) to
be placed on ATMnet premises ("Customer Equipment") in connection with the
services provided under this Agreement, the terms and conditions of ADDENDUM 2
(Customer Equipment on ATMnet Premises") shall apply to such equipment.
ACCEPTABLE USE. ATMnet Services shall only be used by Customer for lawful
purposes consistent with generally recognized business practices.
DISCLAIMER; COMPLIANCE. Customer acknowledges that ATMnet does not and cannot
control the content, quality or accuracy of information available through its
system or over the Internet in general, and any use of such information is at
Customer's own risk. By using ATMnet's services, Customer agrees to comply with
the terms and conditions stated herein, or otherwise generally provided in
writing by ATMnet and agreed to, in writing, by Customer from time to time.
DOMAIN NAMES. At Customer's request ATMnet will assist customer in obtaining and
maintaining the domain name(s) used by Customer in connection with the Services.
Customer acknowledges and agrees that the domain name(s) are subject to the
policies and procedures of the Internet Assigned Numbers Authority ("IANA"), the
Internet Ad Hoc Committee ("IAHC") and the registrar issuing the domain name(s).
Customer agrees to pay all fees charged by the issuing registrar relating to
such domain name(s). Customer acknowledges that ATMnet is not responsible for
the actions taken by IANA, IAHC or the issuing registrar and, therefore, ATMnet
makes no representations or warranties regarding: (i) the ability to obtain or
to continue to use any particular domain name, or (ii) the ability to resolve
any domain name into its associated Internet Protocol ("IP") address(es).
IP ADDRESSES. At Customer's request ATMnet will allocate IP addresses to
Customer from its Classless Inter Domain Routing ("CIDR") address blocks for
Customer's use solely in connection with the Services, and only for the Initial
Term of the Agreement and any renewal periods. Customer acknowledges and agrees
that the IP addresses are subject to the policies and procedures of the
Internet Assigned Numbers Authority ("IANA"), and the registrar authorizing the
use of the IP addresses by ATMnet. Customer agrees to pay all fees
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 92121-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 15
INTERNET SERVICES TERMS AND CONDITIONS
PAGE 2
charged by the issuing registrar relating to such IP addresses. Allocation of
IP addresses to Customer shall be made in a manner consistent with the policies
of IANA, the Internet Engineering Task Force ("IETF"), and the issuing
registrar. Customer acknowledges that ATMnet is not responsible for the actions
taken by IANA, IETF, the issuing registrar or other network operators and,
therefore, ATMnet makes no representations or warranties regarding: (i) the
ability to obtain or to continue to use any particular IP addresses, or (ii)
the routability of any IP addresses. Customer's use of IP addresses allocated to
Customer by ATMnet shall cease within 90 days of the termination of this
Agreement.
LIMITED WARRANTY. ATMnet represents and warrants that it has full power and
authority to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights granted in this Agreement. ATMnet further
warrants that all services provided by ATMnet under this Agreement will be
provided in a workmanlike manner and in accordance with the standards of
workmanship in the industry. ATMnet further represents that, as of the
effective date of this Agreement, ATMnet is not aware of any specific claim
(whether or not embodied in an action, past or present) by any third party that
the ATMnet Services or the ATMnet Equipment infringe the intellectual property
rights of any third party. Subject to the foregoing, ATMnet Services and ATMnet
Equipment are provided on an "as is" and "as available" basis without
warranties of any kind, either express or implied, including but not limited to
warranties of title, noninfringement or implied warranties or merchantability
or fitness for a particular purpose. No advice or information given by ATMnet
or its affiliates shall create a warranty. Neither ATMnet nor its affiliates
warrants that the service will be uninterrupted or error free or that any
information, software or other material accessible on the service is free of
harmful components.
LIMITATION OF LIABILITY. Under no circumstances shall either party or its
affiliates be liable for any indirect, incidental, special, punitive or
consequential damages that result in any way from the use of or inability to use
ATMnet Services, or Customer's reliance on or use of information, services or
merchandise provided on or via ATMnet Services, or that result from mistakes,
omissions, interruptions, deletion of files, errors, defects, delays in
operation, or transmission, or any failure of performance.
INDEMNITY. Customer agrees to defend, indemnify and hold ATMnet and its
affiliates harmless form any and all liabilities, costs and expenses, including
reasonable attorney's fees, settlement payments and any damages awarded related
to or arising from: (1) the placement or transmission of any message,
information, software or other materials on any other network connected to
ATMnet; (2) any damages caused by Customer Equipment, (3) negligent acts or
omissions of Customer or its affiliates in connection with the construction,
installation, maintenance, presence, use or removal of systems, channels,
equipment or software not provided by ATMnet which are connected or are to be
connected to ATMnet Services; and (4) claims for infringement arising from the
use of equipment and software, apparatus and systems not provided by ATMnet. In
no event will Customer be liable to ATMnet for the content of information put
on the ATMnet system by Customer's customers. Customer will provide in its
contracts with its customers that those customers are solely liable for any
content such customer puts on the ATMnet system.
DISPUTES. This Agreement and its addendum shall be governed by and construed
in accordance with the laws of the state of California without application of
the principles of conflict of laws. The parties consent to and submit to the
exclusive jurisdiction of the federal and state courts located in San Diego,
California.
NOTICES. All notices to a party under this Agreement will be in writing and
will be sent by registered or certified mail, return receipt requested, or
delivered by hand, by overnight courier or by telecopier to such party's place
of business as noted on page 1 of this Agreement, or to such other address as
may be designated in writing by either party in accordance with this section.
Notices are effective upon receipt.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof. This
Agreement supersedes all prior representations, agreements and understandings
whether oral, written or implied, and may only be modified in writing.
ATMNET IS A REGISTERED SERVICE MARK - http://www.ATMnet.net
5440 MOREHOUSE DRIVE, SUITE 3700 - SAN DIEGO, CA 93131-1798 -
619/643-1800 FACSIMILE 619/643-1801
<PAGE> 16
ADDENDUM 2
Customer Equipment on ATMnet Premises
1. Delivery and Installation. Customer shall deliver to ATMnet the Customer
Equipment on or before the delivery date agreed to by ATMnet and Customer.
One week prior to the delivery date, Customer shall provide ATMnet with a
description of the configuration of the equipment and its connection to
ATMnet equipment.
2. Use. Customer shall use Customer Equipment solely and exclusively in
accordance with this Agreement.
3. Installation. If any installation is necessary, customer shall install
Customer Equipment at ATMnet's facility. Customer shall be responsible for
insuring the maintenance of the Customer Equipment in good working order
and condition. This maintenance shall include, but not be limited to,
calibrating test equipment and having service and preventive maintenance
performed as appropriate.
4. Access and Supervision. All access to Customer Equipment by Customer must
be supervised by ATMnet. Emergency access will be provided as soon as
possible on a best effort basis. Non-emergency access requires 24 hour
advance notice. Customer shall not, under any circumstances, touch any
equipment in ATMnet's facility other than the Customer Equipment, without
the prior approval of ATMnet.
5. Adherence to Standards. The quality of all work performed on ATMnet
premises must be to ATMnet's reasonable satisfaction. If such work is not
performed to ATMnet's reasonable satisfaction, ATMnet will give Customer
specific, written notice of the work that needs correction. If Customer
does not correct such work to ATMnet's reasonable satisfaction within
thirty (30) days of such notice, ATMnet may, if necessary, make
corrections to the work performed at Customer's expense.
6. Interconnection. An Interconnection is any connection between the Customer
Equipment and any other equipment within the ATMnet facility, and includes
connections to equipment operated by ATMnet and/or third parties with
circuit termination facilities within ATMnet facilities. All
Interconnections must be approved and supervised by ATMnet, and
Interconnections with third parties must be ordered by ATMnet.
7. Return. ATMnet shall return to Customer all Customer equipment, upon
expiration or earlier termination of the Agreement.
<PAGE> 1
EXHIBIT 10.16
WEBSIDESTORY, INC.
2000 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
(INCENTIVE AND NONSTATUTORY STOCK OPTIONS)
Pursuant to your Stock Option Grant Notice ("Grant Notice") and this
Stock Option Agreement, WebSideStory, Inc. (the "Company") has granted you an
option ("Option") under its 2000 Equity Incentive Plan (the "Plan") to purchase
the number of shares of the Company's Common Stock indicated in your Grant
Notice at the exercise price indicated in your Grant Notice. Defined terms not
explicitly defined in this Stock Option Agreement but defined in the Plan shall
have the same definitions as in the Plan.
The details of your option are as follows:
1. VESTING. Subject to the limitations contained herein, your option
will vest as provided in your Grant Notice, provided that vesting will cease
upon the termination of your Continuous Service, except as provided below.
(a) SPECIAL EXERCISE PERIOD, ACCELERATION AND VESTING PROVISIONS. In the
event that your Continuous Service terminates for any reason then,
notwithstanding anything to the contrary in the Plan, you shall have until the
earlier of (1) the end of twenty four (24) months after the date of such
termination or (2) December 20, 2009 (the "Expiration Date") to exercise your
Option to the extent it is then vested pursuant to the Grant Notice or becomes
vested pursuant to the vesting provisions below. In the event that your
Continuous Service terminates due to an involuntary termination (not including
death or Disability) without Cause or due to a Constructive Termination then the
vesting of fifty percent (50%) of your unvested Option shares shall immediately
accelerate and these shares shall become vested. In the event of a Change in
Control, the vesting of fifty percent (50%) of your unvested Option shares shall
immediately accelerate and these shares shall become vested and, notwithstanding
anything to the contrary in the Plan, you shall have until the earlier of (1)
the end of twenty four (24) months after the date of the Change in Control or
(2) the Expiration Date to exercise your Option (or the normal exercise period,
if later). In this event, the balance of your unvested Options shares shall
continue to vest on a pro-rated basis on a monthly basis over the remaining
vesting period, unless otherwise accelerated as described below. Notwithstanding
the above, in the event that both (i) your Continuous Service terminates due to
an involuntary termination (not including death or Disability) without Cause or
due to a Constructive Termination and (ii) such termination occurs within 60
days prior to or any time after a Change in Control (or agreement to effect a
Change in Control) then, notwithstanding anything to the contrary in the Plan,
the vesting of all unvested portions of your Option shares shall immediately
accelerate and these shares shall become vested and you shall have until the end
of four (4) years after the date of such termination to exercise your Option or
any part of it.
1
<PAGE> 2
For purposes of subsection 1(a) only, Change in Control means: (i) a dissolution
or liquidation of the Company; (ii) a sale of all or a majority of the assets of
the Company; (iii) a merger or consolidation in which the Company is not the
surviving corporation and in which beneficial ownership of securities of the
Company representing at least fifty percent (50%) of the combined voting power
entitled to vote in the election of Directors has changed; (iv) a reverse merger
in which the Company is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise, and in which beneficial ownership of securities of the Company
representing at least fifty percent (50%) of the combined voting power entitled
to vote in the election of Directors has changed; (v) an acquisition by any
person, entity or group within the meaning of Section 13(d) or 14(d) of the
Exchange Act, or any comparable successor provisions (excluding any employee
benefit plan, or related trust, sponsored or maintained by the Company or
subsidiary of the Company or other entity controlled by the Company) of the
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the Company
representing at least fifty percent (50%) of the combined voting power entitled
to vote in the election of Directors; or (vi) in the event that the individuals
who, as of the date of adoption of the Plan, are members of the Company's Board
(the "Incumbent Board"), cease for any reason to constitute at least fifty
percent (50%) of the Board. (If the election, or nomination for election by the
Company's stockholders, of any new Director is approved by a vote of at least
fifty percent (50%) of the Incumbent Board, such new Director shall be
considered to be a member of the Incumbent Board in the future.)
For purposes of subsection 1(a) only, Constructive Termination means: the
occurrence of any of the following events or conditions: (i) (A) a change in
your highest status, title, position or responsibilities (including reporting
responsibilities) which represents an adverse change from your status, title,
position or responsibilities as in effect at any time within ninety (90) days
preceding the date of a Change in Control (as defined above) or at any time
thereafter; (B) the assignment to you of any duties or responsibilities which
are inconsistent with your highest status, title, position or responsibilities
as in effect at any time within ninety (90) days preceding the date of a Change
in Control or at any time thereafter; or (C) any removal of you from or failure
to reappoint or reelect you to any of such offices or positions, except in
connection with the termination of your Continuous Service for Cause, as a
result of your Disability or death or by you other than as a result of
Constructive Termination; (ii) a reduction in your annual base compensation or
any failure to pay you any compensation or benefits to which you are entitled
within five (5) days of the date due; (iii) the Company's requiring you to
relocate to any place outside a twenty (20) mile radius of your current work
site, except for reasonably required travel on the business of the Company or
its Affiliates which is not materially greater than such travel requirements
prior to the Change in Control; (iv) the failure by the Company to (A) continue
in effect (without reduction in benefit level and/or reward opportunities) any
material compensation or employee benefit plan in which you were participating
at any time within ninety (90) days preceding the date of a Change in Control or
at any time thereafter, unless such plan is replaced with a plan that provides
substantially equivalent compensation or benefits to you, or (B) provide you
with compensation and benefits, in the aggregate, at least equal (in terms of
benefit levels and/or reward opportunities) to those provided for under each
other employee benefit plan,
2
<PAGE> 3
program and practice in which you were participating at any time within ninety
(90) days preceding the date of a Change in Control or at any time thereafter;
(v) any material breach by the Company of any provision of an agreement between
the Company and you, whether pursuant to this Plan or otherwise, other than a
breach which is cured by the Company within fifteen (15) days following notice
by you of such breach; or (vi) the failure of the Company to obtain an
agreement, satisfactory to you, from any successors and assigns to assume and
agree to perform the obligations created under this Plan.
For purposes of subsection 1(a) only, Cause means the occurrence of any
of the following (and only the following): (i) your conviction of any felony
involving fraud or act of dishonesty against the Company or its Affiliates; (ii)
conduct by you which, based upon good faith and reasonable factual investigation
and determination of the Company (or, if you are an Officer, of the Board),
demonstrates gross unfitness to serve; or (iii) your intentional, material
violation of any statutory or fiduciary duty that you have to the Company or its
Affiliates. In addition, if you are not an Officer, Cause also shall include
your poor performance of services for the Company or its Affiliates as
determined by the Company following (A) written notice to you describing the
nature of such deficiency and (b) your failure to cure such deficiency within
thirty (30) days following receipt of the such written notice.
(b) PARACHUTE PAYMENTS. In the event that the acceleration of the
vesting and exercisability of the Stock Awards and/or the lapse of reacquisition
or repurchase rights with respect to Stock Awards provided for in subsection
1(a) and benefits otherwise payable to you (i) constitute "parachute payments"
within the meaning of Section 280G of the Code, or any comparable successor
provisions, and (ii) but for this subsection would be subject to the excise tax
imposed by Section 4999 of the Code, or any interest or penalties payable with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
you shall be entitled to receive from the Company an additional payment (the
"Gross-Up Payment") in an amount such that after payment by you of all taxes
(including, without limitation, any income and employment taxes and any interest
and penalties imposed with respect thereto) and the Excise Tax imposed upon the
Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Gross-Up Payment.
The accounting firm engaged by the Company for general audit purposes as
of the day prior to the effective date of the Change in Control shall perform
the foregoing calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall
bear all expenses with respect to the determinations by such accounting firm
required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and you within fifteen (15) calendar days after the date on which
your right to a Payment is triggered (if requested at that time by the Company
or you) or such other time as requested by the Company
3
<PAGE> 4
or you. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, it shall furnish the Company and you with an opinion
reasonably acceptable to you that no Excise Tax will be imposed with respect to
such Payment.
In the event that the excise tax incurred by you is determined by the
Internal Revenue Service to be greater or lesser than the amount so determined
by such accounting firm, then the Company and you agree to promptly make such
additional payment, including interest and any tax penalties, to the other party
as the accounting firm reasonably determine is appropriate to ensure that the
net economic effect to you under this Section, on an after-tax basis, is as if
the Code Section 4999 excise tax did not apply to you. For purposes of making
the calculations required by this Section, the accounting firm may make
reasonable assumptions and approximations concerning applicable taxes and may
rely on interpretations of the Code for which there is a "substantial authority"
tax reporting position. The Company and you shall furnish to the accounting firm
such information and documents the accounting firm may reasonably request in
order to make a determination under this Section. The Company shall bear all
costs the accounting firm may reasonably incur in connection with any
calculations contemplated by this Section.
2. NUMBER OF SHARES AND EXERCISE PRICE. The number of shares of Common
Stock subject to your option and your exercise price per share referenced in
your Grant Notice may be adjusted from time to time for Capitalization
Adjustments, as provided in the Plan.
3. EXERCISE PRIOR TO VESTING ("EARLY EXERCISE"). If permitted in your
Grant Notice (i.e., the "Exercise Schedule" indicates that "Early Exercise" of
your option is permitted) and subject to the provisions of your option, you may
elect at any time that is both (i) during the period of your Continuous Service
and (ii) during the term of your option, to exercise all or part of your option,
including the nonvested portion of your option; provided, however, that:
(a) a partial exercise of your option shall be deemed to cover
first vested shares of Common Stock and then the earliest vesting installment of
unvested shares of Common Stock;
(b) any shares of Common Stock so purchased from installments
that have not vested as of the date of exercise shall be subject to the purchase
option in favor of the Company as described in the Company's form of Early
Exercise Stock Purchase Agreement;
(c) you shall enter into the Company's form of Early Exercise
Stock Purchase Agreement with a vesting schedule that will result in the same
vesting as if no early exercise had occurred; and
(d) if your option is an incentive stock option, then, as
provided in the Plan, to the extent that the aggregate Fair Market Value
(determined at the time of grant) of the shares of Common Stock with respect to
which your option plus all other incentive stock options you hold are
exercisable for the first time by you during any calendar year (under all plans
of the Company and its Affiliates) exceeds one hundred thousand dollars
($100,000), your option(s) or
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<PAGE> 5
portions thereof that exceed such limit (according to the order in which they
were granted) shall be treated as nonstatutory stock options.
4. METHOD OF PAYMENT. Payment of the exercise price is due in full upon
exercise of all or any part of your option. You may elect to make payment of the
exercise price in cash or by check or in any other manner PERMITTED BY YOUR
GRANT NOTICE, which may include one or more of the following:
(a) In the Company's sole discretion at the time your option is
exercised and provided that at the time of exercise the Common Stock is publicly
traded and quoted regularly in The Wall Street Journal, pursuant to a program
developed under Regulation T as promulgated by the Federal Reserve Board that,
prior to the issuance of Common Stock, results in either the receipt of cash (or
check) by the Company or the receipt of irrevocable instructions to pay the
aggregate exercise price to the Company from the sales proceeds.
(b) Provided that at the time of exercise the Common Stock is
publicly traded and quoted regularly in The Wall Street Journal, by delivery of
already-owned shares of Common Stock either that you have held for the period
required to avoid a charge to the Company's reported earnings (generally six
months) or that you did not acquire, directly or indirectly from the Company,
that are owned free and clear of any liens, claims, encumbrances or security
interests, and that are valued at Fair Market Value on the date of exercise.
"Delivery" for these purposes, in the sole discretion of the Company at the time
you exercise your option, shall include delivery to the Company of your
attestation of ownership of such shares of Common Stock in a form approved by
the Company. Notwithstanding the foregoing, you may not exercise your option by
tender to the Company of Common Stock to the extent such tender would violate
the provisions of any law, regulation or agreement restricting the redemption of
the Company's stock.
(c) Pursuant to the following deferred payment alternative:
(i) Not less than one hundred percent (100%) of the
aggregate exercise price, plus accrued interest, shall be due four (4) years
from date of exercise or, at the Company's election, upon termination of your
Continuous Service for Cause.
(ii) Interest shall be compounded at least annually and
shall be charged at the minimum rate of interest necessary to avoid the
treatment as interest, under any applicable provisions of the Code, of any
portion of any amounts other than amounts stated to be interest under the
deferred payment arrangement.
(iii) At any time that the Company is incorporated in
Delaware, payment of the Common Stock's "par value," as defined in the Delaware
General Corporation Law, shall be made in cash and not by deferred payment.
(iv) In order to elect the deferred payment alternative,
you must, as a part of your written notice of exercise, give notice of the
election of this payment alternative and, in order to secure the payment of the
deferred exercise price to the Company hereunder, if the
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<PAGE> 6
Company so requests, you must tender to the Company a promissory note and a
security agreement covering the purchased shares of Common Stock, both in form
and substance satisfactory to the Company, or such other or additional
documentation as the Company may request.
5. WHOLE SHARES. You may exercise your option only for whole shares of
Common Stock.
6. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, you may not exercise your option unless the shares of Common
Stock issuable upon such exercise are then registered under the Securities Act
or, if such shares of Common Stock are not then so registered, the Company has
determined that such exercise and issuance would be exempt from the registration
requirements of the Securities Act. The exercise of your option must also comply
with other applicable laws and regulations governing your option, and you may
not exercise your option if the Company determines that such exercise would not
be in material compliance with such laws and regulations.
7. TERM. You may not exercise your option before the commencement of its
term or after its term expires. The term of your option commences on the Date of
Grant and expires upon the EARLIEST of the following:
(a) the applicable date set forth in subsection 1(a), provided
that if during the period provided for in section 1(a) your
option is not exercisable solely because of the condition
set forth in the preceding paragraph relating to "Securities
Law Compliance," your option shall not expire until the
earlier of the Expiration or until it shall have been
exercisable for an aggregate period of three months after
termination of such condition.
(b) the Expiration Date indicated in your Grant Notice; or
(c) the day before the tenth (10th) anniversary of the Date of
Grant.
If your option is an incentive stock option, note that, to obtain the
federal income tax advantages associated with an "incentive stock option," the
Code requires that at all times beginning on the date of grant of your option
and ending on the day three (3) months before the date of your option's
exercise, you must be an employee of the Company or an Affiliate, except in the
event of your death or Disability. The Company has provided for extended
exercisability of your option under certain circumstances for your benefit but
cannot guarantee that your option will necessarily be treated as an "incentive
stock option" if you continue to provide services to the Company or an Affiliate
as a Consultant or Director after your employment terminates or if you otherwise
exercise your option more than three (3) months after the date your employment
terminates.
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<PAGE> 7
8. EXERCISE.
(a) You may exercise the vested portion of your option (and the
unvested portion of your option if your Grant Notice so permits) during its term
by delivering a Notice of Exercise (in a form designated by the Company)
together with the exercise price to the Secretary of the Company, or to such
other person as the Company may designate, during regular business hours,
together with such additional documents as the Company may then require.
(b) By exercising your option you agree that, as a condition to
any exercise of your option, the Company may require you to enter into an
arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of (1) the exercise of
your option, (2) the lapse of any substantial risk of forfeiture to which the
shares of Common Stock are subject at the time of exercise, or (3) the
disposition of shares of Common Stock acquired upon such exercise.
(c) If your option is an incentive stock option, by exercising
your option you agree that you will notify the Company in writing within fifteen
(15) days after the date of any disposition of any of the shares of the Common
Stock issued upon exercise of your option that occurs within two (2) years after
the date of your option grant or within one (1) year after such shares of Common
Stock are transferred upon exercise of your option.
(d) By exercising your option you agree that the Company (or a
representative of the underwriter(s)) may, in connection with the first
underwritten registration of the offering of any securities of the Company under
the Securities Act, require that you not sell, dispose of, transfer, make any
short sale of, grant any option for the purchase of, or enter into any hedging
or similar transaction with the same economic effect as a sale, any shares of
Common Stock or other securities of the Company held by you, for a period of
time specified by the underwriter(s) (not to exceed one hundred eighty (180)
days) following the effective date of the registration statement of the Company
filed under the Securities Act. You further agree to execute and deliver such
other agreements as may be reasonably requested by the Company and/or the
underwriter(s) that are consistent with the foregoing or that are necessary to
give further effect thereto. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to your shares of
Common Stock until the end of such period.
9. TRANSFERABILITY. Your option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise your
option
10. RIGHT OF FIRST REFUSAL. At the Committee's discretion, Common Stock
issued pursuant to the exercise of an Option may be subject to a requirement
that if you propose to sell, pledge, or otherwise transfer any Common Stock
acquired pursuant to exercise of an Option, or any interest in such Common
Stock, to any person or entity, the Company will have a right of first refusal
(the "Right of First Refusal") with respect to such Common Stock. If you desire
to transfer Common Stock subject to the Right of First Refusal, then you will
give a
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<PAGE> 8
written notice (the "Transfer Notice") to the Company describing fully the
proposed transfer, including the number of shares of Common Stock proposed to be
transferred, the proposed transfer price, and the name and address of the
proposed transferee. The Transfer Notice will be signed both by you and by the
proposed transferee and must constitute a binding commitment of both parties to
the transfer of the Common Stock. The Company will have the right to purchase
the Common Stock subject to the Transfer Notice on the terms of the proposal
referred to in the Transfer Notice, subject to any change in such terms
permitted under subsection 10(a), by delivery of a notice of exercise of the
Right of First Refusal within 30 days after the date the Transfer Notice is
received by the Company. The Company's rights under this Section 10 will be
freely assignable, in whole or in part.
(a) TRANSFER OF SHARES. If the Company fails to exercise the
Right of First Refusal within 30 days after the date on which it receives the
Transfer Notice, then you may, not later than six months following receipt of
the Transfer Notice by the Company, consummate a transfer of the Common Stock
subject to the Transfer Notice on the terms and conditions described in the
Transfer Notice. Any proposed transfer on terms and conditions different from
those described in the Transfer Notice, as well as any subsequent proposed
transfer by you, will again be subject to the Right of First Refusal and will
again require compliance with the procedure described in Section 10(a). If the
Company exercises its Right of First Refusal, then you will immediately endorse
and deliver to the Company every stock certificate representing the Common Stock
being purchased, and the Company will then promptly pay the purchase price in
accordance with the terms set forth in the Transfer Notice.
(b) REPURCHASE PAYMENT. The amount payable to you pursuant to
the Company's exercise of the Right of First Refusal will be paid to you in
accordance with the terms and conditions of the Transfer Notice or may, at the
election of the Company, be paid in full in cash.
(c) BINDING EFFECT. The Company's Right of First Refusal will
inure to the benefit of its successors and assigns and will be binding upon any
transferee of the Common Stock, other than a transferee acquiring Common Stock
in a transaction with respect to which the Company failed to exercise its Right
of First Refusal (a "Free Transferee") or a transferee of a Free Transferee.
(d) TERMINATION OF RIGHT OF FIRST REFUSAL. Notwithstanding any
other provision of this Section 10, if the Common Stock is listed on any United
States securities exchange or traded on any formal over-the-counter market in
general use in the United States at the time you desire to transfer your Common
Stock, the Company will no longer have the Right of First Refusal, and you will
have no obligation to comply with this Section 10.
11. RIGHT OF REPURCHASE. At the Committee's discretion, Common Stock
issued pursuant to the exercise of an Option may be subject to a right, but not
an obligation, of repurchase by the Corporation (the "Right of Repurchase"), at
the price specified in subsection 11(a), if you cease to be an Employee for any
reason ("Employment Termination") at any time after the grant of the Option
pursuant to which such Common Stock was issued. Common Stock issued by the
Company will only be transferable by you subject to the Right of Repurchase, and
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<PAGE> 9
the Company will legend the Right of Repurchase on the stock certificates
evidencing such shares of Common Stock and will take such other steps as it
deems necessary to ensure compliance with this restriction. The Company's rights
under this Section 11 will be freely assignable, in whole or in part.
(a) REPURCHASE PRICE. The price per share per share of Common
Stock at which the Company may exercise the Right of Repurchase under Section 11
(the "Repurchase Price") will be the higher of the exercise price of each share
of Common Stock as paid by you, or fair market value of the shares of Common
Stock on the date the Company sends the notice to you of its exercise of its
Right of Repurchase pursuant to Section 11, provided, however, that
notwithstanding the definition of "fair market value" in the Plan, if you do not
agree with the determination of fair market value by the Company's Board of
Directors, fair market value shall be determined by the dispute resolution
procedures set forth in Section 12 below independently of any determination of
the Company or its Board of Directors.
(b) REPURCHASE PROCEDURE. The Company may exercise its Right of
Repurchase by sending a written notice to you and to the Escrow Agent, if any,
of its taking such action and specifying the number of shares of Common Stock
being repurchased. The Company's Right of Repurchase will terminate if not
exercised by written notice from the Company to you within 30 days of the date
on which the Company learns of the Employment Termination or the last date any
Option granted to you is exercised, which ever is later. If the Company
exercises its Right of Repurchase, then you, or if applicable, the Escrow Agent,
will deliver to the Company every stock certificate representing the shares of
Common Stock being repurchased, together with appropriate Assignments Separate
from Certificates, and the Company will then promptly pay the total Repurchase
Price in cash (or cancellation of purchase money indebtedness for the Common
Stock, if applicable) to you, or if applicable, to the Escrow Agent, for
delivery to you.
(c) ELECTION TO DEFER PURCHASE OF INCENTIVE STOCK OPTION SHARES.
(i) Notwithstanding the preceding provisions of this
Section 11, if shares of Common Stock were issued to you pursuant to an
Incentive Stock Option, then you may elect to defer the Company's repurchase of
such Common Stock pursuant to this Section 11 until the holding period
requirements of Section 422(a) of the Code are met. Such election will be in
writing in such form as the Committee may require and will be delivered to the
Company and to the Escrow Agent by certified mail no later than seven days after
the date on which you receive notice that the Company elects to exercise its
Right of Repurchase. Such election will pertain to all such Common Stock issued
to you and will be irrevocable.
(ii) If you make the election described in subsection
11(c), then the Company will repurchase such Common Stock on or before the date
which is 90 days following the earlier of the date on which you die or the date
on which the holding period requirements of Section 422(a) of the Code are met.
The Repurchase Price of each such share of Common Stock determined under
subsection 11(a) will be calculated by substituting for your Employment
Termination date the earlier of the date on which you die or the date on which
such holding period requirements are met.
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<PAGE> 10
(d) ESCROW. To facilitate the consummation of the Company's
Right of Repurchase under this Section 11, at the request of the Committee, you
and the Company will execute Joint Escrow Instructions and you will deliver and
deposit with the Escrow Agent named in the Joint Escrow Instructions two
"Assignments Separate from Certificate," together with all certificates
evidencing the shares of Common Stock issued to you pursuant to the Plan, duly
endorsed in blank. The Escrow Agent will hold such documents and deliver the
same to the Company pursuant to the Joint Escrow Instructions and in accordance
with the terms of this Section 11, as applicable.
(e) BINDING EFFECT. The Company's Right of Repurchase will inure
to the benefit of its successors and assigns and will be binding on any of your
representatives, executors, administrators, heirs, or legatees.
(f) PAYMENT OF NET AMOUNT OWING. Notwithstanding anything to the
contrary contained herein, if the Company determines to exercise its Rights of
Repurchase pursuant to this subsection before any Common Stock has been issued
as a result of an exercise of an Option, in lieu of issuing any Common Stock,
the Company will have the right, but not the obligation, to pay to you the net
amount owing to you.
(g) TERMINATION OF RIGHT OF REPURCHASE. Notwithstanding any
other provision of this Section 11, in the event that the Common Stock is listed
on any United States securities exchange or traded on any formal
over-the-counter market in general use in the United States at the time you
would otherwise be required to transfer your Common Stock, the Company will no
longer have the Right of Repurchase, and you will have no obligation to comply
with this Section 11.
12. DISPUTE RESOLUTION. In the event of any dispute arising under this
Agreement, authorized representatives of the Parties shall meet or communicate
by phone or otherwise no later than ten working days after receipt of notice by
either Party of request for dispute resolution and shall enter into good faith
negotiations aimed at resolving the dispute.
At the end of such 10 days, if no agreement resolving the dispute has
been reached, any action arising out of or related to this Agreement, excluding
intellectual property disputes, shall be submitted to binding arbitration under
the then-current commercial arbitration rules of the American Arbitration
Association. The arbitration shall be conducted in San Diego California by three
arbitrators, each of whom shall be an expert in the area of the Internet
industry and not associated with either Party. Each party shall have the right
to select one such arbitrator, and the two selected arbitrators shall select the
third. The decision of the arbitrators shall be binding on the Parties, and
judgment in accordance with that decision may be entered in any court having
jurisdiction thereof. If there is any dispute concerning the fair market value
of Common Stock and the arbitrators decide that the fair market value is higher
than determined by the Company, then the Company shall pay all expenses
associated with such arbitration, including the expenses of the neutral
arbitrators. In all other cases, each party shall pay its own expenses
associated with such arbitration, but the Company shall pay 80% of the expenses
of the neutral arbitrators.
10
<PAGE> 11
13. OPTION NOT A SERVICE CONTRACT. Your option is not an employment or
service contract, and nothing in your option shall be deemed to create in any
way whatsoever any obligation on your part to continue in the employ of the
Company or an Affiliate, or of the Company or an Affiliate to continue your
employment. In addition, nothing in your option shall obligate the Company or an
Affiliate, their respective shareholders, Boards of Directors, Officers or
Employees to continue any relationship that you might have as a Director or
Consultant for the Company or an Affiliate.
14. WITHHOLDING OBLIGATIONS.
(a) At the time you exercise your option, in whole or in part,
or at any time thereafter as requested by the Company, you hereby authorize
withholding from payroll and any other amounts payable to you, and otherwise
agree to make adequate provision for (including by means of a "cashless
exercise" pursuant to a program developed under Regulation T as promulgated by
the Federal Reserve Board to the extent permitted by the Company), any sums
required to satisfy the federal, state, local and foreign tax withholding
obligations of the Company or an Affiliate, if any, which arise in connection
with your option.
(b) Upon your request and subject to approval by the Company, in
its sole discretion, and compliance with any applicable conditions or
restrictions of law, the Company may withhold from fully vested shares of Common
Stock otherwise issuable to you upon the exercise of your option a number of
whole shares of Common Stock having a Fair Market Value, determined by the
Company as of the date of exercise, not in excess of the minimum amount of tax
required to be withheld by law. If the date of determination of any tax
withholding obligation is deferred to a date later than the date of exercise of
your option, share withholding pursuant to the preceding sentence shall not be
permitted unless you make a proper and timely election under Section 83(b) of
the Code, covering the aggregate number of shares of Common Stock acquired upon
such exercise with respect to which such determination is otherwise deferred, to
accelerate the determination of such tax withholding obligation to the date of
exercise of your option. Notwithstanding the filing of such election, shares of
Common Stock shall be withheld solely from fully vested shares of Common Stock
determined as of the date of exercise of your option that are otherwise issuable
to you upon such exercise. Any adverse consequences to you arising in connection
with such share withholding procedure shall be your sole responsibility.
(c) You may not exercise your option unless the tax withholding
obligations of the Company and/or any Affiliate are satisfied. Accordingly, you
may not be able to exercise your option when desired even though your option is
vested, and the Company shall have no obligation to issue a certificate for such
shares of Common Stock or release such shares of Common Stock from any escrow
provided for herein.
15. NOTICES. Any notices provided for in your option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by mail by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at the last
address you provided to the Company.
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<PAGE> 12
16. GOVERNING PLAN DOCUMENT. Except as otherwise set forth herein, your
option is subject to all the provisions of the Plan, the provisions of which are
hereby made a part of your option, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan.
WEBSIDESTORY, INC. OPTIONHOLDER:
By: /s/ Michael S. Christian /s/ John J. Hentrich
--------------------------------- ------------------------------------
Signature Signature
Title: Senior Vice President Date:
----------------------------- -------------------------------
Date:
------------------------------
12
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WEBSIDESTORY, INC.
STOCK OPTION GRANT NOTICE
(2000 EQUITY INCENTIVE PLAN)
WebSideStory, Inc. (the "Company"), pursuant to its 2000 Equity Incentive Plan
(the "Plan"), hereby grants to Optionholder an option to purchase the number of
shares of the Company's Common Stock set forth below. This option is subject to
all of the terms and conditions as set forth herein and in the Stock Option
Agreement, the Plan (except as set forth in the Stock Option Agreement), and the
Notice of Exercise, all of which are attached hereto and incorporated herein in
their entirety.
Optionholder: John J. Hentrich
Date of Grant: December 20, 1999
Vesting Commencement Date: December 20, 1999
Number of Shares Subject to Option: 7,947,928
Exercise Price (Per Share): $0.175
Total Exercise Price: $1,390,887.40
Expiration Date: December 20, 2009
TYPE OF GRANT: [ ] Incentive Stock Option(1) [ ] Nonstatutory Stock Option
EXERCISE SCHEDULE: [ ] Same as Vesting Schedule [ ] Early Exercise Permitted
VESTING-SCHEDULE: 571,428 of the shares vest immediately upon the Vesting
Commencement Date. 1/35th of the remaining shares vest
monthly commencing January 19, 2000 and ending November 19,
2002; provided, however, that, in the event that the
Continuous Service of an Optionholder terminates due to an
involuntary termination (not including death or Disability)
without Cause (as defined in the Option Agreement) or due to
a Constructive Termination (as defined in the Option
Agreement), then fifty percent (50%) of the total number of
unvested shares shall immediately vest, provided, further,
that in the event of a Change in Control (as defined in the
Option Agreement), fifty percent (50%) of the total number of
unvested shares shall immediately vest; provided, further,
that in the event that the Continuous Service of Optionholder
terminates due to an involuntary termination (not including
death or Disability) without Cause (as defined in the Option
Agreement) or due to a Constructive Termination (as defined
in the Option Agreement) within sixty days prior to or any
time after a Change of Control (or agreement to effect a
Change of Control), then all of the unvested shares shall
become immediately vested.
PAYMENT: By one or a combination of the following items (described in
the Stock Option Agreement):
By cash or check
Pursuant to a Regulation T Program if the Shares are
publicly traded
By delivery of already-owned shares if the Shares are
publicly traded
By deferred payment
ADDITIONAL TERMS/ACKNOWLEDGEMENTS: The undersigned Optionholder acknowledges
receipt of, and understands and agrees to, this Grant Notice, the Stock Option
Agreement and the Plan. Optionholder further acknowledges that as of the Date of
Grant, this Grant Notice, the Stock Option Agreement and the Plan set forth the
entire understanding between Optionholder and the Company regarding the
acquisition of stock in the Company and supersede all prior oral and written
agreements on that subject.
- --------
(1) If this is an incentive stock option, it (plus your other outstanding
incentive stock options) cannot be first exercisable for more than $100,000 in
any calendar year. Any excess over $100,000 is a nonstatutory stock option.
<PAGE> 14
WEBSIDESTORY, INC. OPTIONHOLDER:
By: /s/ Michael S. Christian /s/ John J. Hentrich
-------------------------------- ------------------------------------
Signature Signature
Title: Senior Vice President Date:
----------------------------- -------------------------------
Date:
------------------------------
ATTACHMENTS: Stock Option Agreement, 2000 Equity Incentive Plan and Notice of
Exercise
<PAGE> 15
ATTACHMENT I
STOCK OPTION AGREEMENT
<PAGE> 16
ATTACHMENT II
2000 EQUITY INCENTIVE PLAN
<PAGE> 17
ATTACHMENT III
NOTICE OF EXERCISE
<PAGE> 1
EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated April 7, 2000
("Effective Date") is made by and between WebSideStory, Inc. ("the Company"), a
California corporation having its principal offices at 10182 Telesis Court, 6th
Floor, San Diego, CA and Meyar Sheik ("Employee").
AGREEMENT
1. Title and Duties. Employee's title and position with the Company
initially will be Vice President, Chief Marketing Officer-Enterprise. Employee
shall devote all of his business time and attention, energy and skills to the
Company during his employment under this Agreement. Employee's duties will be as
assigned by the Company's President and Chief Executive Officer, or his
designee. The Company reserves the right to change Employee's duties,
assignments, responsibilities or title and the person to whom Employee reports
at any time at the sole discretion of the President and Chief Executive Officer.
Employee's employment will commence no later than April 7, 2000.
2. At-will Employment. Employee's employment relationship with the
Company is at-will, terminable at any time and for any reason by either the
Company or Employee. While certain paragraphs of this Agreement describe events
that could occur at a particular time in the future, nothing in this Agreement
may be construed as a guarantee of employment of any length.
3. Policy Compliance. Employee is required to comply with the Company
policy, practice and procedure in effect during his employment. Employee agrees
to comply with the terms and conditions of the Company's Confidentiality and
Inventions Agreement ("Confidentiality Agreement") that is attached to this
Agreement as Exhibit 1 and is incorporated by reference.
4. Compensation.
4.1 Starting Salary. Employee will receive a compensation of Five
Thousand Dollars ($5,000) for the period from the Effective Date of this
Agreement through April 17, 2000. This amount is subject to applicable federal,
state and local income, social security and other payroll deductions.
4.2 Base Salary. Employee's annual Base Salary commencing April 17,
2000, will be One Hundred and Seventy-Five Thousand Dollars ($175,000) to be
paid according to the Company's regular payroll practices. Any increase to the
Base Salary is within the sole discretion of the Board. The Base Salary
described above is subject to deduction for applicable federal, state and local
income, social security and other payroll deductions.
4.3 Financial Objective Bonus. In addition to the Base Salary, in
Fiscal Year 2000 Employee is eligible for bonus compensation of up to One
Hundred and Fifteen Thousand Dollars ($115,000) contingent upon accomplishment
of certain financial objectives defined at the sole discretion of the Company as
follows:
4.3.1 If in Fiscal Year 2000 the Company achieves total gross
annual revenues of at least Six Million Five Hundred Thousand Dollars
($6,500,000) from sales made
<PAGE> 2
from the United States related to its Enterprise services, Employee will be
entitled to a bonus of Thirty-Five Thousand Dollars ($35,000);
4.3.2 If in Fiscal Year 2000 the Company achieves total gross
annual revenues of at least Seven Million Five Hundred Thousand Dollars
($7,500,000) from sales made from the United States of its Enterprise services,
Employee will be entitled to an additional bonus of Forty-Five Thousand Dollars
($45,000);
4.3.3 If in Fiscal Year 2000 the Company achieves total gross
annual revenues of at least Eight Million Five Hundred Thousand Dollars
($8,500,000) from sales made from the United States of its Enterprise services,
Employee will be entitled to an additional bonus of Thirty-Five Thousand Dollars
($35,000).
4.3.4 Employee will be eligible receive each bonus level
described in Sections 4.3.1 through 4.3.3 once the condition of the bonus is met
within the Fiscal Year 2000, and not necessarily at the end of the fiscal year.
4.3.5 Employee will be eligible for a financial objective bonus
in Fiscal Year 2001 in an amount to be determined at the sole discretion of the
Company and upon accomplishment of Fiscal Year 2001 financial objectives to be
determined on or before December 31, 2000 at the sole discretion of the Company.
5. Moving Expenses. The Company will reimburse Employee for reasonable
moving expenses up to Twenty Nine Thousand Five Hundred Dollars ($29,500) upon
submission of supporting receipts. The tax treatment of the payment described in
this Section 5 will be according to California and federal law. In the event
Employee resigns his employment with the Company within the first year of
employment, he will reimburse the Company any amounts expended by the Company
for moving expenses.
6. Temporary Housing. The Company will provide Employee with temporary
housing through July 31, 2000 and will reimburse Employee the reasonable airfare
and transportation expenses expended by Employee for three (3) visits to his
family. The Company will also reimburse Employee for reasonable airfare and
transportation expenses for his three (3) family members from New York to San
Diego for a visit prior to the final move from New York to San Diego. Employee
will endeavor to plan ahead to reduce expenses. The Company will reimburse
Employee for the reasonable airfare and transportation expenses expended by
Employee for his original trip from New York to San Diego and for his reasonable
hotel and transportation expenses, prior to securing temporary housing and
permanent local transportation.
7. Stock Options.
7.1 Grant of Options. On the Effective Date, the Company will grant
to Employee non-statutory options representing the right to purchase up to
500,000 shares of the Company's Common Stock (collectively the "Options")
pursuant to the Company's 2000 Equity Incentive Plan (the "Plan"), at the fair
market value determined at the next meeting of the Company's Board of Directors.
This grant is further subject to the terms and conditions of the Stock Option
Agreement reflecting that grant (the "Option Agreements"), as well as applicable
state and federal laws including, but not limited to, tax and securities laws.
Each Option shall
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entitle Employee to purchase one share of the Company's Common Stock. The
Options shall vest as set forth in Section 7.2 below.
7.2 Vesting Schedule.
7.2.1 153,846 Options will vest on the first anniversary of the
Effective Date;
7.2.2 The remaining Options (346,154) will vest at the rate of
the 3.704% (or 12,820.5 options) for each full month of Employee's continuous
service from the first anniversary for the next twenty-seven months (27 months)
of the Effective Date such that the Options will be fully vested thirty-nine
months (39 months) from the Effective Date.
7.3 Tax Implications. The Company does not make any warranty or
representation with respect to the tax consequence of any of the above grant of
options or tax consequences of any exercise of the options or consequent sale of
the shares purchased. Employee is advised to consult with his own tax advisor as
to the tax treatment of all aspects of the option grant contained in the
Agreement or Option Agreements.
8. Fringe Benefits. During his employment, Employee will receive any and
all fringe benefits then available to executive staff.
9. Reimbursement of Expenses. During his employment, subject to final
approval by the Board, Employee shall be entitled to reimbursement of reasonable
and actual expenses incurred on behalf of the Company.
10. Return Of Property. Employee agrees that all documents, records,
apparatus, equipment and other physical property (as more specifically defined
in the Confidentiality Agreement) which is furnished to or obtained by Employee
in the course of his employment with the Company shall be and remain the sole
property of the Company. Employee agrees that upon the termination of his
employment he will return all such property (whether or not it pertains to trade
secret or proprietary information), and will not make or retain copies,
reproductions, or summaries of any such property.
11. Non Competition. During his employment Employee shall not directly
or indirectly, either as an employee, employer, consultant, corporate officer,
director, or in any other individual or representative capacity, engage or
participate in any business that is in competition with the business of the
Company in any location, unless such participation or interest is fully
disclosed to the Company and approved by the Board.
12. Agreement with Previous Employers. Employee confirms he does not
have any agreement with a previous employer that prevents or limits him in
performing under this Agreement. In the event the Company is sued by any
previous employer of Employee as a result of any act by Employee, the Company
may recover costs or attorneys' fees expended in defending against such a
lawsuit.
13. Dispute Resolution Procedures. Any dispute or claim arising out of
this agreement shall be subject to final and binding arbitration. The
arbitration will be conducted by
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one arbitrator who is a member of the American Arbitration Association (AAA) and
will be governed by the Model Employment Arbitration rules of AAA. The
arbitration shall be held in San Diego, California. The arbitrator shall have an
authority to determine the arbitrability of any claim and enter a final and
binding judgment at the conclusion of any proceedings in respect of the
arbitration. Any final judgment only may be appealed on the grounds of improper
bias or improper conduct of the arbitrator. The arbitrator will apply California
substantive law in all respects. The arbitrator will decide how the costs of
arbitration should be split. In the event of any arbitration arising out of or
relating to this Agreement, its breach or enforcement, including an action for
declaratory relief, the prevailing party in such action or proceedings shall be
entitled to receive his or its damages, court costs and reasonable out-of-pocket
expenses including reasonable attorneys' fees. Such recovery shall include court
costs, reasonable out-of-pocket expenses, and attorneys' fees on appeal, if any.
The arbitrator or court shall determine who is the prevailing party, whether or
not the dispute or controversy proceeds to final judgment.
14. General Provisions.
14.1 Governing Law. This Agreement will be governed by and construed
according to California law, without regard to principles of conflict of laws.
14.2 Assignment. Employee may not assign, pledge or encumber his
interest in this Agreement or any part of this Agreement.
14.3 Binding Nature. This Agreement will be binding upon Employee,
his heirs, executors, and administrators and will inure to the benefit of the
Company, its subsidiaries, successors and assigns.
14.4 No Waiver of Breach. The failure to enforce any provision of
this Agreement will not be construed as a waiver of any such provision, nor
prevent a party thereafter from enforcing the provision or any other provision
of this Agreement. The rights granted the parties are cumulative, and the
election of one will not constitute a waiver of such party's right to assert all
other legal and equitable remedies available under the circumstances.
14.5 Severability. The provisions of this Agreement are severable,
and if any provision will be held to be invalid or otherwise unenforceable, in
whole or in part, the remainder of the provisions, or enforceable parts of this
Agreement, will not be affected.
14.6 Entire Agreement. This Agreement, including the Confidentiality
Agreement and any Option Agreements, constitutes the entire agreement of the
parties with respect to the subject matter of this Agreement, and supersedes all
prior and contemporaneous oral or written negotiations, agreements or
understandings between the parties.
14.7 Modification/Waiver. No modification, amendment,
supplementation, termination or attempted waiver of this Agreement will be valid
unless in writing, signed by the party against whom modification, amendment
termination or waiver is sought to be enforced.
14.8 Fees and Expenses. If any proceeding is brought for the
enforcement or interpretation of this Agreement, or because of any alleged
dispute, breach, default or misrepresentation in connection with any provisions
of this Agreement, the successful or
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prevailing party will be entitled to recover from the other party reasonable
attorneys' fees and other costs incurred in that proceeding (including, in the
case of an arbitration, arbitration fees and expenses), in addition to any other
relief to which such party may be entitled.
14.9 Duplicate Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original. Such counterparts
together constitute one instrument.
14.10 Interpretation. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14.11 Drafting Ambiguities. Each party to this Agreement and his or
its counsel have reviewed and revised this Agreement. The rule of construction
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any of the amendments to
this Agreement.
WebSideStory, Inc. Employee
By: /s/ JOHN HENTRICH /s/ MEYAR SHEIK
-------------------------------------- ----------------------
John Hentrich, Chief Executive Officer Meyar Sheik
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EXHIBIT 10.23
WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
RESEARCH AND DEVELOPMENT. WEBSIDESTORY'S RELATIONSHIP WITH ITS EMPLOYEES IS
BASED ON TRUST, AND EACH INDIVIDUAL WHO WORKS FOR WEBSIDESTORY IS EXPECTED TO
MAINTAIN A HIGH DEGREE OF PROFESSIONALISM. WE ARE IN A HIGHLY COMPETITIVE
BUSINESS AND WE WANT TO SUCCEED BY THE RULES, FAIR AND SQUARE.
THIS AGREEMENT, is effective as of the date shown on the signature line:
EMPLOYMENT Some of the conditions of your employment with WebSideStory, Inc.
(referred to in this agreement as "WebSideStory," the "Company," or "we") are on
the exhibit attached to this Agreement.
IF YOU KNOW OF ANY OBLIGATIONS THAT MAY CONFLICT WITH YOUR WORK FOR US, PLEASE
LET US KNOW AS SOON AS POSSIBLE.
NONINTERFERENCE WITH THIRD-PARTY RIGHTS The Company is employing you with the
understanding that (1) you are free to enter into employment with WebSideStory
and (2) only WebSideStory is entitled to the benefit of your work. WebSideStory
has no interest in using any other person's patents, copyrights, trade secrets,
or trademarks in an unlawful manner. You should be careful not to misapply
proprietary rights that WebSideStory has no right to use.
PLEASE OBSERVE THE TERMS OF THIS AGREEMENT, IT IS IMPORTANT.
CONTINUANCE OF EMPLOYMENT The faithful observance of this Agreement by you is,
and will remain, a condition of your employment. Also, your employment is
terminable at will by either you or WebSideStory at any time. WebSideStory asks
that as courtesy, you give at least two weeks' notice in advance of any
termination by you of your employment. WebSideStory reserves the absolute right
to make any changes in assignment, personnel, or employee benefits at any time.
WEBSIDESTORY'S CONFIDENTIAL INFORMATION AND WHATEVER YOU CREATE WHILE WORKING
FOR WEBSIDESTORY, IS OWNED BY WEBSIDESTORY. IN PART, THAT IS WHAT WE ARE PAYING
FOR.
EXISTING PROPRIETARY RIGHTS We are not aware of any patents, patent
applications, copyrights, trade secrets, or trademarks that you own, or have any
claim in. (If there are any, list them here).
OWNERSHIP OF WORK PRODUCT
a. WebSideStory will own all Work Product (as defined in this Agreement). All
Work Product will be considered work made for hire by you and owned by
WebSideStory.
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b. If any of the Work Product may not, by operation of law, be considered work
made for hire by you for WebSideStory, or if ownership of all right, title, and
interest of the intellectual property rights therein will not otherwise vest
exclusively in WebSideStory, you agree to assign, and upon creation thereof
automatically assign, without further consideration, the ownership of all Trade
Secrets as defined in this Agreement, U.S. and international copyrights,
patentable inventions, and other intellectual property rights therein to
WebSideStory, its successors, and assigns.
c. WebSideStory, its successors, and assigns, will have the right to obtain and
hold in its or their own name copyrights, registrations, and any other
protection available in the foregoing.
d. You agree to perform, upon the reasonable request of WebSideStory, during or
after your employment, such further acts as may be necessary or desirable to
transfer, perfect, and defend WebSideStory's ownership of the Work Product. When
requested, you will:
1. execute, acknowledge, and deliver any requested affidavits and documents
of assignment and conveyance;
2. obtain and aid in the enforcement of copyrights and, if applicable,
patents with respect to the Work Product in any countries;
3. provide testimony in connection with any proceeding affecting the right,
title, or interest of WebSideStory in any Work Product; and
4. perform any other acts as necessary or desirable to carry out the
purposes of this Agreement.
WebSideStory will reimburse all reasonable out-of-pocket expense, incurred by
you at WebSideStory's request, in connection with the above, including (unless
you are otherwise being compensated at the time) a reasonable per diem or hourly
fee for services rendered following termination of your employment.
e. In this Agreement, "Work Product" means all intellectual property rights,
including all confidential information, confidential documents, trade secrets,
works of copyrightable authorship, U.S. and international copyrights, patentable
inventions, US and foreign letters patent, discoveries and improvements, all
trademarks and other intellectual property rights, in any programming,
documentation, technology relating to the business and interests of
WebSideStory, including any such technology that you conceive, develop, or
deliver to WebSideStory at any time during the term of your employment. Work
Product also includes all intellectual property rights in any programming,
documentation, technology, or other work product that is now contained in any of
the products or systems, including development and support systems, of
WebSideStory to the extent you conceived, developed, or delivered such Work
Product to WebSideStory prior to the date of this Agreement while you were
engaged as an independent contractor or an employee of WebSideStory. You
irrevocably give up, for the benefit of WebSideStory and its assigns, any moral
rights in the any works of copyrightable authorship recognized by applicable
law.
EXCEPTIONS Except as set forth above, WebSideStory will not make claim to any
invention for which no equipment, supplies, facilities, or WebSideStory
confidential information was used, which was developed entirely on your own
time, and which does not (i) relate to the business of WebSideStory (ii) relate
to WebSideStory's actual or demonstrable anticipated research or development, or
(iii) result from any work performed by you for Employer.
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YOU AGREE TO KEEP WEBSIDESTORY CONFIDENTIAL INFORMATION IN STRICT CONFIDENCE.
WEBSIDESTORY CONFIDENTIALITY Your position with WebSideStory requires
considerable responsibility and trust. Relying on your ethical responsibility
and undivided loyalty, WebSideStory expects to entrust you with highly sensitive
confidential, restricted, and proprietary information involving Trade Secrets
(as defined below). It could prove very difficult to isolate these Trade Secrets
from business activities that you might consider pursuing after termination of
your employment, and in some instances, you may not be able to compete with
WebSideStory in certain ways because of the risk that WebSideStory's Trade
Secrets might be compromised. You are legally and ethically responsible for
protecting and preserving WebSideStory's proprietary rights for use only for
WebSideStory's benefit, and these responsibilities may impose unavoidable
limitations on your ability to pursue some kinds of business opportunities that
might interest you during or after your employment.
TRADE SECRETS DEFINED For purposes of this Agreement, a "Trade Secret" is any
information, including, but not limited to, technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, employee salaries, financial plans, product
plans, or lists of actual or potential customers or suppliers that: (1) derive
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from their disclosure or use; and (2) are the subject of efforts
that are reasonable under the circumstances to maintain their secrecy.
RESTRICTIONS ON USE AND DISCLOSURE OF TRADE SECRETS You agree not to use or
disclose any Trade Secrets of WebSideStory during your employment and for so
long afterwards as the pertinent information or data remain Trade Secrets,
regardless of whether the Trade Secrets are in written or tangible form, except
as required to perform any duties for WebSideStory.
SCREENING OF PUBLIC RELEASES OF INFORMATION In addition, and without any
intention of limiting your other obligations under this Agreement in any way,
you should not, during your employment, reveal any non-public information
concerning the technology pertaining to the proprietary products and
manufacturing processes of WebSideStory (particularly technology under current
development or improvement), unless you have obtained written approval from
WebSideStory in advance. In that connection, you should submit to WebSideStory
for review any proposed scientific and technical articles and the text of any
public speeches relating to work done for WebSideStory before they are released
or delivered. WebSideStory has the right to disapprove and prohibit, or delete
any parts of such articles or speeches that might disclose WebSideStory's Trade
Secrets or other confidential information or otherwise be contrary to
WebSideStory's business interests.
UPON YOUR TERMINATION OF EMPLOYMENT WITH WEBSIDESTORY, YOU AGREE TO TURN
OVER ALL NOTES, DATA, DISKETTES, TAPES, REFERENCE ITEMS, SKETCHES OR
DRAWINGS, MEMORANDA, RECORDS, AND THE MATERIALS IN YOUR POSSESSION OR
CONTROL WHICH IN ANY WAY RELATE TO ANY WEBSIDESTORY CONFIDENTIAL
INFORMATION.
RETURN OF MATERIALS At the request of WebSideStory and, in any event, upon the
termination of your employment, you must return to WebSideStory and leave at its
disposal all memoranda, notes, records, drawings, manuals, computer programs,
documentation, diskettes, computer tapes, and other documents or media
pertaining to the business of WebSideStory or your specific duties for
WebSideStory, including all copies of such materials. You must also return to
WebSideStory and leave at its disposal all materials involving
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any Trade Secrets of WebSideStory. This Section is intended to apply to all
materials made or compiled by you, as well as to all materials furnished to you
by anyone else in connection with your employment. YOU ARE OBLIGATED TO CONTINUE
TO PROTECT WEBSIDESTORY'S CONFIDENTIAL INFORMATION, AFTER YOU LEAVE OUR
EMPLOYMENT.
UNFAIR COMPETITION Employee acknowledges and agrees that the sale or
unauthorized use or disclosure of any of WebSideStory's trade secrets obtained
by Employee during the course of his engagement, including information
concerning WebSideStory's current or any future and proposed work, series or
products, the facts that any such work services, or products are planned, under
consideration, or in production, as well as any descriptions thereof, constitute
unfair competition. Employee promises and agrees not to engage in any unfair
competition with WebSideStory, either during the term of his engagement or at
any time thereafter.
HIRING EMPLOYEES You agree, for a period ending one year after the termination
of your employment with WebSideStory, not to hire or engage, or attempt to hire
or engage, directly or indirectly, any individual who was an employee of
WebSideStory at any time during the one-year period prior to the date of your
termination of employment with WebSideStory, whether for or on behalf of you or
for any entity in which you have a direct or indirect interest, whether as a
proprietor, partner, stockholder, employee , agent, representative, or
otherwise.
IF ANY PART OF THIS AGREEMENT IS NOT LEGAL, THE OTHER LEGAL PARTS WILL REMAIN IN
FORCE.
SEVERABILITY The covenants in this Agreement will be construed as covenants
independent of one another and as obligations distinct from any other contract
between you and WebSideStory. Any claim that you may have against WebSideStory
will not constitute a defense to enforcement by WebSideStory of this Agreement.
SOME OF YOUR OBLIGATIONS WILL SURVIVE THE TERMINATION OF YOUR EMPLOYMENT
WITH WEBSIDESTORY.
SURVIVAL OF OBLIGATIONS The covenants in this Agreement concerning work product,
trade secrets, confidential information, unfair competition and hiring employees
will survive termination of your employment, regardless of who causes the
termination and under what circumstances.
WEBSIDESTORY WILL BE IRREPARABLY HARMED IF YOU BREACH WEBSIDESTORY
CONFIDENTIALITY OR TAKE TRADE SECRETS. TO PROTECT OURSELVES, WE MUST BE ABLE TO
STOP ANY EMPLOYEE IMMEDIATELY WHO MISAPPROPRIATES WEBSIDESTORY CONFIDENTIAL
INFORMATION OR TRADE SECRETS.
SPECIFIC PERFORMANCE AND CONSENT TO INJUNCTIVE RELIEF Irreparable harm will be
presumed if you breach any covenant in this Agreement. The faithful observance
of all covenants in this Agreement is an essential condition to your employment,
and WebSideStory is depending upon absolute compliance. Damages would probably
be very difficult to ascertain if you breached any covenant in this Agreement.
This Agreement is intended to protect the proprietary rights of WebSideStory in
many important ways. Even the threat of any misuse of the technology of
WebSideStory would be extremely harmful, since that technology is essential to
the business of WebSideStory. In light of these facts, you agree that any court
of competent jurisdiction should immediately enjoin any breach of this Agreement
upon the request of WebSideStory. Also, you specifically release WebSideStory
from the requirement of posting any bond in connection with temporary or
interlocutory injunctive relief, to the extent permitted by law.
HOW YOU RECEIVE NOTICES RELATING TO THIS AGREEMENT.
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NOTICES All notices required under this Agreement will be made in writing and
will be deemed given when (1) delivered in person, (2) deposited in the U.S.
mail, first class, with proper postage prepaid and properly addressed, or (3)
sent through the interoffice delivery service of WebSideStory, if you are still
employed by WebSideStory at the time.
THIS AGREEMENT APPLIES TO ALL WEBSIDESTORY RELATED PARTIES.
RELATED PARTIES This Agreement will inure to the benefit of, and be binding
upon, WebSideStory and its subsidiaries and its affiliates, together with their
successors and assigns, and you, together with your executor, administrator,
personal representative, heirs, and legatees.
THIS AGREEMENT REFLECTS THE TERMS OF YOUR EMPLOYMENT WITH WEBSIDESTORY. THE
TERMS OF ANY PRIOR LETTERS, NEGOTIATIONS, OR UNDERSTANDINGS THAT CONTRADICT ANY
PROVISION OF THIS AGREEMENT ARE UNENFORCEABLE.
MERGER This Agreement merges and supersedes all prior and contemporaneous
agreements, undertakings, covenants, or conditions, whether oral or written,
express or implied, to the extent that they contradict or conflict with the
terms and conditions hereof. This Agreement is not intended to modify or impair
the effectiveness of the general rules and policies WebSideStory may announce
from time to time.
ARBITRATION The parties agree that they will submit any dispute that arises
under this Agreement to arbitration in San Diego County, California. The parties
hereby agree to use a third party neutral referred by American Arbitration
Association who will conduct the arbitration under the American Arbitration
Association rules for Arbitration. The cost of the arbitration will be shared
equally by both parties.
CHOICE OF LAW This Agreement will be governed by and enforced under the laws of
the State of California, in San Diego County.
IN WITNESS WHEREOF, you, as an employee of WebSideStory, have entered and
executed this Agreement under seal, and WebSideStory has accepted your
undertaking.
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I HAVE CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT. I
UNDERSTAND AND ACKNOWLEDGE THAT THE TERMS AND CONDITIONS ARE FAIR AND APPEAR
REASONABLY REQUIRED FOR THE PROTECTION OF WEBSIDESTORY AND ITS BUSINESS.
EMPLOYEE:
/s/ THOMAS H. STIGLER
- -----------------------------------------------
NAME: THOMAS H. STIGLER
Date: April 25, 2000
----------------------------------------
SOCIAL SECURITY NO: - -
------ ---- -----
DRIVER'S LICENSE NO: STATE:
------------- ----
ADDRESS:
- -----------------------------------------------
- -----------------------------------------------
ACCEPTED:
WEBSIDESTORY INC.:
/s/ MICHAEL CHRISTIAN
- -----------------------------------------------
Michael Christian, senior vice president
Date: April 25, 2000
-----------------------------------------
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WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
EXHIBIT A
A1. SALARY
Employee will be paid an annual salary of $150,000.00 and other
remuneration as described in an offer letter dated February 9, 2000.
Employee's salary will be paid in equal installments at regular payroll
periods (every two weeks). Employee's salary will be reviewed
periodically by the president of WebSideStory and may be adjusted from
time to time at his sole discretion.
A2. DUTIES
Employee will be the Company's vice president, Enterprise sales and
business development. Employee's duties may be reasonably modified at
WebSideStory's discretion. Employee will be under the management of the
president. Employee will diligently execute such duties and will devote
substantially all of Employee's time, skill, and effort during ordinary
working hours to such duties.
A3. DEDUCTIONS
WebSideStory will deduct from any compensation payable to Employee the
sums that it is required by law to deduct, including but not limited to
federal and state withholding taxes, social security taxes and state
disability insurance.
A4. BENEFITS
Medical coverage is a benefit that WebSideStory provides for its
employees alone; spouses are excluded from coverage. At your own cost,
however, we do give you the option to include your spouse in the
medical and/or dental plan offered. Since WebSideStory is billed for
the spouse premium, we will in turn deduct the premium from your
paycheck. Employee will be entitled to medical coverage after a period
of 30 days.
A5. VACATION, ILLNESS, AND HOLIDAYS
Employee will be entitled each year to vacation time at full pay in
accordance with WebSideStory's vacation policy.
<PAGE> 1
EXHIBIT 10.25
WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
RESEARCH AND DEVELOPMENT. WEBSIDESTORY'S RELATIONSHIP WITH ITS EMPLOYEES IS
BASED ON TRUST, AND EACH INDIVIDUAL WHO WORKS FOR WEBSIDESTORY IS EXPECTED TO
MAINTAIN A HIGH DEGREE OF PROFESSIONALISM. WE ARE IN A HIGHLY COMPETITIVE
BUSINESS AND WE WANT TO SUCCEED BY THE RULES, FAIR AND SQUARE.
THIS AGREEMENT, is effective as of the date shown on the signature line:
EMPLOYMENT Some of the conditions of your employment with WebSideStory, Inc.
(referred to in this agreement as "WebSideStory," the "Company," or "we") are on
the exhibit attached to this Agreement.
IF YOU KNOW OF ANY OBLIGATIONS THAT MAY CONFLICT WITH YOUR WORK FOR US, PLEASE
LET US KNOW AS SOON AS POSSIBLE.
NONINTERFERENCE WITH THIRD-PARTY RIGHTS The Company is employing you with the
understanding that (1) you are free to enter into employment with WebSideStory
and (2) only WebSideStory is entitled to the benefit of your work. WebSideStory
has no interest in using any other person's patents, copyrights, trade secrets,
or trademarks in an unlawful manner. You should be careful not to misapply
proprietary rights that WebSideStory has no right to use.
PLEASE OBSERVE THE TERMS OF THIS AGREEMENT, IT IS IMPORTANT.
CONTINUANCE OF EMPLOYMENT The faithful observance of this Agreement by you is,
and will remain, a condition of your employment. Also, your employment is
terminable at will by either you or WebSideStory at any time. WebSideStory asks
that as courtesy, you give at least two weeks' notice in advance of any
termination by you of your employment. WebSideStory reserves the absolute right
to make any changes in assignment, personnel, or employee benefits at any time.
WEBSIDESTORY'S CONFIDENTIAL INFORMATION AND WHATEVER YOU CREATE WHILE WORKING
FOR WEBSIDESTORY, IS OWNED BY WEBSIDESTORY. IN PART, THAT IS WHAT WE ARE PAYING
FOR.
EXISTING PROPRIETARY RIGHTS We are not aware of any patents, patent
applications, copyrights, trade secrets, or trademarks that you own, or have any
claim in. (If there are any, list them here).
OWNERSHIP OF WORK PRODUCT
a. WebSideStory will own all Work Product (as defined in this Agreement ). All
Work Product will be considered work made for hire by you and owned by
WebSideStory.
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b. If any of the Work Product may not, by operation of law, be considered work
made for hire by you for WebSideStory, or if ownership of all right, title, and
interest of the intellectual property rights therein will not otherwise vest
exclusively in WebSideStory, you agree to assign, and upon creation thereof
automatically assign, without further consideration, the ownership of all Trade
Secrets as defined in this Agreement, U.S. and international copyrights,
patentable inventions, and other intellectual property rights therein to
WebSideStory, its successors, and assigns.
c. WebSideStory, its successors, and assigns, will have the right to obtain and
hold in its or their own name copyrights, registrations, and any other
protection available in the foregoing.
d. You agree to perform, upon the reasonable request of WebSideStory, during or
after your employment, such further acts as may be necessary or desirable to
transfer, perfect, and defend WebSideStory's ownership of the Work Product. When
requested, you will:
1. execute, acknowledge, and deliver any requested affidavits and documents of
assignment and conveyance;
2. obtain and aid in the enforcement of copyrights and, if applicable, patents
with respect to the Work Product in any countries;
3. provide testimony in connection with any proceeding affecting the right,
title, or interest of WebSideStory in any Work Product; and
4. perform any other acts as necessary or desirable to carry out the purposes of
this Agreement.
WebSideStory will reimburse all reasonable out-of-pocket expense, incurred by
you at WebSideStory's request, in connection with the above, including (unless
you are otherwise being compensated at the time) a reasonable per diem or hourly
fee for services rendered following termination of your employment.
e. In this Agreement, "Work Product" means all intellectual property rights,
including all confidential information, confidential documents, trade secrets,
works of copyrightable authorship, U.S. and international copyrights, patentable
inventions, US and foreign letters patent, discoveries and improvements, all
trademarks and other intellectual property rights, in any programming,
documentation, technology relating to the business and interests of
WebSideStory, including any such technology that you conceive, develop, or
deliver to WebSideStory at any time during the term of your employment. Work
Product also includes all intellectual property rights in any programming,
documentation, technology, or other work product that is now contained in any of
the products or systems, including development and support systems, of
WebSideStory to the extent you conceived, developed, or delivered such Work
Product to WebSideStory prior to the date of this Agreement while you were
engaged as an independent contractor or an employee of WebSideStory. You
irrevocably give up, for the benefit of WebSideStory and its assigns, any moral
rights in the any works of copyrightable authorship recognized by applicable
law.
EXCEPTIONS Except as set forth above, WebSideStory will not make claim to any
invention for which no equipment, supplies, facilities, or WebSideStory
confidential information was used, which was developed entirely on your own
time, and which does not (i) relate to the business of WebSideStory (ii) relate
to WebSideStory's actual or demonstrable anticipated research or development, or
(iii) result from any work performed by you for Employer.
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YOU AGREE TO KEEP WEBSIDESTORY CONFIDENTIAL INFORMATION IN STRICT CONFIDENCE.
WEBSIDESTORY CONFIDENTIALITY Your position with WebSideStory requires
considerable responsibility and trust. Relying on your ethical responsibility
and undivided loyalty, WebSideStory expects to entrust you with highly sensitive
confidential, restricted, and proprietary information involving Trade Secrets
(as defined below). It could prove very difficult to isolate these Trade Secrets
from business activities that you might consider pursuing after termination of
your employment, and in some instances, you may not be able to compete with
WebSideStory in certain ways because of the risk that WebSideStory's Trade
Secrets might be compromised. You are legally and ethically responsible for
protecting and preserving WebSideStory's proprietary rights for use only for
WebSideStory's benefit, and these responsibilities may impose unavoidable
limitations on your ability to pursue some kinds of business opportunities that
might interest you during or after your employment.
TRADE SECRETS DEFINED For purposes of this Agreement, a "Trade Secret" is any
information, including, but not limited to, technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, employee salaries, financial plans, product
plans, or lists of actual or potential customers or suppliers that: (1) derive
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from their disclosure or use; and (2) are the subject of efforts
that are reasonable under the circumstances to maintain their secrecy.
RESTRICTIONS ON USE AND DISCLOSURE OF TRADE SECRETS You agree not to use or
disclose any Trade Secrets of WebSideStory during your employment and for so
long afterwards as the pertinent information or data remain Trade Secrets,
regardless of whether the Trade Secrets are in written or tangible form, except
as required to perform any duties for WebSideStory.
SCREENING OF PUBLIC RELEASES OF INFORMATION In addition, and without any
intention of limiting your other obligations under this Agreement in any way,
you should not, during your employment, reveal any non-public information
concerning the technology pertaining to the proprietary products and
manufacturing processes of WebSideStory (particularly technology under current
development or improvement), unless you have obtained written approval from
WebSideStory in advance. In that connection, you should submit to WebSideStory
for review any proposed scientific and technical articles and the text of any
public speeches relating to work done for WebSideStory before they are released
or delivered. WebSideStory has the right to disapprove and prohibit, or delete
any parts of such articles or speeches that might disclose WebSideStory's Trade
Secrets or other confidential information or otherwise be contrary to
WebSideStory's business interests.
UPON YOUR TERMINATION OF EMPLOYMENT WITH WEBSIDESTORY, YOU AGREE TO TURN OVER
ALL NOTES, DATA, DISKETTES, TAPES, REFERENCE ITEMS, SKETCHES OR DRAWINGS,
MEMORANDA, RECORDS, AND THE MATERIALS IN YOUR POSSESSION OR CONTROL WHICH IN ANY
WAY RELATE TO ANY WEBSIDESTORY CONFIDENTIAL INFORMATION.
RETURN OF MATERIALS At the request of WebSideStory and, in any event, upon the
termination of your employment, you must return to WebSideStory and leave at its
disposal all memoranda, notes, records, drawings, manuals, computer programs,
documentation, diskettes, computer tapes, and other documents or media
pertaining to the business of WebSideStory or your specific duties for
WebSideStory, including all copies of such materials. You must also return to
WebSideStory and leave at its disposal all materials involving
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any Trade Secrets of WebSideStory. This Section is intended to apply to all
materials made or compiled by you, as well as to all materials furnished to you
by anyone else in connection with your employment. YOU ARE OBLIGATED TO CONTINUE
TO PROTECT WEBSIDESTORY'S CONFIDENTIAL INFORMATION, AFTER YOU LEAVE OUR
EMPLOYMENT.
UNFAIR COMPETITION Employee acknowledges and agrees that the sale or
unauthorized use or disclosure of any of WebSideStory's trade secrets obtained
by Employee during the course of his engagement, including information
concerning WebSideStory's current or any future and proposed work, series or
products, the facts that any such work services, or products are planned, under
consideration, or in production, as well as any descriptions thereof, constitute
unfair competition. Employee promises and agrees not to engage in any unfair
competition with WebSideStory, either during the term of his engagement or at
any time thereafter.
HIRING EMPLOYEES You agree, for a period ending one year after the termination
of your employment with WebSideStory, not to hire or engage, or attempt to hire
or engage, directly or indirectly, any individual who was an employee of
WebSideStory at any time during the one-year period prior to the date of your
termination of employment with WebSideStory, whether for or on behalf of you or
for any entity in which you have a direct or indirect interest, whether as a
proprietor, partner, stockholder, employee, agent, representative, or
otherwise.
IF ANY PART OF THIS AGREEMENT IS NOT LEGAL, THE OTHER LEGAL PARTS WILL REMAIN IN
FORCE.
SEVERABILITY The covenants in this Agreement will be construed as covenants
independent of one another and as obligations distinct from any other contract
between you and WebSideStory. Any claim that you may have against WebSideStory
will not constitute a defense to enforcement by WebSideStory of this Agreement.
SOME OF YOUR OBLIGATIONS WILL SURVIVE THE TERMINATION OF YOUR EMPLOYMENT WITH
WEBSIDESTORY.
SURVIVAL OF OBLIGATIONS The covenants in this Agreement concerning work product,
trade secrets, confidential information, unfair competition and hiring employees
will survive termination of your employment, regardless of who causes the
termination and under what circumstances.
WEBSIDESTORY WILL BE IRREPARABLY HARMED IF YOU BREACH WEBSIDESTORY
CONFIDENTIALITY OR TAKE TRADE SECRETS. TO PROTECT OURSELVES, WE MUST BE ABLE TO
STOP ANY EMPLOYEE IMMEDIATELY WHO MISAPPROPRIATES WEBSIDESTORY CONFIDENTIAL
INFORMATION OR TRADE SECRETS.
SPECIFIC PERFORMANCE AND CONSENT TO INJUNCTIVE RELIEF Irreparable harm will be
presumed if you breach any covenant in this Agreement. The faithful observance
of all covenants in this Agreement is an essential condition to your employment,
and WebSideStory is depending upon absolute compliance. Damages would probably
be very difficult to ascertain if you breached any covenant in this Agreement.
This Agreement is intended to protect the proprietary rights of WebSideStory in
many important ways. Even the threat of any misuse of the technology of
WebSideStory would be extremely harmful, since that technology is essential to
the business of WebSideStory. In light of these facts, you agree that any court
of competent jurisdiction should immediately enjoin any breach of this Agreement
upon the request of WebSideStory. Also, you specifically release WebSideStory
from the requirement of posting any bond in connection with temporary or
interlocutory injunctive relief, to the extent permitted by law.
HOW YOU RECEIVE NOTICES RELATING TO THIS AGREEMENT.
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NOTICES All notices required under this Agreement will be made in writing and
will be deemed given when (1) delivered in person, (2) deposited in the U.S.
mail, first class, with proper postage prepaid and properly addressed, or (3)
sent through the interoffice delivery service of WebSideStory, if you are still
employed by WebSideStory at the time.
THIS AGREEMENT APPLIES TO ALL WEBSIDESTORY RELATED PARTIES.
RELATED PARTIES This Agreement will inure to the benefit of, and be binding
upon, WebSideStory and its subsidiaries and its affiliates, together with their
successors and assigns, and you, together with your executor, administrator,
personal representative, heirs, and legatees.
THIS AGREEMENT REFLECTS THE TERMS OF YOUR EMPLOYMENT WITH WEBSIDESTORY. THE
TERMS OF ANY PRIOR LETTERS, NEGOTIATIONS, OR UNDERSTANDINGS THAT CONTRADICT ANY
PROVISION OF THIS AGREEMENT ARE UNENFORCEABLE.
MERGER This Agreement merges and supersedes all prior and contemporaneous
agreements, undertakings, covenants, or conditions, whether oral or written,
express or implied, to the extent that they contradict or conflict with the
terms and conditions hereof. This Agreement is not intended to modify or impair
the effectiveness of the general rules and policies WebSideStory may announce
from time to time.
ARBITRATION The parties agree that they will submit any dispute that arises
under this Agreement to arbitration in San Diego County, California. The parties
hereby agree to use a third party neutral referred by American Arbitration
Association who will conduct the arbitration under the American Arbitration
Association rules for Arbitration. The cost of the arbitration will be shared
equally by both parties.
CHOICE OF LAW This Agreement will be governed by and enforced under the laws of
the State of California, in San Diego County.
IN WITNESS WHEREOF, you, as an employee of WebSideStory, have entered and
executed this Agreement under seal, and WebSideStory has accepted your
undertaking.
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I HAVE CAREFULLY READ AND CONSIDERED THE PROVISIONS OF THIS AGREEMENT. I
UNDERSTAND AND ACKNOWLEDGE THAT THE TERMS AND CONDITIONS ARE FAIR AND APPEAR
REASONABLY REQUIRED FOR THE PROTECTION OF WEBSIDESTORY AND ITS BUSINESS.
EMPLOYEE:
/s/ RANDALL BROBERG
- ----------------------------------
NAME: Randall Broberg
Date: April 25, 2000
-----------------------------
SOCIAL SECURITY NO: ___ - __ - ___
DRIVER'S LICENSE NO: ________________ STATE: ____
ADDRESS:
- -----------------------------------
- -----------------------------------
ACCEPTED:
WEBSIDESTORY INC.:
/s/ MICHAEL CHRISTIAN
- ----------------------------------------
Michael Christian, Senior Vice President
Date: April 25, 2000
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WEBSIDESTORY, INC., CONFIDENTIALITY AGREEMENT AND TERMS OF EMPLOYMENT
EXHIBIT A
A1. SALARY
Employee will be paid an annual salary of $170,000.00. Employee's
salary will be paid in equal installments at regular payroll periods
(every two weeks). Employee's salary will be reviewed periodically by
the president of WebSideStory and may be adjusted from time to time at
his sole discretion.
A2. DUTIES
Employee will serve as general counsel and chief privacy officer.
Employee's duties may be reasonably modified at WebSideStory's
discretion. Employee will be under the management of the president of
the company. Employee will diligently execute his or her duties and
will devote substantially all of his or her time, skill, and effort
during ordinary working hours to such duties.
A3. DEDUCTIONS
WebSideStory will deduct from any compensation payable to Employee the
sums that it is required by law to deduct, including but not limited to
federal and state withholding taxes, social security taxes and state
disability insurance.
A4. BENEFITS
Medical coverage is a benefit that WebSideStory provides for its
employees alone; spouses are excluded from coverage. At your own cost,
however, we do give you the option to include your spouse in the
medical and/or dental plan offered. Since WebSideStory is billed for
the spouse premium, we will in turn deduct the premium from your
paycheck. Employee will be entitled to medical coverage after a period
of 30 days.
A5. VACATION, ILLNESS, AND HOLIDAYS
Employee will be entitled each year to vacation time at full pay in
accordance with WebSideStory's vacation policy.
A6. START DATE
Employee's first day of employment is/was April 10, 2000.
A7. STOCK OPTIONS, SEVERANCE
On or promptly after Employee's first day of employment is, the Company
will grant to Employee options to purchase up to $400,000 shares of the
Company's common stock (the OPTIONS) pursuant to the Company's 2000
Equity Incentive Plan. This option grant is subject to the terms and
conditions of a stock option agreement and to applicable state and
federal laws including tax and securities laws. The Options will vest
only as long as Employee is continuously employed by the Company as
follows:
1 50,000 will vest on the six-month anniversary of the date of
grant;
2 the remaining Options will vest monthly at the rate of 8,333 for
each full month of Employee's continuous service from the
six-month anniversary of the date of grant until the fourth
anniversary of the date of grant;
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3 on the fourth anniversary of the date of grant, the remaining
8,349 unvested Options will vest;
4 if the continuous service of Employee is terminated without Cause
subsequent to a Change in Control, then the Company will pay
Employee a severance payment of $85,000.00, and fifty percent
(50%) of the total number of unvested shares shall immediately
vest. For this purpose, Change in Control means: (i) a
dissolution or liquidation of the Company; (ii) a sale of all or
a majority of the assets of the Company; (iii) a merger or
consolidation in which the Company is not the surviving
corporation and in which beneficial ownership of securities of
the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of
directors has changed; (iv) a reverse merger in which the Company
is the surviving corporation but the shares of Common Stock
outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of
securities, cash or otherwise, and in which beneficial ownership
of securities of the Company representing at least fifty percent
(50%) of the combined voting power entitled to vote in the
election of directors has changed; or (v) an acquisition by any
person, entity or group within the meaning of Section 13(d) or
14(d) of the Exchange Act, or any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored
or maintained by the Company or subsidiary of the Company or
other entity controlled by the Company) of the beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act, or comparable successor rule) of securities of the
Company representing at least fifty percent (50%) of the combined
voting power entitled to vote in the election of directors. For
this purpose only, Cause means the occurrence of any of the
following (and only the following): (i) your conviction of any
felony involving fraud or act of dishonesty against the Company
or its affiliates; (ii) conduct by you which, based upon good
faith and reasonable factual investigation and determination of
the Company (or, if you are an officer, of the board of directors
of the Company), demonstrates gross unfitness to serve; or (iii)
your intentional, material violation of any statutory or
fiduciary duty that you have to the Company or its Affiliates. In
addition, if you are not an officer, Cause also shall include
your poor performance of services for the Company or its
Affiliates as determined by the Company following (A) written
notice to you describing the nature of such deficiency and (b)
your failure to cure such deficiency within thirty (30) days
following receipt of the such written notice.
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EXHIBIT 10.30
WEBSIDESTORY, INC.
STOCK OPTION GRANT NOTICE
(2000 EQUITY INCENTIVE PLAN)
WebSideStory, Inc. (the "Company"), pursuant to its 2000 Equity Incentive Plan
(the "Plan"), hereby grants to Optionholder an option to purchase the number of
shares of the Company's Common Stock set forth below. This option is subject to
all of the terms and conditions as set forth herein and in the Plan (a copy of
which has been made available to all employees), and in the Notice of Exercise
and Stock Option Agreement, both of which are attached hereto and incorporated
herein in their entirety.
Optionholder: Randall Broberg
Date of Grant: April 10, 2000
Vesting Commencement Date: April 10, 2000
Number of Shares Subject to Option: 400,000
Exercise Price (Per Share): $0.34
Total Exercise Price: $136,000.00
Expiration Date: 04/09/2010
TYPE OF GRANT: [X] Incentive Stock Option(1) [ ] Nonstatutory Stock Option
EXERCISE SCHEDULE: [X] Same as Vesting Schedule [ ] Early Exercise Permitted
VESTING SCHEDULE: Vesting as provided in employment agreement with employee.
PAYMENT: By one or a combination of the following items (described in
the Stock Option Agreement):
By cash or check
Pursuant to a Regulation T Program if the Shares are
publicly traded
By delivery of already-owned shares if the Shares are
publicly traded
ADDITIONAL TERMS/ACKNOWLEDGEMENTS: The undersigned Optionholder acknowledges
receipt of, and understands and agrees to, this Grant Notice, the Stock Option
Agreement and the Plan. Optionholder further acknowledges that as of the Date of
Grant, this Grant Notice, the Stock Option Agreement and the Plan set forth the
entire understanding between Optionholder and the Company regarding the
acquisition of stock in the Company and supersede all prior oral and written
agreements on that subject with the exception of (i) options previously granted
and delivered to Optionholder under the Plan, and (ii) the following agreements
only:
OTHER AGREEMENTS:
----------------------------------------
----------------------------------------
WEBSIDESTORY, INC. OPTIONHOLDER:
By: /s/ JOHN HENTRICH /s/ RANDALL BROBERG
-------------------------------- -----------------------------------
Signature Signature
Title: Chief Executive Officer Date:
----------------------------- ------------------------------
Date:
------------------------------
ATTACHMENTS: Stock Option Agreement, 2000 Equity Incentive Plan and Notice of
Exercise
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(1) If this is an incentive stock option, it (plus your other outstanding
incentive stock options) cannot be first exercisable for more than $100,000 in
any calendar year. Any excess over $100,000 is a nonstatutory stock option.
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ATTACHMENT I
STOCK OPTION AGREEMENT
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ATTACHMENT II
2000 EQUITY INCENTIVE PLAN
See company Intranet.
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ATTACHMENT III
NOTICE OF EXERCISE
