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EXHIBIT 10.2
MASTER AGREEMENT
AT&T MA Reference No. 11761
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CUSTOMER Legal Name ("Customer") AT&T Corp. ("AT&T")
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Netpliance, Inc. AT&T Corp.
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CUSTOMER Address AT&T Address
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7600A Capital of Texas Highway 55 Corporate Drive
Austin Room 32B15
Texas 78731 Bridgewater, New Jersey 08807
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CUSTOMER Contact AT&T Contact
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Name: Valerie Walden AT&T Internet Services Contract Management
Fax Number 800-235-7527
Title: C.O.O.
Telephone: 512.681.8170
Fax: 512.493.8399
Email: [email protected]
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CUSTOMER Billing Address
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7600A Capital of Texas Highway
Austin
Texas 78731
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This Agreement consists of this Cover Page, the attached General Terms and
Conditions and all Service Attachments ("Attachments") attached hereto or
subsequently signed by the parties (collectively, this "Agreement").
Attachments shall include AT&T Service Order Attachments that reference this
Agreement and the relevant information in the AT&T Service Guide at
http://www.att.com/abs/serviceguide. In the event of conflict between the
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General Terms and Conditions and any Attachment, the Attachment shall take
precedence.
This Agreement shall become effective when signed by both parties and shall
continue in effect for as long as any Attachment remains in effect, unless
earlier terminated in accordance with the provisions of the Agreement. The term
of each Attachment is stated in the Attachment.
As of the effective date of this Agreement, the Attachments are as follows:
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SERVICE(S) ORDERED
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[_] AT&T Asynchronous Transfer Mode ("ATM") [_] AT&T Intrastate Services Agreement [_] Local Services
Services (Domestic & International) [_] AT&T Managed Network Solution ("MNS") [_] AT&T - Single State
[_] AT&T Contract Tariff Services [_] AT&T - Multi-State
[_] AT&T Enhanced Announcement Services [_] Managed Router [_] FRAD [_] TCG - Single State
[_] AT&T Frame Relay Plus Service [_] AT&T Teleconference Service Options [_] TCG - Multi-State
[_] AT&T International Services (Concert) [_] AT&T Tariffed Pricing Plan [_] TCG-Tariffed Pricing Plan
[X] AT&T Internet Services [_] AT&T Wireless Services
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CUSTOMER'S SIGNATURE BELOW ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS
EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE BOUND BY
THEM.
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CUSTOMER: Netpliance, Inc. AT&T CORP.
By: By:
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(Authorized Signature) (Authorized Signature)
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(Typed or Printed Name) (Typed or Printed Name)
Chief Operations Officer
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(Title) (Title)
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(Date) (Date)
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Portions of this agreement have been omitted pursuant to a confidential
treatment request. The omitted portions are indicated by [*****]. The omitted
information has been filed separately with the Securities and Exchange
Commission.
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CPNI Customer Notice and Consent
You can help us offer you products and services tailored to your needs with a one-stop shopping experience. If you consent
below, we could share your CPNI with groups within AT&T, its affiliates, and third parties to bring to your attention products
and services that might interest you. CPNI (Customer Proprietary Network Information) includes telecommunications services
information from your telephone bills or network services records related to the quantity, technical configuration, type,
destination and amount, whether long distance, local, and/or wireless. Under federal law, you have a right and AT&T a duty to
protect the confidentiality of CPNI. You may refuse to allow such use of your CPNI. This refusal will not affect the services
that AT&T provides to you.
Your signature below approves AT&T's use of your CPNI as described above. It is valid until revoked. You may revoke approval at
any time by providing written notice to AT&T at the address above. Your signature acknowledges that you are authorized to sign
this consent.
Customer Signature: ______________________________ Title: ______________________ Date: __________________
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For AT&T Internal Use Only
Global Strata
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Branch Code: Account Group Code:
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Global Strata
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Branch PID: Branch Manager: Customer ID (CID):
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GENERAL TERMS AND CONDITIONS
The following terms and conditions shall apply to the provision and use of the
products and services (individually a "Service" and collectively the "Services")
provided pursuant to the Attachments.
1.0 DEFINITIONS
1.1 "Affiliate" of a party means any entity that controls, is controlled
by or is under common control with such party and, in the case of AT&T, it also
means any entity which AT&T has authorized to offer any Service or part of any
Service.
1.2 "Content" means information made available, displayed or transmitted
in connection with a Service (including, without limitation, information made
available by means of an HTML "hot link", a third party posting or similar
means) including all trademarks, service marks and domain names contained
therein as well as the contents of any bulletin boards or chat forums, and, all
updates, upgrades, modifications and other versions of any of the foregoing.
1.3 "User" means anyone who uses or accesses any Service purchased by
CUSTOMER under this Agreement.
2.0 CHARGES AND BILLING
2.1 CUSTOMER shall pay AT&T for its and Users' use of the Services at the
rates and charges specified in the Attachments, without deduction, setoff or
delay for any reason, including circumstances arising under any other
Attachment. Charges set forth in the Attachments are exclusive of any applicable
taxes. CUSTOMER may be required at any time to pay a deposit if AT&T determines
that CUSTOMER is not creditworthy or as specified in Section 10.1.
2.2 CUSTOMER shall pay all shipping charges, taxes (excluding those on
AT&T's net income) and other similar charges (and any related interest and
penalties) relating to the sale, transfer of ownership, installation, license,
use or provision of the Services, except to the extent a valid tax exemption
certificate is provided by CUSTOMER to AT&T prior to the delivery of Services.
2.3 Payment is due within thirty (30) days after the date of invoice and
shall refer to the invoice number. Restrictive endorsements or other statements
on checks accepted by AT&T will not apply. CUSTOMER shall reimburse AT&T for all
costs (including reasonable attorney fees) associated with collecting delinquent
or dishonored payments. At AT&T's option, interest charges may be added to any
past due amounts at the lower of 1.5% per month or the maximum rate allowed by
law.
3.0 RESPONSIBILITIES OF THE PARTIES
3.1 AT&T shall provide Services to CUSTOMER in accordance with the terms
and conditions, and at the charges specified in this Agreement consistent with
all applicable laws and regulations.
3.2 CUSTOMER shall assure that its and Users' use of the Services and the
Content will at all times comply with all applicable laws, regulations and
written and electronic Instructions for use. AT&T reserves the right to
terminate affected Attachments, suspend affected Services and/or remove CUSTOMER
or Users' Content from the Services if AT&T determines that such use or Content
does not conform with the requirements set forth in this Agreement or receives
notice from anyone that CUSTOMER's or Users' use or Content may violate any laws
or regulations. AT&T's actions or inaction under this Section shall not
constitute review or approval of CUSTOMER's or Users' use or Content. AT&T will
use reasonable efforts to provide notice to CUSTOMER of any violation or
threatened violation of this Section 3.2 when reasonably practicable under the
circumstances.
4.0 USE OF INFORMATION
4.1 All documentation, technical information, Software, business
information, or other materials that are disclosed by either party to the other
in the course of performing this Agreement shall be considered proprietary
information ("INFORMATION") of the disclosing party, provided such information
is in written or other tangible form that is clearly marked as "proprietary" or
"confidential", or is disclosed orally and is both identified as proprietary or
confidential at the time of disclosure and summarized in a writing so marked
within fifteen (15) business days following the oral disclosure. This Agreement
shall be deemed to be AT&T and CUSTOMER INFORMATION. CUSTOMER Content shall be
deemed to be CUSTOMER INFORMATION.
4.2 Each party's INFORMATION shall, for a period of three (3) years
following its disclosure (except in the case of Software, for an indefinite
period): (i) be held in confidence; (ii) be used only for purposes of performing
this Agreement (including in the case of AT&T, the ability to monitor and record
CUSTOMER transmissions in order to detect fraud, check quality, and to operate,
maintain and repair the Services) and using the Services; and (iii) not be
disclosed except to the receiving party's employees, agents and contractors
having a need-to-know (provided that such agents and contractors are not direct
competitors of either party and agree in writing to use and disclosure
restrictions as restrictive as this Article 4), or to the extent required by law
(provided that prompt advance notice is provided to the disclosing party to the
extent practicable).
4.3 The restrictions in Section 4.2 shall not apply to any information
that: (i) is independently developed by the receiving party; or (ii) is lawfully
received by the receiving party free of any obligation to keep it confidential;
or (iii) becomes generally available to the public other than by breach of this
Agreement.
5.0 PUBLICITY AND MARKS
5.1 No public statements or announcements relating to this Agreement shall
be issued by either party without the prior written consent of the other party.
5.2 Each party agrees not to display or use, in advertising or otherwise, any
of the other party's trade names, logos, trademarks, service marks or other
indicia of origin (collectively "Marks") without the other party's prior written
consent, provided that such consent may be revoked at any time.
6.0 SOFTWARE
6.1 AT&T grants CUSTOMER a personal, non-transferable and non-exclusive
license (without the right to sublicense) to use, in object code form, all
software and associated written and electronic documentation and data furnished
pursuant to the Attachments (collectively, the "Software"), solely in connection
with the Services and solely in accordance with applicable written and
electronic documentation. CUSTOMER will refrain from taking any steps to reverse
assemble, reverse compile or otherwise derive a source code version of the
Software. The Software shall at all times remain the sole and exclusive property
of AT&T or its suppliers. "Third-Party Software" means Software that bears a
copyright notice of a third party. "AT&T Software" means all Software other than
Third-Party Software.
6.2 CUSTOMER shall not copy or download the Software, except to the extent
expressly provided otherwise in the applicable documentation for the Service or
in a writing signed by AT&T. Any copy must contain the same copyright notices
and proprietary markings as the original Software.
6.3 CUSTOMER shall assure that its Users comply with the terms and
conditions of this Article 6.
6.4 The term of the license granted hereunder shall be coterminous with
the Attachment which covers the Software.
6.5 CUSTOMER agrees to comply with any additional restrictions that are
provided with any Third-Party Software.
6.6 AT&T warrants that all AT&T Software will perform substantially in
accordance with its applicable published specifications during a warranty period
of ninety (90) days beginning on the date of delivery of the AT&T Software to
CUSTOMER. If CUSTOMER returns to AT&T, within the ninety (90) day warranty
period, any AT&T Software that does not comply with this warranty, then AT&T, at
its option, will either repair or replace the portion of the AT&T Software that
does not comply or refund the amount paid by CUSTOMER for such failed or
defective AT&T Software. This warranty will apply only if the AT&T Software is
used in accordance with the terms of this Agreement and is not altered, modified
or tampered with by CUSTOMER or Users.
7.0 DISPUTE RESOLUTION
Disputes under this Agreement shall be submitted to binding arbitration, subject
to the exceptions and in accordance with the procedures set forth in the AT&T
Service Guide.
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8.0 FORCE MAJEURE
Neither AT&T nor CUSTOMER shall be liable for any delay, failure in performance,
loss or damage due to: fire, explosion, power blackout, earthquake, flood, the
elements, strike, embargo, labor disputes, acts of civil or military authority,
war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory
or governmental agencies, or other causes beyond such party's reasonable
control, whether or not similar to the foregoing, except that CUSTOMER's
obligation to pay for charges incurred for Services received by CUSTOMER shall
not be excused.
9.0 LIMITATIONS OF LIABILITY
9.1 For purposes of Articles 8, 9 and 11 and all other exclusive remedies
and limitations of liability set forth in this Agreement or any Attachment
"AT&T" shall be defined as AT&T, its Affiliates, and its and their employees,
directors, officers, agents, representatives, subcontractors, interconnection
service providers and suppliers; and "CUSTOMER" shall be defined as CUSTOMER,
its Affiliates, and its and their employees, directors, officers, agents, and
representatives; and "Damages" will refer collectively to all injury, damage,
liability, loss, penalty, interest and expense incurred.
9.2 EITHER PARTY'S ENTIRE LIABILITY AND THE OTHER PARTY'S EXCLUSIVE
REMEDIES, FOR ANY DAMAGES CAUSED BY ANY SERVICE DEFECT OR FAILURE, OR FOR OTHER
CLAIMS ARISING IN CONNECTION WITH ANY SERVICE OR PERFORMANCE OR NON-PERFORMANCE
OF OBLIGATIONS UNDER THIS AGREEMENT SHALL BE:
(i) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY
DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGES ARISING FROM THE WILLFUL
MISCONDUCT OF A PARTY OR A BREACH OF THE PROVISIONS OF ARTICLES 4 OR 5, THE
OTHER, PARTY'S RIGHT TO PROVEN DIRECT DAMAGES;
(ii) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES SET FORTH IN SECTION
6.6;
(iii) FOR INDEMNITY, THE REMEDIES SET FORTH IN ARTICLE 11;
(iv) FOR DAMAGES OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED UNDER
THIS AGREEMENT OR ANY ATTACHMENT, EACH PARTY'S LIABILITY SHALL BE LIMITED TO
PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY
TWELVE (12) -MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS PAYABLE BY
CUSTOMER FOR THE APPLICABLE SERVICE UNDER THE APPLICABLE ATTACHMENT DURING THE
TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED. THIS
SECTION 9.2(iv) SHALL NOT LIMIT CUSTOMER'S RESPONSIBILITY FOR THE PAYMENT OF ANY
AND ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT.
9.3 EXCEPT FOR THE PARTIES' ARTICLE 11 INDEMNIFICATION OBLIGATIONS,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND
OR INCREASED COST OF OPERATIONS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
9.4 AT&T ALSO SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR
RELATING TO: INTEROPERABILITY, INTERACTION, ACCESS OR INTERCONNECTION PROBLEMS
WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER
OR THIRD PARTIES; SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR
TRANSMISSIONS, EXCEPT AS OTHERWISE PROVIDED IN AN ATTACHMENT OR TARIFF; OR,
UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER'S,
USERS' OR THIRD PARTIES' APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION,
NETWORK OR SYSTEMS.
9.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AT&T MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR
ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF
PERFORMANCE. AT&T DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE
SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. EQUIPMENT PROVIDED
BY AT&T IN CONJUNCTION WITH A SERVICE IS PROVIDED ON AN "AS IS" BASIS. AT&T DOES
NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER
SHOULD NOT RELY ON ANYONE MAKING SUCH STATEMENTS.
9.6 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE 9 AND IN ANY
ATTACHMENT SHALL APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES
WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY
EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
9.7 This Agreement does not. expressly or implicitly provide any third
party (including Users) with any remedy, claim, liability, reimbursement cause
of action or other right or privilege.
10.0 TERMINATION
10.1 If a party fails to perform or observe any material term or condition
of this Agreement and the failure continues unremedied for thirty (30) days
after receipt of written notice, (i) the other party may terminate for cause any
Attachment affected by the breach, or (ii) where the failure is a non-payment by
CUSTOMER of any charge when due, AT&T may, at its option, terminate affected
Attachments, suspend Service under affected Attachments, require a deposit under
any or all Attachments as a condition of continuing to provide Services and/or
terminate this entire Agreement.
10.2 An Attachment may be terminated immediately upon written notice by:
(i) either party if the other party has violated the other party's Marks,
becomes insolvent or involved in a liquidation or termination of its business,
files a bankruptcy petition, has an involuntary bankruptcy petition filed
against it (if not dismissed within thirty (30) days of filing), becomes
adjudicated bankrupt or becomes involved in an assignment for the benefit of its
creditors; or (ii) either party due to a material breach of any provision of
Article 4, or AT&T pursuant to Section 3.2 or due to a material breach by
CUSTOMER of any provision of Article 6.
10.3 CUSTOMER shall be responsible for payment of all charges under a
terminated Attachment incurred as of the effective date of termination.
CUSTOMER shall also be liable to AT&T for Termination Charges, if specified in a
terminated Attachment, in the event that AT&T terminates under Section 10.1 or
10.2, or CUSTOMER terminates without cause.
10.4 Termination by either party of an Attachment does not waive any other
rights or remedies it may have under this Agreement
10.5 Except as provided under Section 10.1, termination or suspension of an
Attachment shall not affect the Services provided or the rights and obligations
of the parties under any other Attachment
11.0 INDEMNITY
11.1 AT&T agrees to defend or settle, at its own expense, any third party
claim or suit against CUSTOMER alleging that a Service furnished under this
Agreement infringes any United States patent, trademark, copyright or trade
secret except where the claim or suit arises out of or results from: CUSTOMER's
or User's Content in connection with the Service; modifications to the Service
made by or combinations of the Service with services or products provided by
CUSTOMER or others; AT&T's adherence to CUSTOMER's written requirements; or, use
of the Service in violation of this Agreement. CUSTOMER agrees to defend or
settle, at its own expense and without prejudice to AT&T or AT&T's continued
provisioning of the Service to CUSTOMER or others, all claims or suits against
AT&T covered by the exceptions in the preceding sentence and shall immediately
cease any activity which gives rise to the alleged infringement. The
indemnifying party will also pay all Damages and costs (including reasonable
attorneys' fees) that by final judgment may be assessed against the indemnified
party due to infringement by the indemnifying party.
11.2 In the event of a claim of infringement for which AT&T is the
indemnifying party under Section 11.1, AT&T may at its option either procure the
right to continue using, or replace or modify, the alleged infringing Service so
that the Service becomes noninfringing and substantially compliant with the
requirements in the applicable Attachment. Upon inability to reasonably perform
either of the foregoing options, AT&T may terminate the affected Attachment,
without liability other than as stated in Section 11.1.
11.3 AT&T grants to CUSTOMER the right to permit Users to access and use
the Services, provided that CUSTOMER shall remain solely responsible for the
access and use by any User of the Services, and shall defend, indemnify and hold
harmless AT&T from and against all Damages, arising out of third party claims
and regardless of the form of action, whether in contract, tort, strict
liability or otherwise, concerning or relating to: any noncompliance by CUSTOMER
or Users with any provision of this Agreement; negligent acts or omissions by
CUSTOMER or Users; CUSTOMER's or Users' Content; or any Service failure, defect
or outage. CUSTOMER's indemnification obligations do not apply to claims for
Damages to real or tangible property or bodily injury or death negligently
caused by AT&T.
11.4 With respect to the indemnification obligations in this Article 11:
(i) the indemnified party will notify the indemnifying party in writing promptly
upon learning of any claim or suit for which indemnification may be sought,
provided that failure to do so shall not affect the indemnity except to the
extent the indemnifying party is prejudiced thereby; (ii) the indemnifying party
shall have control of the defense or settlement, provided that the indemnified
party shall have the right to participate in such defense or settlement with
counsel of its own selection and at its sole expense; and (iii) the indemnified
party shall reasonably cooperate with the defense, at the indemnifying party's
expense.
12.0 BUSINESS DOWNTURN I NETWORK OPTIMIZATION
In the event of a business downturn beyond the control of CUSTOMER, a corporate
divestiture, merger, acquisition or significant restructuring or reorganization
or network optimization, any of which significantly reduces the volume of
Services required by CUSTOMER, with the result that CUSTOMER will be unable to
meet its revenue and/or volume commitments under an Attachment, AT&T and
CUSTOMER will cooperate in efforts to develop a mutually agreeable alternative.
If the parties reach mutual agreement on an alternative, AT&T will prepare and
file any necessary tariff revisions and/or the parties will sign a contractual
amendment as applicable. This provision shall not apply to a change resulting
from a decision by CUSTOMER to transfer portions of its traffic or projected
growth to service providers other than AT&T. CUSTOMER must give AT&T written
notice of the conditions it believes will require the application of this
provision. This provision does not constitute a waiver of any charges,
including shortfall charges, incurred by CUSTOMER prior to the time the parties
mutually agree to amend or replace the affected Attachment.
13.0 YEAR 2000 COMPATIBILITY
If, as a result of the date change from the year 1999 to the year 2000, the
Services provided under an Attachment fail to perform in accordance with AT&T's
published specifications for such Services, in a way that is material and
adverse to CUSTOMER, AT&T will take reasonable steps to correct such failure, at
no additional cost to CUSTOMER, as CUSTOMER's exclusive remedy. AT&T is not
responsible for any
<PAGE>
failures caused by. (i) a connecting carrier; (ii) use of the Services with any
products, data or services that are not themselves Year 2000 Compliant; (iii)
the CUSTOMER or Users; or (iv) the failure of power, equipment, services or
systems not provided by AT&T.
14.0 GENERAL PROVISIONS
14.1 Any supplement, modification or waiver of any provision of this
Agreement must be in writing and signed by authorized representatives of both
parties. A waiver by either party of any breach of this Agreement shall not
operate as a waiver of any other breach of this Agreement
14.2 This Agreement may not be assigned by either party without the prior
written consent of the other, except that either party may, without the other
party's consent, assign this Agreement or any Attachment to a present or future
Affiliate or successor, provided that any such assignment by CUSTOMER shall be
contingent upon AT&T determining the assignee to be creditworthy and in
compliance with any eligibility criteria for the Services. AT&T may subcontract
work to be performed under this Agreement, but shall retain responsibility for
all such work.
14.3 If any portion of this Agreement is found to be invalid or
unenforceable, the remaining provisions shall remain in effect and the parties
shall promptly begin negotiations to replace invalid or unenforceable portions
that are essential parts of this Agreement,
14.4 Any initial demand for arbitration pursuant to Article 7 and any legal
action arising in connection with this Agreement must begin within two (2) years
after the cause of action arises.
14.5 All notices under this Agreement shall be in writing and either mailed
by certified or registered mail, postage prepaid return receipt requested, sent
by express courier or hand delivered and addressed to each party at the address
set forth on the Cover Page of this Agreement or, if the notice relates to a
specific Attachment, the address set forth in such Attachment, or, in any case,
such other address as a party designates in writing.
14.6 State law issues concerning construction, interpretation and
performance of this Agreement shall be governed by the substantive law of the
State of New York excluding its choice of law rules. The United Nations
Convention on Contracts for International Sale of Goods shall not apply.
14.7 The respective obligations of CUSTOMER and AT&T, which by their nature
would continue beyond the termination or expiration of any Attachment or this
Agreement including, without limitation, the obligations regarding
confidentiality, publicity and marks, limitations of liability and dispute
resolution, shall survive termination or expiration.
14.8 This Agreement creates an independent contractor relationship between
the parties and neither party's employees or contractors shall be considered
employees, contractors, partners or agents of the other party.
14.9 THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE SERVICES TO BE PROVIDED HEREUNDER. THIS AGREEMENT SUPERSEDES
ALL PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, CONCERNING SUCH SERVICES OR THE RIGHTS AND OBLIGATIONS
RELATING TO THOSE SERVICES. THIS AGREEMENT SHALL NOT BE CONTRADICTED, EXPLAINED
OR SUPPLEMENTED BY ANY WRITTEN OR ORAL STATEMENTS, PROPOSALS, REPRESENTATIONS,
ADVERTISEMENTS, SERVICE DESCRIPTIONS OR CUSTOMER PURCHASE ORDER FORMS NOT
EXPRESSLY SET FORTH IN THIS AGREEMENT OR AN ATTACHMENT.
<PAGE>
AT & T MA Reference No. 11761
ADDENDUM TO
MASTER AGREEMENT
This is the Addendum to Master Agreement 11761 by and between Netpliance
("CUSTOMER"), a Delaware corporation having a place of business at 7600A Capital
of Texas Highway, Austin TX 78731 and AT&T Corp., a New York corporation
("AT&T"), with offices at 55 Corporate Drive, Bridgewater, NJ 08807, on behalf
of itself and its affiliates.
CUSTOMER and AT&T hereby agree to the following modifications to the General
Terms and Conditions of the Master Agreement:
1. Article 2.0 - CHARGES AND BILLING
---------------------------------
Section 2.1 is modified by adding the following, "except for amounts not yet due
because they are disputed in good faith" after the word, "reason"
Section 2.1 is further modified by adding "AT&T acknowledges that CUSTOMER is
creditworthy on the effective date of this Agreement." after the last sentence.
Section 2.3 is deleted in its entirety and is replaced with the following,
"Payment is due within thirty (30) days after the date of invoice, except for
amounts disputed in good faith, and shall refer to the invoice number.
Restrictive endorsements or other statements on checks accepted by AT&T will not
apply. CUSTOMER shall reimburse AT&T for all reasonable costs associated with
collecting delinquent or dishonored payments. At AT&T's option, interest
charges may be added to any undisputed past due amounts at the lower of 1.5% per
month or the maximum rate allowed by law. Charges shall be considered past due,
if not paid in full within thirty (30) days after the date of receipt of an
invoice, except that, in the event of a bona fide dispute over a charge
specifically identified by CUSTOMER through written notice to AT&T, payment of
the identified charge will not be considered past due and no interest will be
charged for non-payment of such disputed charges pending investigation by AT&T.
Upon completion of AT&T's investigation, AT&T will advise and consult with
CUSTOMER concerning the results of the investigation and will make such
adjustments as the parties, acting reasonably and in good faith, agree are
reasonably appropriate under the circumstances. Payment of any disputed charges
that are determined by AT&T to be correct as a result of such investigation and
consultation shall be considered past due if not paid in full within thirty (30)
days after completion of the foregoing process."
2. Article 3.0 - RESPONSIBILITIES OF THE PARTIES
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Section 3.2 is deleted in its entirety and is replaced with the following words,
"CUSTOMER shall use commercially reasonable efforts to assure that its and
Users' use of the Services and the Content will at all times comply with all
applicable laws, regulations and written and electronic instructions for use.
AT&T reserves the right to terminate affected Attachments, suspend affected
Services and/or remove CUSTOMER or Users' Content from the Services if AT&T
reasonably determines that such use or Content does not conform with the
requirements set forth in this Agreement or receives notice from anyone that
CUSTOMER's or Users' use or Content may violate any laws or regulations. AT&T's
actions or inaction under this Section shall not constitute review or approval
of CUSTOMER's or Users' use or Content. AT&T will use reasonable efforts to
provide written notice to CUSTOMER of any violation or threatened violation of
this Section 3.2 when reasonably practicable under the circumstances."
3. Article 4.0 - USE OF INFORMATION
--------------------------------
AT&T PROPRIETARY
<PAGE>
Section 4.1 is modified by adding "written" after "advance" in the last
sentence.
4. Article 6.0 - SOFTWARE
----------------------
Section 6.3 is deleted in its entirety and is replaced with the following,
"CUSTOMER shall use reasonable business efforts to ensure that its Users comply
with the terms and conditions of this Article 6.
5. Article 7.0 - DISPUTE RESOLUTION
--------------------------------
Article 7.0 is deleted in its entirety and is replaced with "THIS SECTION IS
INTENTIONALLY LEFT BLANK."
6. Article 10.0 - TERMINATION
--------------------------
Section 10.1(ii) is modified by adding "except those charges not yet due because
they are disputed in accordance with Section 2.3 above" after the word "due".
Section 10.3 is modified by adding "except those charges not yet due because
they are disputed in accordance with Section 2.3 above" after "charges" in the
first sentence.
7. Article 12.0 - BUSINESS DOWNTURN / NETWORK OPTIMIZATION
-------------------------------------------------------
Article 12.0 is modified by deleting "significant" in the 2/nd/ line, first
sentence.
8. Article 14.2 - GENERAL PROVISIONS
---------------------------------
Section 14.2 is modified by adding "reasonably" before "determining" in the
first sentence.
Except as modified herein, the terms of the Master Agreement remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, AT&T and CUSTOMER have caused this Addendum to be executed
by their duly authorized representatives.
CUSTOMER: Netpliance AT&T CORP.
By: By:
------------------------------ -----------------------------
(Authorized Signature) (Authorized Signature)
--------------------------------- --------------------------------
(Typed or Printed Name) (Typed or Printed Name)
--------------------------------- --------------------------------
(Title) (Title)
--------------------------------- --------------------------------
(Date) (Date)
AT&T PROPRIETARY
2
<PAGE>
AT&T Internet Services
Cover Page
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
CUSTOMER Legal Name AT&T Corp. ("AT&T") AT&T Sales Representative Name
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Netpliance, Inc. AT&T Corp. Stephen Laphen
55 Corporate Drive
Room 32B15 Email: [email protected]
Bridgewater, New Jersey 08807 Telephone: 512.407.1774
-------------------------------------------------------------------------------------------------------------------------
CUSTOMER Information AT&T Authorized Agent Info. (if applicable) AT&T Sales Rep. Address
-------------------------------------------------------------------------------------------------------------------------
Address: Name: Scott Foster 1016 La Posada, Suite 120
7600A Capital of Texas Highway Company Name: Computer - Solution
Austin, Texas 78752
Austin, Texas 78731 8 Lost Meadow
Austin, Texas 78731
Telephone: 512.681.8170 Branch Manager: Gayann Reynolds
Telephone: 512.261.1149 Sales Strata: Growth
Email: [email protected] Sales Region: Southern
Agent Code: 5621
-------------------------------------------------------------------------------------------------------------------------
</TABLE>
This Attachment to the AT&T Master Agreement dated July 28th, 2000 between
Customer and AT&T Corp. ("Agreement") covers the below identified AT&T Internet
Services ("Services") and is an integral part of the Agreement. This Attachment
is effective when signed by Customer and accepted in writing by AT&T ("Effective
Date").
As of the Effective Date, the Services are as follows:
<TABLE>
<S> <C> <C>
[_] AT&T Business Internet Service [X] AT&T Private Label Dial ISP [_] AT&T Private Label Virtual ISP
</TABLE>
*These Services are ancillary to, and MUST be accompanied by, an AT&T Web
Site Services Attachment.
Page 4 of 4
AT&T PROPRIETARY
<PAGE>
AT&T PRIVATE LABEL DIAL ISP SERVICES
Service Description
1. SERVICE OVERVIEW
The "Service" is AT&T Private Label Dial ISP Services, a value-added service
providing dial-up access to AT&T's Internet Protocol ("IP") network and other
value added features and options. The Service consists of the following:
. Dial access for Customer and its Users to AT&T's managed IP network at
various points of presence ("POPS")
. A RADIUS interface to enable Customer to authenticate its Users
. Routing of Customer's and its Users' IP traffic to and from the Internet and
other IP networks accessible from AT&T's IP network, including value-added IP
services that Customer elects to provide
. Support for a single domain name
. Usage information and call detail records
. Service reports
. Network care
. Implementation support
The Service includes physical and encryption-based security for the AT&T systems
that use and store critical billing and management information for the Service,
but does not offer any software or security facilities, firewalls, or filters
between Users and the Internet.
2. SERVICE FEATURES
2.1 Accessibility
The Service is accessible to Users only in the following countries
("Territory"):
. United States (50 states and the District of Columbia and Puerto Rico.
The Service is generally available for access 24 hours per day, 7 days per week,
except for scheduled maintenance. Scheduled maintenance is currently performed
on Sunday mornings from 03:15 am to 04:45 am, Eastern Time; AT&T may change the
time at which scheduled maintenance is performed on notice to Customer. AT&T
reserves the right to interrupt access to the Service as needed to perform
emergency maintenance.
2.2 Points of Presence
The Service provides analog (V.34/V.90) and digital (ISDN) dial-up access at a
number of POPs in the Territory. Not all connectivity options are available at
all POPs. The telephone numbers and connectivity options of the POPs are
available at ftp://ftp.prserv.net/pub/dialtone/phonewsr.1st, or at such other
----------------------------------------------
address as AT&T may specify by notice. AT&T will from time to time and in its
sole discretion determine the locations, telephone numbers, connectivity
options, and capacities of the POPs.
In the United States, the Service also provides 8xx telephone numbers for
V.34/V.90 and ISDN access.
2.3 Call Detail Records
Each month, AT&T will provide Customer with call detail records ("CDRs") of its
Users' use of the Service during the previous month. CDRs may be provided
electronically, via e-mail or otherwise.
2.4 Network Usage Reports
Each month, AT&T will provide Customer with Service network usage reports.
Network Usage reports may be provided electronically, via e-mail or otherwise.
2.5. Network Operations and Service
a. Network Support
The Network Operations Center ("NOC") for the Service will perform proactive
operations support and troubleshooting of network and service infrastructure and
provide pro-active monitoring of service levels and problem diagnosis and
resolution.
Before the Implementation Completion Date, AT&T will provide Customer with a
standard NOC interface agreement which specifies, among other things, procedures
for communicating with the NOC, problem severity levels, and escalation
procedures.
Customer may contact the NOC for support by 8xx number, AT&T WEB Site and email.
The NOC will only support and accept calls from Customer and will not accept
calls, provide trouble assistance, or interface in any manner with parties other
than Customer, regardless of whether such parties have purchased services from
Customer. All communications with Customer will be in the English language.
b. Network Status Information
AT&T provides network status information at www.attbusiness.net/netstatus, or at
-----------------------------
such other address as AT&T may specify by notice.
3. IMPLEMENTATION
During implementation of the Service, AT&T will provide Customer with
documentation and configuration assistance to establish proper communication
between Customer's RADIUS server and AT&T's RADIUS Interface Gateway.
During implementation, AT&T and Customer will cooperate to:
. Develop a test and turn-up project plan
. Carry out the agreed project plan
4. CUSTOMER REQUIREMENTS
During the Service Period, Customer must provide the following in connection
with the Service:
. Dedicated access (TI minimum, using AT&T facilities) from Customer's RADIUS
server to the AT&T IP network to support RADIUS authentication, and to support
Customer's IP value-added services offered to Users
. Deploying and managing a RADIUS saver that complies with RFC 2138. and 2139
standards, and related systems (including the User authentication database)
. Ordering, registration, provisioning (including all client software),
billing, and support for its Users
. The domain name to be used for User login IDs
. All IP value-added services Customer chooses to offer to its Users (eg, mail,
personal web page hosting, chat, net news)
. All security for its services and systems used or accessible in connection
with the Service
. Blocking concurrent access by Users with the same case-sensitive User ID
required for per-user pricing, optional for usage-based pricing, see section
4.E of this Attachment.
. Testing of all Customer-provided and third party software and services for
compatibility with the Service (including new or modified versions throughout
service period)
. Single point of contact for network support
. Name, brand, and marks to identify the Service (Customer may not use AT&T's
name or marks in connection with the Service)
. Accurate and timely forecasts of anticipated use
. All SMTP gateway addresses used with the Service
. E-mail address to receive billing reports
. Executed standard AT&T NOC Interface Agreement
. An updated list of access numbers for its Users
. Correct and complete Postal Mailing Address for invoices, including person or
department if applicable
Page 1 of 1
AT&T PROPRIETARY
<PAGE>
AT&T Private Label Dial ISP Services
Service Attachment
Netpliance/Customer Pricing (AMS) Custom Terms (DB-07-13) DISP CONTRACT#______
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------------
Customer Name: Master Agreement Ref No: Type of Service: Initial Service Period:
<S> <C> <C> <C>
Netpliance ______________________ AT&T Private Label Three Years
7600 A Capital of Texas Highway Dial ISP Services
Austin, Texas 78731
512.681.8170
-------------------------------------------------------------------------------------------------------------------------------
</TABLE>
This Attachment consists of the following Sections 1-6, Appendix A, Appendix B,
and the Service Description (as defined in Section 1) (collectively, this
"Attachment"). This Attachment, together with the AT&T Master Agreement to which
it is attached ("Agreement"), sets forth the terms on which AT&T will provide
AT&T Private Label Dial ISP Services to Customer during the term of this
Attachment ("Service"). Capitalized terms not defined in this Attachment are
defined in the Agreement.
1. SERVICE
A current description of the Service is contained in the AT&T Private Label Dial
ISP Services Service Description ("Service Description"), a copy of which
Customer acknowledges having received. AT&T may, from time to time on 30 days'
written notice, change the Service as described in the Service Description and
provided to Customer under this Attachment.
2. EFFECTIVE DATE AND SERVICE PERIOD
A. This Attachment is effective when the AT&T Internet Services Cover Page
specifically referencing this Attachment is signed by Customer and accepted in
writing by AT&T ("Effective Date"). This Attachment will continue in effect
until Service to Customer has been terminated under this Section 2.
B. AT&T will provide written confirmation to Customer when the Service has been
implemented in all material respects, in accordance with the Implementation
Checklist attached hereto as Appendix B, and is operational for Customer
("Implementation Completion Date). Within five days after receiving AT&T's
written confirmation, Customer will notify AT&T in writing of the date on which
the Service will be made available to Users ("First Service Date"), which date
shall be not more than 15 days after the date of AT&T's written confirmation.
Customer may use or access the Service prior to the First Service Date pursuant
to the pricing, and the terms and conditions set forth in this Agreement,
however such usage, if any, shall not be included to retire commitments that
apply during the Initial Service Period or any Renewal Service Period. The
"Initial Service Period" begins on the First Service Date and continues for the
period specified in the box at the top of this page, unless extended under
Appendix A or by mutual agreement. In all circumstances the Initial Service
Period will be extended, if necessary, to the last day of the month in which the
Initial Service Period would otherwise end.
C. After the Initial Service Period, this Attachment will continue in effect
for additional consecutive one (1) year Renewal Service Periods only if Customer
gives written notice of renewal to AT&T at least 60 days prior to the expiration
of the Initial Service Period or the then current Renewal Service Period.
Otherwise, this Attachment shall continue in effect on a month to month basis,
until terminated by either party giving the other 60 days prior written notice
of termination.
D. Customer may at any time during the initial Service Period or any Renewal
Service Period terminate Service on 60 days' written notice to AT&T and payment
of the Early Termination Fee specified in Appendix A.
E. If the First Service Date does not occur within three months after the
Effective Date for any reason other than AT&T's fault or a force majeure, AT&T
may terminate this Attachment on 30 days' written notice to Customer and may
immediately invoice Customer for the Early Termination Fee.
3. PRICING AND INVOICING
A. The pricing for the Service is specified in Appendix A.
B. Payment of the Dial ISP implementation charge ("Implementation Charge") is
due on or before the Effective Date of this Attachment. Each month, AT&T will
invoice Customer for recurring fees and charges incurred during the preceding
month. If the first month of Service is not a full month, any fixed recurring
charges for that month will be prorated based on actual days in the month.
C. If Customer terminates Service under Section 2.D, or if AT&T terminates this
Attachment under Sections 2.E, 4.B or for Customer's breach, AT&T may
immediately invoice Customer for the Early Termination Fee.
4. RESPONSIBILITIES OF THE PARTIES
A. AT&T will make its best commercially reasonable efforts to make the Service
available to Customer as described in the Service Description.
B. Within five days after the Effective Date, Customer will provide AT&T with a
forecast of its anticipated hours of use of the Service, by access city, for
each of the first six months that the Service is anticipated to be available.
Not later than the 15th day of each month after the First Service Date for the
duration of this Agreement, Customer will provide AT&T with a forecast of its
anticipated hours of use of the Service, by access city, for each of the
following six months. Customer will make its best commercially reasonable
efforts to provide accurate forecasts, basing each forecast on the best
information then available to Customer (including information pertaining to
planned promotional activities) and reasonable assumptions. AT&T will provide an
electronic template that Customer must use to submit its forecasts; AT&T may
from time to time change that template if capacity is an issue. AT&T may take up
to 90 days to build network resources in any of the forecast cities before
Customer may begin boarding new subscribers for that given city. Customer is
encouraged to use actual usage data to revise forecasts for accuracy. If
Customer fails to provide a forecast in accordance with this paragraph AT&T
shall first give Customer prior written notice and a 10 day period to cure any
such forecasting deficiencies. Thereafter, if Customer fails to provide a
forecast in accordance with this paragraph, AT&T may then suspend the Service as
a first measure or terminate this Attachment as a second measure and may
immediately invoice Customer for the Early Termination Fee.
C. Customer is responsible for marketing to and selecting the Users that
Customer permits to subscribe to the Service.
D. Customer acknowledges that its and its Users' ability to access the Service
is dependent on Customer's RADIUS server and related systems. Users who for any
reason are not authenticated by Customer's RADIUS server will be denied access
to the Service. Customer is solely responsible for providing backup systems and
communications links to the. extent it deems prudent.
E. Each concurrent User session must be under a unique User ID. User ID's are
case sensitive. A User ID with the same characters, one or more of which is in a
different case, will be considered individual and unique User lD's. Customer
agrees that it is responsible, either directly or through its Intermediate
Resellers, for prohibiting multiple concurrent sessions under the same User ID.
Breach of this Section 4.E is a material breach of this Attachment.
F. Customer shall bear all sales, use, and excise taxes, duties, levies, and
other similar charges (including any related interest and penalties but
excluding taxes based upon AT&T's net income or net worth) however designated,
imposed as a result of the existence or operation of this Agreement. If Customer
is exempt from any tax, duty, levy or similar charge, Customer shall provide
AT&T with all required documentation necessary to establish Customer's exempt
status.
G. AT&T will not directly provide support to nor interact with any User.
Customer is responsible for (i) selecting the Users that Customer permits to
access the Service; (ii) ordering, registration, provisioning (including all
Page 1 of 5
AT&T PROPRIETARY
<PAGE>
AT&T Private Label Dial ISP Services
Service Attachment
Netpliance/Custom Pricing AMS Custom Terms (DB - 07 - 13) DISP Contract #_____
client software), training and support for its Users; (iii) billing and
collecting any amounts Customer elects to charge its Users in connection with
the Service, including applicable taxes as identified by Customer; (iv)
resolving all third party complaints concerning Users; and (v) implementing with
its Users appropriate terms, conditions, and measures to ensure that all Users
comply with the terms and conditions of the Agreement and this Attachment, and
that AT&T's liability to each User is limited to the same extent that AT&T's
liability to Customer is limited under the Agreement and this Attachment. If
Customer fails to comply with item (v), Customer shall indemnify AT&T against
any claims that would have been foreclosed had Customer complied with that item.
H. Customer is responsible for its Content and that of any of its Users
(including any Content hosted by Customer or any User on behalf of third
parties). Customer acknowledges that it has read and agrees to be bound by
AT&T's Acceptable Use Policy ("AUP"). The AUP, as it may be revised from time to
time, is published at www.ipservices.att.com/policy.html or at such other
----------------------------------
address as AT&T may specify by notice. The potential consequences of violating
the AUP are described in the AUP, but include filtering, blocking, or removing
Content, and suspension or termination of affected services. A violation of the
AUP is also a material breach of this Attachment.
I. To the extent deemed necessary by Customer or as reasonably requested by
AT&T, Customer shall implement security procedures and controls necessary to
limit access to the Service to Customer's authorized Users and shall maintain
facilities and procedures external to the Service for reconstruction of lost or
altered files, data, or programs.
J. All IP addresses, domain names, and telephone numbers made available by
AT&T on Customer's behalf in connection with the Service shall at all times
remain the property of AT&T or its suppliers and shall be nontransferable, and
Customer shall have no right to use such IP addresses or telephone numbers upon
termination or expiration of this Attachment.
K. Customer must market and sell the Service under Marks it owns or licenses.
Customer may not use AT&T's Marks in any way in connection with the Service.
L. Customer must at its expense provide the services and other items specified
as its responsibility in the Service Description.
M. Customer agrees that its Users may not resell the Service or otherwise make
the Service available to third parties for value. Without limitation, Customer
agrees that it will not knowingly market or sell the Service to ISPs or other
resellers or remarketers.
5. DISCLAIMER AND LIMITATION OF LIABILITY
A. PRODUCTS OR SERVICES SOLD OR PROVIDED UNDER ANOTHER CONTRACT OR TARIFF ARE
GOVERNED SOLELY BY THE TERMS OF THAT CONTRACT OR TARIFF, INCLUDING ANY
WARRANTIES, GUARANTIES, OR OTHER OBLIGATIONS OF AT&T LINDER THAT CONTRACT OR
TARIFF.
B. AT&T SHALL NOT BE RESPONSIBLE FOR: (i) SERVICE IMPAIRMENTS CAUSED BY ACTS
WITHIN THE CONTROL OF CUSTOMER, ITS AGENTS, SUBCONTRACTORS, SUPPLIERS,
LICENSEES, OR USERS; (ii) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS;
(iii) INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER
SERVICE PROVIDERS, NETWORKS, USERS, OR INFORMATIONAL OR COMPUTING RESOURCES
THROUGH THE INTERNET; (iv) INTERACTIONS WITH THIRD PARTIES THROUGH THE INTERNET;
(v) SERVICES OR EQUIPMENT PROVIDED BY THIRD PARTIES; OR (vi) PERFORMANCE
IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET. AT&T SHALL NOT BE LIABLE FOR
UNAUTHORIZED ACCESS BY THIRD PARTIES TO CUSTOMER'S OR ITS USERS' OR THIRD
PARTIES TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS
TO OR ALTERATION, THEFT, LOSS, OR DESTRUCTION OF CUSTOMER'S OR ITS USERS' OR A
THIRD PARTY'S NETWORK, SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES,
OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER
METHOD.
6. GENERAL
A. Unless expressly stated to the contrary, in this Attachment all references
to months are to calendar months, all references to quarters are to calendar
quarters, and all references to days are to calendar days.
B. AT&T will collect and generate information concerning Customer's Users in
the course of providing the Service to them. Customer grants AT&T the right to
access and use that User information for support, network monitoring and
planning, and. otherwise to fulfill AT&T's obligations under this Attachment. In
addition, AT&T may create and use aggregate statistical information relating to
Customer's Users' use of the Service so long as that statistical information is
not identifiable to Customer or its Users.
C. Nothing in this Attachment shall create or vest in Customer any right,
title, or interest in the Service, other than the right to use the Service under
the terms and conditions of this Attachment.
D. AT&T's performance obligations under this Attachment shall be solely to
Customer, and not to any User or other third party. Other than as expressly set
forth herein, this Attachment shall not be deemed to provide Users or other
third parties with any remedy, claim, right of action, or other right.
E. Customer and AT&T are both independent contractors. Neither party is agent,
legal representative, partner, joint venture, franchisee, employee, or servant
of the other party for any purpose.
F. If Customer is in the Commonwealth of Puerto Rico or the United States
Virgin Islands, AT&T shall immediately assign this Attachment to AT&T Global
Communications Services Inc., and Customer consents to that assignment.
G. Customer understands that the Service (including Internet use) may require
registrations and related administrative reports that am public in nature.
________________________________________________________________________________
END_____________________________________________________________________________
Page 2 of 5
AT&T PROPRIETARY
<PAGE>
Appendix A
AT&T Private Label Dial ISP Services Price Schedule
Netpliance/Custom Pricing (AMS) DSP Contract #___________
1. Implementation Charge
The Dial ISP implementation charge ("Implementation Charge") is (*****). The
Implementation Charge is not refundable for any reason, whether upon termination
or cancellation of this Attachment or otherwise.
2. Monthly Access Charges
A. Pricing Selections
------------------
1. Pricing Method (must choose one):
[X] Per-user pricing
[_] Usage-based pricing
If Customer has not selected one of the above Pricing Methods prior to the
Effective Date of this Attachment, usage-based pricing shall apply.
2. Monthly Commitments (must choose one only):
If Per User Pricing selected:
[X] (*****) Users
If Usage-based Pricing selected:
[_] (*****) Usage Hours
[_] (*****) Usage Hours
[_] (*****) Usage Hours
[_] (*****) Usage Hours
[_] (*****) Usage Hours
[_] (*****) Usage Hours
[_] (*****) Usage Hours
If Customer has not selected one of the above Monthly Commitments prior to the
Effective Date of this Attachment, the lowest commitment specified above for the
applicable Pricing Method shall apply.
The initial pricing of the Service is based on the Pricing method and commitment
selected by Customer. At any time during the Initial Service Period or a Renewal
Service Period, Customer may by written notice request a higher commitment from
AT&T's standard tables of Pricing and commitments for the Service, which AT&T
will provide to Customer on request.
The pricing described above applies during the Initial Service Period and
Renewal Service periods. However, for Service provided during Renewal Service
Periods, AT&T may at its option notify Customer that Pricing will correspond to
the lowest commitment for AT&T's then-current standard usage-based pricing
table; otherwise, pricing will be determined as it was during the last month of
the Service Period.
B. Per-User Pricing
----------------
The Dial ISP Monthly Access Charge using per-user pricing is determined as
follows:
"Billing Month" means a one month period with respect to which AT&T bills
Customer for the Service. The first Billing Month ends on the last day of the
month that includes the First Service Date.
"Unique User" means a User who accesses the Service with a unique User ID
provided by Customer, consistent with section 4.E of this Attachment
"Total Unique Users" means the aggregate number of Unique Users who access the
Service during a Billing Month. A Unique User who accesses the Service more than
once during a Billing Month is counted only one time when determining the Total
Unique Users for the Billing Month.
Section 1
A. The price in the right hand column of the Table I below shall apply in the
billing month following the billing month in which Customer met or exceeded the
corresponding threshold in the left-hand column. Such price shall apply on a
going forward basis for so long as Customer satisfies the corresponding
threshold requirement.
Table 1
----------------------------------------------
Price Per Unique User
Customer's Per Month
User Commitment 3-Year
Service Period
(*****)
of Usage per
Subscriber per month
--------------------------------------------
(*****) (*****)
--------------------------------------------
B. Table IA below constitutes Customer's "Ramp Commitments" during this
agreement.
Table 1A
Ramp Commitment
--------------------------------------------------------
Ramp Commitment Date Minimum Unique User
Commitment
--------------------------------------------------------
12/31/2000 20,000
--------------------------------------------------------
03/31/2001 100,000
--------------------------------------------------------
09/30/2001 140,000
--------------------------------------------------------
03/31/2002 200,000
--------------------------------------------------------
The Base Monthly Charge per Unique User will be (*****) unless Customer reaches
any of the levels contained in Table 1. Should this occur, then the price per
Unique User shall be determined according to the prices in Table 1, under the
guidelines in section 1a, above. Otherwise in any month in which Customer's
Unique Users is below the thresholds in Table 1 above, the terms in the
paragraph 1.C below shall apply.
C. If Customer fails to meet any of the above Ramp Commitments by the relevant
Ramp Commitment Date, then Customer shall be charged a monthly Price per Unique
User of (*****) for the entire Minimum Unique User Commitment in question
("Failure Charge"). The Failure Charge shall be in effect for any month after
the relevant Ramp Commitment Date in which the Minimum Unique User Commitment
for the Ramp Commitment Date in question is not met. By way of illustration
only, should Customer have 18,000 Unique Users for the month of January 2001,
the Customer shall be charged (*****) for its Unique Users for January, 2001
and for any other month until March 2001 in which Customer does not achieve
20,000 or more Unique Users.
In addition to the Base Monthly Charge, there are three usage-based Monthly
Surcharges, determined as follows:
The duration of each Dial ISP access session is recorded in increments of 3.6
seconds, with any fractional portion of 3.6 seconds rounded up to the next 3.6
second increment. The minimum recorded time per session is 3.6 seconds. Dial ISP
access sessions are then aggregated during each Billing
[*****=information that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.]
Page 3 of 5
AT&T PROPRIETARY
<PAGE>
Appendix A
AT&T Private Label Dial ISP Services Price Schedule
Netpliance/Custom Pricing (AMS) DSP Contract #___________
Month by the following types of connectivity: local V.34/V.90; 8xx; and ISDN.
The Monthly Surcharge for all 8xx connectivity is equal to the aggregate session
time for that connectivity multiplied by (*****) per hour.
The Monthly Surcharge for all ISDN connectivity is equal to the aggregate
session time for that connectivity multiplied by (*****) per B channel per hour.
The hourly surcharge per Subscriber is (*****) per hour after the (*****) of
V.34/V.90 connectivity per month. If a Subscriber uses more than (*****) of
the service in a month, the applicable Monthly Surcharge for the Subscriber is
the number of hours by which Subscriber exceeded the (*****) multiplied by
(*****). The Total Monthly Surcharge is the sum of all such individual Monthly
Surcharges incurred in that particular month.
The total Dial ISP Monthly Access Charge is equal to the Base Monthly Charge
plus all of the Monthly Surcharges.
C. Usage-Based Pricing
-------------------
The Dial ISP Monthly Access Charge using usage-based pricing is determined as
follows:
The duration of each Dial ISP access session is recorded in increments of 3.6
seconds, with any fractional portion of 3.6 seconds rounded up to the next 36
second increment. The minimum recorded time per session is 3.6 seconds. Dial
ISP access sessions are then aggregated by the following types of connectivity:
local V.34/V.90; 8xx; ISDN; and the aggregate of all usage regardless of the
type of connectivity.
The Base Monthly Charge for each of the first three billing months following the
First Service Date consists of three components:
. The aggregate access session time for local V.34/V.90 connectivity
multiplied by the respective price corresponding to Customer's Hour
Commitment in the applicable table below
. The aggregate access session time for local ISDN connectivity
multiplied by the respective price corresponding to Customer's Hour
Commitment in the applicable table below
. The aggregate access session time for 8xx connectivity multiplied by
(*****) per hour
The Base Monthly Charge for the fourth billing month following the First Service
Date and each succeeding billing month consists of the same three components as
above, except that the local V.34/V.90 aggregate access session time is first
adjusted by adding the number of hours, if any, by which Customer's Hour
Commitment exceeds the aggregate of all usage regardless of the type of
connectivity for that month.
Table 2
--------------------------------------------------------
2 Year Service Period
-------------------------------------
Local ISDN
Local V.34/V.90 Access Price
Customer's Access Price Per B
Hour Commitment Per Hour Channel Per Hour
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
[*****=information that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been
requested with respect to the ommitted portions.]
Page 4 of 5
AT&T PROPRIETARY
<PAGE>
Appendix A
AT&T Private Label Dial ISP Services Price Schedule
Netpliance/Custom Pricing (AMS) DSP Contract #___________
Table 3
---------------------------------------------------------
3-Year Service Period
-------------------------------------
Local ISDN
Local V.34/V.90 Access Price
Customer's Access Price Per B
Hour Commitment Per Hour Channel Per Hour
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
(*****) (*****) (*****)
---------------------------------------------------------
The total Dial ISP Monthly Access Charge is equal to the Base Monthly Charge;
there are no Monthly Surcharges for usage-based pricing.
3. Early Termination Fee
a. For termination by AT&T under Section 2.E of the Attachment, the Dial ISP
Early Termination Fee is $50,000.
b. In all other circumstances, the Dial ISP Early Termination Fee is equal to
Customer's then-current commitment multiplied by the price corresponding to that
commitment (for local V.34/V.90 access, in the case of an hour commitment), with
the result multiplied by the number of months remaining in the Service Period
after the effective date of termination, and that result multiplied by one-
quarter.
________________________________________________________________________________
END_____________________________________________________________________________
[*****=information that has been omitted and filed separately with the
Securities and Exchange Commission. Confidential Treatment has been
requested with respect to the omitted portions.]
Page 5 of 5
AT&T PROPRIETARY
<PAGE>
Appendix B
AT&T Private Label Dial ISP Implementation Checklist
Netpliance/Custom Pricing (AMS) DISP Contract #_________
[_]
Concept/Requirements Phase
------------------------------
a. Project Kick-off
----------------
. Received Signed Contract
. DNAE Orders Dedicated Line (Circuit ID _________/ Due Date ______________)
. Account ID Created
. Service Administrator (SA) IDs Created
. Project Manager Assigned
. Pre-Concept Filter/Project Tracking Tool Entries Created
. Technical Account Manager (TAM) Assigned
. Project Team Kickoff Meeting
. Customer Kickoff Meeting
b. Requirements Development
------------------------
. DISP 12 Month Forecast Received from Customer
. DISP Authentication Process Document given to Customer
. Identify Billing Requirements
. Identify Service Reporting Specs
. Network Operations Center (NOC) Procedure Document given to Customer
. Data Configuration Questionnaire given to Customer
. Receive Customer Network Design Document from Customer
. Project Requirements - Customer Sign-off received
. Project Plan Developed
[_]
Development Phase
---------------------
. AT&T Capacity/ Planning to analyze Forecast Data
. Develop Billing Reports
. Develop BA/T (Billing) Reports
. Standard Reports Setup
. Enable E-mail Notification of Phone Number Changes
. Profile Custnotes
. Dedicated Line Installation Complete
. Define Customer's RADIUS Server to Service Manager
. Create Model AA-MDL
. Define Logon String Rules
. Define Domain Name Server (DNS) Addresses
. Define SMTP Addresses
. Create Fenced Registration List (Optional)
. Define Dynamic Filter Lists (Optional)
. Profile Account / SA IDs to access Help desk web interface
[_]
Qualify Phase
-----------------
. Perform Pilot Enablement Testing
. Perform Production Enablement Testing
. Review signed NOC Agreement / Help Desk Web Site walk thru
[_]
Installations/Launch Phase
------------------------------
. Implementation Completion Date Notification to Customer
. Lifecycle Transition / To TAM
. Lifecycle Transition / To NOC Support
. Project Close Out Documentation
[_]
Implementation Completion Date / / /
--------------------------------------------------
Page 6 of 5
AT&T PROPRIETARY
<PAGE>
DISP Contract #__________
AT&T Private Label Dial ISP Term Sheet:
Price Schedule Information:
____ Per-user
__________ Commitment level
__________ Price per user
_____ Usage-based
__________ Commitment level
__________ Local Access Price
__________ ISDN Access Price
Please summarize below ANY modifications to the Standard Terms listed in
Appendix A for Dial ISP Services:
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
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