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EXHIBIT 10.53
Contract No. _______________
[INTIRA LOGO]
NETSOURCING AGREEMENT
THIS NETSOURCING AGREEMENT ("Agreement") is entered into as of September
29, 2000 (the "Effective Date") by and between INTIRA CORPORATION, a Delaware
corporation ("Intira"), and DOVEBID, INC., a Delaware corporation ("Customer").
BACKGROUND
Intira is in the business of providing hosting and data management, Internet
access, and security services in connection with applications that can be made
available on Intira's private network and/or the Internet. Customer, on the
terms and conditions set forth in this Agreement, desires to obtain from Intira
the services set forth in the Statement of Work attached hereto. Intira, on the
terms and conditions set forth in this Agreement, has agreed to provide such
services.
Accordingly, Intira and Customer hereby agree as follows:
SECTION 1 - DEFINITIONS
The following defined terms and other capitalized terms defined herein and as
described in the exhibits attached to this Agreement will govern the
interpretation of this Agreement.
"Customer Application" means the content, coding, text, applications, and
software that appear on, or are provided to Intira for which Intira will provide
the Netsourcing Services and which will be stored on the Servers (defined
below).
"Delivery Date" means the date on which the Netsourcing Services are
successfully installed and made available to Customer. The parties acknowledge
that the Netsourcing Services to be provided hereunder shall be performed in two
(2) phases ("Phase 1" and "Phase 2"). The Delivery Date for the Netsourcing
Services for Phase 1 shall be that date on which the Netsourcing Services for
such Phase 1 are successfully installed and made available to Customer. The
Delivery Date for Phase 2 shall be the earlier of (a) the date on which the
Netsourcing Services for such Phase 2 are successfully installed and made
available to Customer, or (b) January 1, 200l.
"Documentation" means any written, video or audio materials, including
training materials, provided by Intira to Customer for use in connection with
the Netsourcing Services.
"Intira Network" means the telecommunications equipment, facilities and
bandwidth owned or controlled by Intira and dedicated to supporting the
Netsourcing Services.
"Netsourcing Services" shall have the same meaning as is set forth in
Section 2.1 of this Agreement.
"Server" means the server or servers identified by the SOW as intended for
use in connection with the Netsourcing Services to be provided hereunder.
"Term" has the meaning ascribed to it by Section 5.1 hereof.
SECTION 2 - NETSOURCING SERVICES
2.1 Services. Intira, during the Term of this Agreement, will provide the
data management services, security services, internet access services and other
services (collectively, the "Netsourcing Services") described in the Statement
of Work attached to this Agreement as Exhibit A (the "SOW").
2.2 Service Level Agreement. The Netsourcing Services during the term will
meet the standards established by the Service Level Agreement "SLA" attached
hereto as Exhibit B. In the event Intira fails to satisfy the terms of the SLA
with respect to all or a portion of the Netsourcing Services, Intira will grant
Customer such rights and remedies as are specifically set forth in the SLA.
2.3 Change Requests. Customer, at any time prior to or during the Term,
may request additions, deletions, or alterations (all hereinafter referred to as
a "Change") to the Statement of Work. Within a reasonable time after a request
for a Change, Intira shall submit a proposal to Customer that includes any
changes in Intira's prices or in the performance schedule resulting from the
Change. Customer, within ten (10) days of receipt of the proposal, shall either
(i) accept the proposal with a written amendment directing Intira to perform the
Change or (ii) advise Intira not to perform the Change in which event Intira
shall proceed under the SOW as previously written. No such Change shall be
effective unless made pursuant to a written amendment or other writing signed by
both parties.
SECTION 3 - CUSTOMER RESPONSIBILITIES
3.1 Except as expressly provided by the SOW, Customer shall be solely
responsible for:
(a) Managing the Customer Application and all file uploads, downloads, and
transfers and other activities with respect to information on the Server
supplied or generated by Customer or Customer's customers or end users.
(b) Providing Customer's customers and end users all services associated
with the Customer Application, including without limitation support, order entry
help desk, sales, marketing, pricing and service plans, billing and collections
(including without limitation, protection against credit card fraud and any
other type of credit fraud).
(c) Installing, testing, operating and maintaining the interconnection
equipment or computer software programs provided by Customer or any user, other
than the equipment specifically provided by Intira under this Agreement.
(d) Adopting and implementing such security measures as Customer deems
appropriate with respect to all facilities other than the Intira Network
(e) Performing credit card verification, user pre-screening,
identification, login access and security procedures, address verification and
identification, and merchant bankcard transaction reconciliation.
(f) Complying with all laws and regulations and Intira's current policies
and guidelines regarding Internet and network usage (which can be found on
Intira's website, www.intira.com, or which Intira will provide on request).
Intira may change its policies and guidelines by notice provided in accordance
with the terms of this Agreement.
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(g) Such additional activities and responsibilities as the SOW may
assign to Customer.
3.2 Project Manager. Customer shall appoint a Project Manager to serve as
its primary representative with respect to the Statement or Work. Customer will
make the Project Manager reasonably available to work and consult with Intira to
pursue the objectives of this Agreement. Customer may change its Project Manager
by written notice provided in accordance with this Agreement.
SECTION 4 - PAYMENT
4.1 Fees. Subject to the terms of this Agreement, Customer agrees to pay
Intira all Installation Fees, Monthly Service Fees and other fees and charges as
set forth in Exhibit "C" to this Agreement on the schedule established by
Exhibit "C" or, in the absence of such a schedule, within thirty (30) days of
Intira's invoice therefor. The parties acknowledge and agree that the fees set
forth on Exhibit "C" have been agreed upon by the parties solely with respect to
the specific elements of Customer's Netsourcing solution, the details of which
are attached hereto and incorporated herein as Exhibit "D" ("Configuration"). In
the event that, after the Effective Date hereof, Customer requests or otherwise
effectuates a material change to the Configuration, or in the event such a
material change to the Configuration becomes necessary as a result of final
engineering review by Intira and/or Customer, Intira reserves the right,
reasonably and in good faith, to amend the fees set forth on Exhibit "C" by
providing written notice to Customer of any change with respect thereto, in
order to take into account any such material change(s) to the Configuration;
PROVIDED, HOWEVER, Intira will not implement any change that would cause an
increase to the fees and charges hereunder without Customer's reasonable
consent.
4.2 Taxes. The fees established by Exhibit C are exclusive of all sales,
use, value-added, and other taxes (excluding income taxes), customs and duties
(collectively, "Taxes") arising out of this Agreement or the Netsourcing
Services provided hereunder. Customer will pay all such Taxes or, if Intira is
required to pay any of the same, will reimburse Intira for the same.
4.3 Late Charges. If Customer fails to pay any fees or expenses within
thirty (30) days after the date such payment was due, Intira may, at its option,
charge Customer a late fee at the rate of 1.5% per month or part thereof that
the payment remains delinquent (but in no event more than the maximum rate
allowed by applicable law).
SECTION 5 - TERM, EXPIRATION, AND TERMINATION
5.1 Term. The term of this Agreement (the "Term") will commence on the
Effective Date and, unless otherwise terminated as provided herein, will
continue for the number of months following the Delivery Date specified by
Exhibit "C" hereto.
5.2 Termination.
(a) Termination for Cause. Either party may terminate this Agreement by
written notice if the other party commits a material breach of this Agreement,
and such material breach continues for a period of ten (10) days (if the breach
is a failure to pay any amounts due under this Agreement) or thirty (30) days
(in all other cases) following the nonbreaching party's notice thereof. Intira,
if it reasonably believes that Customer's breach threatens immediate or
irreparable harm to Intira or any other Intira customer, will be entitled to
suspend Netsourcing, Services to Customer during the notice period.
Notwithstanding anything to the contrary in this Agreement, Customer shall have
the right to terminate this Agreement pursuant to this paragraph, upon written
notice to Intira, in the event Customer Application is unavailable for two (2)
periods of four (4) continuous hours apiece within a sixty (60) day period;
such unavailability shall be determined in the same manner as unavailability is
determined for purposes of applying the Application Access Availability
Commitment set forth in the SLA.
(b) Termination for Convenience. Customer may terminate this Agreement for
Convenience upon thirty (30) days prior written notice to Intira, and this
Agreement shall actually become terminated after expiration of such thirty-day
period (unless the parties agree otherwise in writing). In the event Customer so
terminates this Agreement, Customer shall pay to Intira a Cancellation Fee equal
to the sum of (a) fifty percent (50%) of the Monthly Service Fee as of the date
of such termination (without application of any discount or deferrals
hereunder), multiplied by the number of months remaining in the Term from the
date of such termination through the eighteenth (18th) full month of the
Netsourcing Services, and (b) twenty-five percent (25%) of the Monthly Service
Fee as of the date of such termination (without application of any discount or
deferrals hereunder), multiplied by the number of months remaining in the Term
from the end of the eighteenth (18th) full month of Netsourcing Services through
the end of the Term. The parties acknowledge that the foregoing Cancellation Fee
shall only apply to charges and fees solely as are specifically set forth on
Exhibit "C", in the event any amounts become charged pursuant to any Service
Change Order or amendment hereto after the date upon which the Netsourcing
Services have commenced, and in the event after implementation of the Change(s)
giving rise to such additional charges and fees, Customer terminates this
Agreement, then, solely as it relates to the additional fees charged
thereunder, Customer shall pay an additional Cancellation Fee equal to the sum
of (a) fifty percent (50%) of the increase to the Monthly Service Fee charged
under such Service Change Order or amendment multiplied by the number of months
remaining in the first eighteen months that the services in connection with the
Change are to be provided, and (b) twenty-five percent (25%) of the increase to
the Monthly Service fee charged under such Service Change Order or amendment
multiplied by the number of months in excess thereof and extending through the
remainder of the Term. In addition to any Cancellation Fee or additional
Cancellation Fee hereunder, Customer shall be responsible for all fees and
obligations accruing up to the date upon which this Agreement is actually
terminated.
(c) Effect of Termination. Upon termination of this Agreement, (i) Intira
will be entitled to suspend or terminate the Netsourcing Services, including
restricting Customer's and, its end-users' access to the Server, and (ii)
provided Customer has paid all fees and other charges accruing under this
Agreement, Intira will grant Customer at least ten (10) days to remove Customer
data stored on the Server. Neither the expiration nor termination of this
Agreement will excuse Customer from paying Intira any and all amounts, due and
owing under this Agreement. Sections 1 5.2(b), 6, 7, 8, and 9 will survive the
expiration or termination of this Agreement.
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SECTION 6 - REPRESENTATIONS AND
WARRANTIES
6.1 By Intira. Intira represents and warrants that (i) the Netsourcing
Services will be of professional and workmanlike quality and performed in a
professional and workmanlike manner, (ii) all necessary corporate action has
been taken by Intira to authorize the execution, delivery and performance of
this Agreement and this Agreement is the valid and binding obligation of Intira,
enforceable against Intira in accordance with its terms, (iii) subject to the
provisions of Section 6.2 and to the best of Intira's knowledge, no copyright,
patent, trade secret or other intellectual property rights of any third party
will be infringed by Intira's performance of the Netsourcing Services, (iv) to
the best of its knowledge and belief, the Netsourcing Services comply with all
laws, rules, legislation, and regulations of applicable jurisdictions; and (v)
Intira has made and will make commercially reasonable efforts to ensure that the
Server shall be free from viruses, worms, trojan horses and other malicious
code.
6.2 By Customer. Customer represents and warrants that (i) all necessary
corporate action has been taken by Customer to authorize the execution, delivery
and performance of this Agreement and this Agreement is the valid and binding
obligation of Customer, enforceable against Customer in accordance with its
terms, (ii) Customer has sufficient right, title and interest in and to the
Customer Application to permit Customer to carry out its obligations pursuant to
this Agreement; (iii) to the best of Customer's knowledge and belief, Customer
Application does not infringe, and will not cause the Netsourcing Services to
infringe, any patent, copyright, trade secret, trademark, or other intellectual
property right of any third party or constitute a defamation, invasion of
privacy, or violate any right of publicity or other third-party right; (iv) to
the best of its knowledge and belief, Customer Application complies with all
law, rules, legislation, and regulations of applicable jurisdictions; (v)
Customer Application is not, and will not cause the Netsourcing Services to be,
illegal, obscene, offensive or immoral; (vi) Customer is in compliance with and
will abide by all federal, state and local laws, rules, regulations and
ordinances, specifically including but not limited to the Communications Decency
Act of 1996, as amended, and Customer will not transmit communications described
in 47 U.S.C. Section 223(b) and will restrict such access to Customer
Application accordingly; and (vii) Customer has made and will make commercially
reasonable efforts to ensure that the Customer Application shall be free from
viruses, worms, trojan horses and other malicious code.
6.3 Exclusion of Warranties and Limitation of Liability.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL.
INTIRA DISCLAIMS ALL AND CUSTOMER RECEIVES NO FURTHER WARRANTIES, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR ANY WARRANTY THAT THE NETSOURCING SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. ALL WARRANTIES WITH RESPECT TO THE NETSOURCING
SERVICES ARE STRICTLY LIMITED TO THOSE SET FORTH IN THIS AGREEMENT.
(b) (1) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL DAMAGES OR ANY LOSS OF PROFIT,
REVENUE DATA OR GOODWILL WHETHER INCURRED OR SUFFERED AS A RESULT OF
UNAVAILABILITY OF THE NETSOURCING SERVICES OR THE CUSTOMER APPLICATION (AS
APPLICABLE), PERFORMANCE, NONPERFORMANCE NEGLIGENCE, TERMINATION, BREACH OR
ACTION OR INACTION UNDER THIS AGREEMENT (IN EACH CASE OTHER THAN TO THE EXTENT
INCURRED BY INTIRA AS A RESULT OF CUSTOMER'S FAILURE TO PAY FEES AND CHARGES
WHEN DUE), EVEN IF THE OTHER PARTY ADVISES THE FIRST PARTY OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGE.
(2) EXCEPT WITH RESPECT TO CUSTOMER'S OBLIGATION TO PAY ANY FEES
HEREUNDER NEITHER PARTY'S TOTAL LIABILITY FOR DAMAGES IN CONNECTION WITH THIS
AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL EXCEED THE TOTAL
AMOUNT RECEIVED BY INTIRA UNDER THIS AGREEMENT FOR THE SIX-MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH LIABILITY ARISES.
(c) NOTHING IN THIS SECTION 6.1 SHALL SERVE TO DEPRIVE CUSTOMER OF THE
REMEDIES (OR RELIEVE INTIRA OF THE RESPONSIBILITIES) IMPOSED BY THE SERVICE
LEVEL AGREEMENT ("SLA") ATTACHED HERETO AS EXHIBIT "B". CUSTOMER'S REMEDY FOR
INTIRA'S FAILURE OR INABILITY TO SATISFY ITS SLA SHALL BE LIMITED TO THE
REMEDIES SET FORTH IN SUCH SLA, AND ANY OTHER RIGHTS OR REMEDIES HEREUNDER SHALL
NOT BE CUMULATIVE TO CUSTOMER'S RIGHTS AND REMEDIES THEREUNDER, PROVIDED, THAT
NOTHING IN THIS SECTION OR THE SLA SHALL PRECLUDE CUSTOMER FROM TERMINATING THIS
AGREEMENT FOR CAUSE PURSUANT TO SECTION 5.2(a) IF INTIRA FAILS CONSISTENTLY AND
ROUTINELY TO MEET ANY ONE OF THE STANDARDS ESTABLISHED BY THE SLA.
SECTION 7 - INDEMNIFICATION
7.1 Indemnification by Customer. Customer will defend indemnify, and hold
Intira harmless from and against all claims by third parties, and all associated
liabilities, costs (including reasonable attorneys' fees) and/or damages to or
suffered or incurred by Intira arising out of any material breach by Customer of
the warranties established by Section 6.2 hereof. Further, Customer shall
indemnify Intira for any loss, damage costs, liability, and expenses, including
reasonable attorneys fees, sustained in connection with, and Customer shall
defend any suit and dispose of any claims or other proceedings based on, an
allegation the Customer Application or any information supplied by Customer or
any of Customer's customers hereunder violates or infringes on any patent
copyright, trademark, service mark, or other intellectual property right(s),
whether such right(s) be registered or unregistered.
7.2 Indemnification by Intira. Intira will defend, indemnify and hold
Customer harmless from and against all third party claims, and all related
liabilities, costs (including reasonable attorneys' fees) and/or damages to or
suffered or incurred by Customer arising out of any material breach by Intira of
the warranties established by Section 6.1 hereof. Further, Intira
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shall indemnify Customer for any loss, damage, costs, liability, and expenses,
including reasonable attorneys' fees, sustained in connection with, and Intira
shall defend any suit and dispose of any claims or other proceedings based on,
an allegation that any product or service supplied solely by Intira or at
Intira's request (other than by Customer) hereunder violates or infringes on any
patent, copyright, trademark, service mark, or other intellectual property
right(s), whether such right(s) be registered or unregistered.
SECTION 8 - OWNERSHIP; CONFIDENTIALITY
8.1 Intira Technology. Notwithstanding any other provision of this
Agreement to the contrary, Intira shall retain all right and title to and in any
software (excluding Customer provided software and Customer Application),
methodology, physical security system, access control system, databases,
computer programs, hardware, audio/visual equipment, tools, general utility
programs, libraries, discoveries, inventions, techniques, writings, know-how,
designs, or other information either owned by Intira prior to the date hereof,
acquired by Intira during the term of this Agreement, developed by Intira or at
Intira's request during the term of this Agreement or specifically created by
Intira or at Intira's request for the purpose of performing the Netsourcing
Services (collectively, the "Intira Technology"). Any Intira Technology
developed during the course of this Agreement will not be work made for hire.
8.2 Customer Technology. Notwithstanding any other provision of this
Agreement to the contrary, Customer shall retain all right and title to and in
any Customer Application, methodology, physical security system, access control
system, databases, computer programs, hardware, audio/visual equipment, tools,
general utility programs, libraries, discoveries, inventions, techniques,
writings, know-how, designs, or other information either owned by Customer prior
to the date hereof, acquired during the Term, or developed solely by Customer
during the Term.
8.3 Confidentiality. The Confidentiality Agreement or Nondisclosure
Agreement previously executed by the parties shall establish each party's
obligations with respect to the information received from the other party in the
course of performing or exercising the rights granted pursuant to this
Agreement.
SECTION 9 - GENERAL
9.1 Force Majeure. Intira shall not be liable for any delay or failure to
carry out the Netsourcing Services provided hereunder if such delay or failure
is due to any cause beyond the control of Intira, including without limitation,
restrictions of law, regulations, order or other governmental directives, labor
disputes, acts of God, acts of third-party vendors, carriers or suppliers,
third-party mechanical or other equipment breakdowns, fire, explosions, fiber
optic cable cuts, storm or other similar events. If any force majeure event
shall prevent a party from performing its obligations pursuant to this Agreement
for a period of thirty (30) days or more, the other party shall be entitled to
terminate this Agreement for convenience by written notice.
9.2 Security. CUSTOMER ACKNOWLEDGES AND AGREES THAT (1) ANY SECURITY
SERVICES, THAT INTIRA HAS AGREED TO PERFORM UNDER THE STATEMENT OF WORK
CONSTITUTE ONLY ONE COMPONENT OF CUSTOMER'S OVERALL SECURITY PROGRAM AND ARE NOT
A COMPREHENSIVE SECURITY SOLUTION; AND (2) THERE IS NO GUARANTEE THAT THE
SECURITY SERVICES INTIRA HAS AGREED TO PERFORM UNDER THE STATEMENT OF WORK WILL
BE ERROR FREE OR THAT NETWORKS OR SYSTEMS CONNECTED TO THE NETSOURCING SERVICES
WILL BE SECURE AND (3) THERE IS NO GUARANTEE THAT THE COMMUNICATIONS SENT BY
MEANS OF THE CUSTOMER'S FIREWALL(S) WILL BE PRIVATE.
9.3 Arbitration. All disputes arising out of or related to this Agreement
shall be determined and resolved by arbitration in San Francisco, California in
accordance with the rules of the American Arbitration Association ("AAA"). The
arbitrators shall be appointed in accordance with the then prevailing AAA rules.
Any award rendered by the arbitrators shall be final and binding upon the
parties. Neither party shall have the right to further appeal or redress the
matters arbitrated except for the purpose of obtaining the judgment rendered by
the arbitrators. Judgment upon any arbitration award may be entered and enforced
in any court of competent jurisdiction. Notwithstanding anything to the
contrary, Intira may, at its discretion, seek judicial relief in conjunction
with collection of any amounts due hereunder from Customer. This Section shall
be severable from the other provisions of this Agreement and shall survive and
not be merged into any judgment hereunder.
9.4 Miscellaneous Provisions. (a) This Agreement and each term hereof may
only be amended in a writing signed by all the parties. (b) No failure or delay
on the part of either party in exercising any right hereunder and no course of
dealing between the parties shall operate as a waiver of any provision hereof.
(c) In conjunction with this Agreement, each party shall at all times comply
with all applicable federal, state, and local statutes, ordinances, regulations
and orders of any commission or other government body. (d) This Agreement shall
be governed by the laws of the State of California. (e) This Agreement and its
exhibits, attachments, and documents incorporated herein comprise the complete
and exclusive statement of the agreement of the parties concerning the subject
matter hereof, and supersede all previous statements, representations, and
agreements concerning the subject matter hereof. (f) If any part of this
Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective only to the extent of such invalidity, without in any way
affecting the remaining parts of said provision or the remaining provisions of
this Agreement, and the Customer and Intira agree to negotiate with respect to
any such invalid or unenforceable part to the extent necessary to render such
part valid and enforceable. (g) Customer will be responsible for all costs of
collection reasonably incurred by Intira, including without limitation,
litigation costs, reasonable attorneys' fees and court costs, resulting from
Customer's failure to pay any amounts when due pursuant to this Agreement.
9.5 Counterparts; Fax Signatures. This Agreement may be executed in
multiple counterparts and delivered by facsimile transmission, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
9.6 Assignment. Neither party shall assign this Agreement or any rights
hereunder without the prior written consent of the other party. Notwithstanding
the foregoing neither party shall require the other party's consent for an
assignment to a purchaser of substantially all of the assignor's
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capital stock or substantially all of the assets to which this Agreement
relates.
9.7 Affiliates. Intira shall be entitled to perform any obligation or
exercise any right established by this Agreement through one or more Intira
affiliates, provided that Intira remains liable for its full performance under
this Agreement.
9.8 Publicity: Trade Reference. Intira may include Customer's name and logo
in Intira's customer list and may identify Customer by name and logo as its
Customer on its Internet site; provided, however, Intira will obtain Customer's
prior written approval of any other written materials that purport to describe
the parties' agreement or the nature of the relationship provided hereunder.
Following execution of this Agreement, the parties hereto agree to issue a joint
press release announcing the relationship established between the parties
hereunder. Further, upon execution of this Agreement Customer agrees to serve as
a "reference account" and upon reasonable notice from Intira, shall serve as a
trade reference to potential customers, vendors, investors, or other third
parties designated by Intira; provided, however, to the extent practicable,
Intira shall provide Customer with reasonable prior notice of its need to have
Customer serve as a trade reference such notice to include the identity and
basic information on the third party for whom Customer will serve as a trade
reference.
9.9 Notices. All notices given under this Agreement must be in writing and
will be deemed effective when delivered in person or by a reputable next-day
courier, by facsimile or three (3) business days after being mailed via
certified mail return receipt requested, to the appropriate address shown below.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION
WHICH MAY BE ENFORCED BY THE PARTIES
IN WITNESS WHEREOF, the Parties set their hands to this Netsourcing Agreement
the date and year first above written
INTIRA CORPORATION:
By: /s/ Bernie Schneider
---------------------------------
Name: Bernie Schneider
-------------------------------
Title: President/CEO
------------------------------
5667 Gibraltar Drive
Pleasanton, CA 94588
ATTN: Controller
cc: General Counsel
Telephone: 925-924-8000
Fax: 925-924-8200
DOVEBID, INC.
By: /s/ Jeffrey M. Crowe
---------------------------------
Name: Jeffrey M. Crowe
-------------------------------
Title: President & CEO
------------------------------
1241 East Hillside Blvd.
Foster City, CA 94404
ATTN: Chief Technology Officer
Telephone:
--------------------------
Fax:
--------------------------------
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EXHIBIT "A"
STATEMENT OF WORK
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EXHIBIT "B"
SERVICE LEVEL AGREEMENT
SEE ATTACHED
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Intira Corporation
NETSOURCING SERVICE LEVEL AGREEMENT
CUSTOMER: DOVEBID, INC,
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Intira is committed to providing a scalable and highly available Netsourcing
solution for CUSTOMER's mission-critical e-business application, which is why
Intira offers the following quality of service commitments:
APPLICATION ACCESS AVAILABILITY COMMITMENT
Intira commits to have the CUSTOMER's Netsourced application accessible, to
the point where CUSTOMER's application leaves Intira's network, for 99.5%
of the time within a given calendar month. Intira will credit CUSTOMER's
account if this Application Access Availability Commitment is not met, as
set forth below. Intira will calculate the time within a given calendar
month that the CUSTOMER's application is inaccessible to users of
CUSTOMER's application due to the Intira supplied Netsourcing
infrastructure not functioning properly. Such inaccessibility shall consist
of the number of minutes that CUSTOMER's application was not accessible by
reason of all or a part of the Intira-provided infrastructure not
functioning properly. For each cumulative 15-minute period in excess of the
99.5% average that CUSTOMER's application is not accessible in any calendar
month, CUSTOMER's account shall be credited for one day (1/30th) of the
Monthly Service Fee (as defined in Netsourcing Agreement between the
parties, dated September 29, 2000).
REPORTING COMMITMENT:
Intira commits to notify CUSTOMER within 15 minutes after Intira's
determination that all or a part of CUSTOMER's Intira-provided Netsourcing
services are unavailable, to the extent such service is "up" or "down".
This Reporting Commitment is applicable only if CUSTOMER provides all the
required contact information to Intira; CUSTOMER is solely responsible for
providing Intira accurate and current contact information for CUSTOMER's
designated points of contact. For each additional 15-minute period that
Intira fails to notify CUSTOMER, CUSTOMER's account shall be credited for
one day (1/30th) of the Monthly Service Fee (as defined in Netsourcing
Agreement between the parties, dated September 29, 2000).
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Customer: DoveBid, Inc. Rev 2 8-01-99
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MAXIMUM CREDIT AVAILABLE:
Notwithstanding anything to the contrary, the aggregate amount of credits
to be provided under this SLA for a given month or reporting period (as the
case may be) month, shall not exceed the Monthly Service Fee (taking into
account any applicable discounts and deferrals) actually charged by Intira
for such month or reporting period to provide the Netsourcing Services.
This SLA sets forth Customer's sole remedies for any claim relating to the
Netsourcing Service or the Intira Network, except as otherwise specifically
agreed to in writing by an authorized officer of Intira. No credits will be
given if the Intira's failure to meet the applicable commitment is
attributable to or regarding: 1) maintenance performed during Intira's
scheduled maintenance window; 2) Any CUSTOMER-owned or -ordered telephone
company circuits; 3) Any Intira-ordered telephone company circuits outside
the contiguous U.S.; 4) A fault in CUSTOMER's applications, equipment, or
facilities, or CUSTOMER's failure to perform any of its obligations
hereunder or under the Netsourcing Agreement; 5) Acts or omissions of
CUSTOMER, or of any user of the service authorized by CUSTOMER; 6) Reasons
of Force Majeure (as defined in the applicable Netsourcing Agreement); or
7) Any Internet access or related problems beyond the demarcation point of
Intira's peering partners. Further, in the event CUSTOMER has been granted
unrestricted access to its production environment (including but not
limited to "root access" in connection with UNIX environments or
"administration rights" in connection with Windows NT environments) this
SLA, and the commitments hereunder, shall cease and be of no force and
effect during such period that CUSTOMER retains such unrestricted access,
and for a period of not less than seventy-two (72) hours after CUSTOMER
ceases to have such unrestricted access.
Intira Corporation Netsourcing Service Level Agreement Page 2 of 3
Customer: DoveBid, Inc. Rev 2 8-01-00
<PAGE>
CREDIT CLAIM PROCEDURE:
Intira will monitor the accessibility of Customer Application (as defined
herein) monthly and report to CUSTOMER on such accessibility periodically.
Any dispute of credits issued under this SLA must be submitted y CUSTOMER
to Intira within 90 days of the end of the month in which the disputed
credits are attributable. Intira will acknowledge all claims within 10
business days and will review all claims within 30 business days. CUSTOMER
will be informed by electronic mail whether any adjustment to the credit
will be given. In the event CUSTOMER disagrees with Intira's adjustment,
CUSTOMER shall notify Intira of such disagreement in writing within 30 days
of receipt of Intira's adjustment. CUSTOMER and Intira shall use best
efforts to resolve the discrepancy in a mutually agreeable fashion. In the
event that the discrepancy is not resolved within 30 days after such
notice, the dispute shall be submitted to arbitration in accordance with
Section 9.3 of the Netsourcing Agreement between the parties, dated
September 29, 2000.
EFFECTIVE DATE:
This SLA is effective as of 9-29-2000 ("Effective Date") and shall only
become applicable to the Netsourcing services upon the later of (a)
completion of the "stabilization period," as such term is defined in the
Statement of Work, or (b) ninety (90) days from the Effective Date.
Intira Corporation Netsourcing Service Level Agreement Page 3 of 3
Customer: DoveBid, Inc. Rev 2 8-01-00
<PAGE>
Contract No. ___________________
EXHIBIT "C"
PRICING
Customer: DoveBid, Inc.
Billing Address: 1241 East Hillside Blvd., Foster City, CA 94404,
ATTN: Accounts Payable
The Term of the Agreement commences on the Effective Date and expires at the end
of Intira's billing cycle containing the date and months following the Delivery
Date for the Netsourcing Services in connection with Phase 1.
The fees and charges established by this Exhibit C will apply during the Term.
Except as provided below, all fees and charges will be due and payable within
thirty (30) days of Intira's invoice therefor, Intira shall submit the first
invoice to Customer for Monthly Service Fees beginning in the Intira billing
cycle after the Delivery Date for Phase
Installation Fee: Customer shall pay the sum of Thirty Thousand Two Hundred
Forty Dollars ($30,240) as a one-time Installation Fee for the equipment,
services, and circuits supplied under this Agreement in connection with the
Netsourcing Services for Phase 1. In addition thereto, Customer shall pay the
sum of Six Thousand Three Hundred Twenty Dollars ($6,320) as a one-time
Installation Fee for the equipment, services, and circuits supplied under this
Agreement in connection with the Netsourcing Services for Phase 2. The
Installation Fee for Phase 1 shall become due and payable upon execution of this
Agreement. The Installation Fee for Phase 2 shall become due and payable on the
Delivery Date of the Netsourcing Services for Phase 2. Solely with respect to
the Netsourcing Services for Phase 1, Intira commits to have installation and
activation of such equipment, services, and circuits substantially complete
within five (5) weeks of receipt of the necessary equipment and software to
complete such installation process. If Intira fails to so complete such
installation within the aforementioned time period, Intira shall credit an
amount equal to the Installation Fee actually paid by Customer for Phase 1
against any amounts that may otherwise become due from Customer under this
Agreement.
Professional Services and Consulting Fees: Customer shall pay the sum of Ten
Thousand Dollars ($10,000) as a one-time Professional Services Fee for
developing and delivering to Customer the SOW. Such amount shall become due and
payable on the date Customer executes this Agreement. Upon full payment of such
amount, such Professional Services Fee shall be credited against the Monthly
Service Fees that become due and payable for each month of the Term beginning in
the thirteenth (13th) full month of the Netsourcing Services and extending
through the Term, in equal credit installments of $833.33 per month.
Notwithstanding anything herein to the contrary, in the event this Agreement
becomes terminated for any reason prior to the thirteenth (13th) full month of
the Netsourcing Services, or in the event this Agreement becomes terminated
prior to expiration of the Term, Customer shall not be entitled to payment or
compensation for any uncredited amounts that would have otherwise been credited,
absent such termination, pursuant to the foregoing provision. In addition to the
foregoing, Customer shall pay to Intira the sum of Three Thousand Five Hundred
Dollars ($3,500) per day as a Consulting Fee for needs assessment, engineering,
and other professional consulting services provided by Intira to Customer
outside the scope of designing and implementing the SOW.
Monthly Service Fee: Each month during the Term, Customer shall pay a Monthly
Service Fee equal to Thirty Thousand Dollars ($30,000) for the Netsourcing
Services for Phase 1. In addition thereto, Customer shall pay an additional
Monthly Services Fee equal to Nine Thousand Two Hundred Dollars ($9,200) per
month for the Netsourcing Services for Phase 2. For each such Phase, such amount
reflects the sum of (a) the Monthly Data Management Services Fee, (b) the
Monthly Internet Access Services Fee, (c) the Monthly Security Services Fee, and
(d) any Miscellaneous Monthly Fees (each of which is defined below). In no event
shall the Monthly Service Fee for Phases 1 and 2 together be less than $39,200.
A. MONTHLY DATA MANAGEMENT SERVICES FEE. Each month, for the hosting and
data management services provided under this Agreement, Customer shall pay the
following as a Monthly Data Management Services Fee:
<TABLE>
<CAPTION>
Phase 1: Phase 2:
<S> <C> <C>
Server Administration Services: $ 886.00 $ 954.00
Server Provisioning Services: $ 4,889.00 $ 3,724.00
Enhanced Reporting and Monitoring Services: $ 664.00 $ 124.00
Operational Database Administration Services: $ 590.00 $ 110.00
</TABLE>
Intira Proprietary and Confidential
Page 8 of 10
<PAGE>
Contract No. _________________
<TABLE>
<S> <C> <C>
Load Balancing, Failover Services: $ 1,107.00 $ 207.00
Automated Tape Backup Services (21 Tapes): $ 1,937.00 $ 362.00
Disk (online) Storage (50 GB) $ 923.00 $ 172.00
---------------- ---------------
Monthly Data Management Services Fee: $ 10,996.00 $ 5,653.00
</TABLE>
In no event shall the Monthly Data Management Services Fee be less than
$16,649.00 for Phases 1 and 2 together.
B. MONTHLY INTERNET ACCESS SERVICES FEE. Customer shall pay a Monthly
Internet Access Services Fee for the Internet Access Services and other
connectivity services provided hereunder.
<TABLE>
<CAPTION>
Phase 1: Phase 2:
------------- -------------
<S> <C> <C>
Data Center Connectivity Services: $ 6,126.00 $ 1,144.00
Private Network Connectivity Services: $ 332.00 $ 62.00
------------- -------------
Monthly Internet Access Service Fee: $ 6,458.00 $ 1,206.00
</TABLE>
Notwithstanding anything herein to the contrary, in no event shall the Monthly
Internet Access Services Fee be less than $6.458.00 for Phase 1 and $7,664.00
for both Phases 1 and 2. The Private Network Connectivity Services Fee set forth
above represents the fee to be charged by Intira for Intira's services in
connection with accommodating Customer's provisioning of its own (1) T1 circuit;
Intira shall not be responsible for provisioning such circuit absent further
agreement by the parties in writing. Customer shall be solely responsible for
its own local loops, the cost of which is not included in this pricing exhibit.
C. MONTHLY SECURITY SERVICES FEE. For the Security Services provided under
this Agreement, Intira shall charge Customer a Monthly Security Services Fee
equal to $12,546.00 for Phase 1. In addition thereto, Intira shall charge
Customer an additional Monthly Security Services Fee equal to $2,341.00 for
Phase 2. In no event shall the Monthly Security Services Fee for Phases 1 and 2
together be less than $14,887.00.
D. MISCELLANEOUS MONTHLY FEES. In addition to the monthly fees set forth
above, Customer shall pay Miscellaneous Monthly Fees in the amount of
$____N/A______, such fees representing _______________N/A__________________.
Additional Fees. The parties acknowledge that the fee charged for Data Center
Connectivity Services, incorporated into the Monthly Internet Access Services
Fee above, includes only those fees for Two (2) 100bT Ethernet Connection(s) to
the data center and covering only the first 3 Mbps of usage for each such
Ethernet Connection. For usage in excess of such 3 Mbps on each such Ethernet
Connection, based upon 95th percentile of actual usage, used by customer in a
given month, Intira shall charge an Additional Fee of $1,200.00 for each
additional Mbps used. Such Additional Fee shall be in addition to any other fees
or charges under this Agreement, and shall be billed in conjunction with the
Monthly Service Fee above.
Intira Proprietary and Confidential
Page 9 of 10
<PAGE>
Contract No. ___________________
EXHIBIT "D"
CONFIGURATION
See attached Visio diagrams for Phases 1 and 2.
Intira Proprietary and Confidential
Page 10 of 10
<PAGE>
[GRAPHICS]
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[GRAPHICS]
