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EX-10.15 2 f99494exv10w15.txt EXHIBIT 10.15 EXHIBIT 10.15 CLIENT: DIGITAL IMPACT, INC. --------------------- ADDRESS: 177 BOVET RD --------------------- SAN MATEO CA 94402 --------------------- DATE: 9/25/02 --------------------- [GLOBIX LOGO] MASTER SERVICE AGREEMENT (vC1.01) This Master Service Agreement ("Agreement"), by and between Globix Corporation, a Delaware corporation with offices at 139 Centre Street, New York, NY 10013 ("Globix") and Client covers business transactions which Globix and Client may enter into from time to time. NOW, THEREFORE, the parties hereto agree as follows: DEFINITIONS CLIENT: The party entering into this Agreement with Globix. CONTENT: Audio, video, film, slides or other images or text (digital or otherwise) either provided to Globix by Client for Globix's performance of the Services or transmitted through the Globix network. EXHIBIT I: Sets forth a description, and the cost, of specific Goods and/or Service to be performed, or provided, by Globix. Separate Exhibits I may be executed for different Goods and/or Service. GOODS: Any products, including hardware, firmware or software licenses sold, licensed or otherwise provided to Client. SERVICE: Work performed by Globix hereunder. SECTION 1. TERM This Agreement shall remain in effect until terminated pursuant to Section 10 hereof. SECTION 2. ORDER SUBMISSION, CREDIT APPROVAL AND DEPOSITS Client may from time to time submit to Globix orders containing requisite information on an Exhibit I or other approved form. Globix's acceptance shall confirm the availability of the Goods and/or Service requested. Orders are subject to credit approval. Client shall provide Globix with information to demonstrate acceptable credit before delivery of Goods and/or Service under any Exhibit I. Globix may require Client to prepay or furnish a deposit as a condition of acceptance or continuation of an order. SECTION 3. BILLING AND PAYMENT 3.1 BILLING. One time set-up fees are due upon order submission. Recurring Service charges are billed monthly in advance, effective upon Globix's delivery of Service. Usage and consumption charges are billed in arrears. 3.2 PAYMENT. Payment is due in accordance with the invoice, without set off or deduction within thirty (30) days of the invoice date. The unpaid balance of any invoice shall bear interest at the lesser of 1.5% per month (prorated on a daily basis) or the highest rate allowed by law and Client shall pay all collection costs including reasonable attorneys' fees. 3.3 DISPUTED BILLS. Client may dispute an invoice or portion thereof only by (i) submitting a written detailed claim (c/o Accounting Dept.) describing such dispute within thirty (30) days of the invoice date and (ii) making full and timely payment of all undisputed amounts. 3.4 TAXES AND FEES. Prices for Goods and/or Service are exclusive of applicable sales or use taxes, which shall be paid by Client. 3.5 REGULATORY AND OPERATIONAL CHANGES. In the event of any future regulatory requirement, tax, tariff, increased power costs or similar circumstance that increases the cost of Service, Client shall have thirty (30) days after notice of the related price increase to terminate the affected Service without early termination charges. SECTION 4. PERFORMANCE BY GLOBIX Globix will use industry standard efforts to: (i) maintain Globix's facilities and equipment required to deliver Service, (ii) furnish Service in accordance with the applicable Service Level Agreement ("SLA"), provided Globix has operational facilities available at the time of Client's order, regardless of whether or not Client's equipment is operational, and (iii) provide additional Service, upon request and if appropriate resources are available at Globix's standard rates. SECTION 5. GOODS 5.1 TITLE. Title to Goods sold to Client shall pass upon full payment. As security for such payment, Client hereby grants to Globix a security interest in and to any such Goods and the proceeds thereof. Title to all other Goods, equipment and/or facilities furnished by Globix, shall remain with Globix. 5.2 SHIPMENT. Client shall notify Globix and the shipping company, in writing, within two (2) business days after delivery of any defective, non-conforming or damaged Goods. Failure to do so shall constitute acceptance of any such Goods and a waiver of any claim against Globix. 5.3 RETURNS. To return Goods, Client must obtain a return material authorization from Globix's Purchasing Department. 5.4 EXCLUSIONS. Equipment provided or installed by Globix for use in connection with the Service shall not be used for any purpose other than that for which Globix provided it. In the event that Client or a third party attempts to operate or maintain any Globix-owned equipment without first obtaining Globix's written approval, Client shall pay Globix, in addition to any other remedies to which Globix is entitled, for any damage incurred, repair and/or replacement (at Globix's option) necessitated and service charges relating to the maintenance or inspection of said equipment. Globix is not responsible for the installation, maintenance, compatibility, or performance of any equipment or software not provided by Globix. If such equipment or software impairs the Service, Client remains liable for payment. If such equipment or software causes or is likely to cause hazard or service obstruction, Client shall, upon notice, remedy the situation. Globix may, at Client's request and at Globix's then-current rates, render consulting Service to remedy the difficulties caused by any of the foregoing. 5.5 GOODS AND/OR SERVICES SELECTED. (i) Globix agrees to provide and Client agrees to purchase the Goods and/or Service set forth on the attached Exhibit I and (ii) in the event Client requests Globix to perform consulting or technical Service of a specialized nature, the details, deliverables, milestone dates, fees and other pertinent information relating to such performance will be set forth on an attached, executed Statement of Work ("SOW"). In such event, Globix shall provide said Service to Client using employees or subcontractors of Globix, in Globix's sole discretion. SECTION 6. CLIENT OBLIGATIONS 6.1 CLIENT'S OBLIGATIONS. A. Client shall pay: (i) charges applicable to the Goods and/or Service (including charges incurred as a result of fraud or unauthorized use of the Service); (ii) additional fees or charges arising from supplemental Client Service requests and/or Client's usage of facilities, bandwidth and/or network capacity above and beyond Client's entitlement as set forth in the applicable SLA and/or Exhibit I; and (iii) other agreed charges. Page 1 of 5 B. Client will: (i) be solely responsible for all Content and any party's reliance thereunder and (ii) allow Globix, for the sole purpose of its performance hereunder, to copy, display, distribute, download, transmit and otherwise use the Content. C. Client shall not and shall not permit others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any of the facilities or equipment installed by Globix or its agents, except upon Globix's written consent. D. For complex web hosting Service, Client shall obtain and/or maintain in full force and effect during the Term of the applicable Exhibit I: (i) comprehensive general liability insurance in an amount not less than five ($5,000,000) million dollars per occurrence for bodily injury and property damage; (ii) employer's liability insurance in an amount not less than one ($1,000,000) million dollars per occurrence; and (iii) workers' compensation insurance in an amount not less than the statutory requirements. Client shall furnish Globix with a certificate evidencing such coverage and naming Globix as an additional insured. Client will be solely responsible for ensuring that its agents (including consultants, contractors and subcontractors) maintain separate insurance at levels no less than those required herein above. Client is solely responsible for obtaining and/or maintaining appropriate property coverage for all Client equipment located on Globix's premises. E. When Service occurs at Client's designated premises, Client shall provide: (i) space, utilities, and HVAC necessary to maintain the proper environment for the Service, (ii) a safe, hazard free, working environment complying with applicable laws and regulations, and (iii) access and cooperation as may be required for provision of Goods and Service; and (iv) shall ensure Globix's equipment remains free and clear of any liens or encumbrances. F. Client shall notify Globix of any changes to its notice address or other contact information. 6.2 CLIENT WARRANTY. Client warrants and represents that it has all necessary right, title and interest in the Content, and that it has obtained all consents, licenses, permissions and releases necessary to grant Globix the right to distribute the Content. 6.3 COMPLIANCE. Client shall comply with all applicable laws and regulations and with Globix's Policies and Procedures as may be in effect from time to time (See the Globix website -- www.Globix.com). SECTION 7. SERVICE LEVEL; DISCLAIMER OF WARRANTIES 7.1 SERVICE LEVEL. Service shall conform to the SLA attached hereto or attached to an applicable Exhibit I. 7.2 NO OTHER WARRANTY. EXCEPT FOR THE SERVICE LEVEL REFERENCED IN SECTION 7.1, SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GLOBIX EXCLUDES AND CLIENT HEREBY WAIVES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED (OTHER THAN RELATING TO TITLE OF GOODS) ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE NONINFRINGEMENT, AND TITLE. AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. GLOBIX DOES NOT WARRANT OR GUARANTY THAT THE SERVICE WILL CAUSE THE GOODS TO OPERATE WITHOUT FAULT, ERROR OR INTERRUPTION. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR GLOBIX'S FAILURE TO PROVIDE THE SERVICE LEVEL SET FORTH IN THE SLA IS TO TERMINATE THE RESPECTIVE EXHIBIT I SUBJECT TO THE TERMINATION LIABILITY, AND AS PROVIDED IN THE APPLICABLE SLA. SECTION 8. LIMITATION OF LIABILITY 8.1 LIMITATION OF LIABILITY. A. THE LIABILITY OF GLOBIX FOR DAMAGES ARISING OUT OF THE FURNISHING OF SERVICE OR ANY OTHER MATTER HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, TORTIOUS CONDUCT, ERRORS OR OTHER DEFECTS, REPRESENTATIONS, USE OF SERVICE OR ARISING OUT OF THE FAILURE TO FURNISH SERVICE, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION (INCLUDING CLIENT HARDWARE OR SOFTWARE FAILURES OR ANY OTHER DAMAGE OCCURRING AFTER THE PROVISION OF SERVICE) SHALL BE LIMITED TO THE EXTENSION OF CREDIT ALLOWANCES DUE UNDER ANY APPLICABLE SLA. THE EXTENSION OF SUCH CREDIT ALLOWANCES OR REFUNDS SHALL BE CLIENT'S SOLE REMEDY AND GLOBIX'S SOLE LIABILITY. IN NO EVENT SHALL GLOBIX'S LIABILITY EXCEED SERVICE PAYMENTS MADE BY CLIENT TO GLOBIX OVER THE PRECEEDING TWELVE (12) MONTHS. B. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST REVENUES), WHETHER CAUSED BY THE ACTS OR OMISSIONS OF A PARTY'S EMPLOYEES OR REPRESENTATIVES, CULPABLE NEGLIGENCE, OR WILLFUL MISCONDUCT REGARDLESS OF WHETHER SUCH PARTY HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES. C. GLOBIX SHALL HAVE NO OBLIGATION OR LIABILITY FOR (i) ANY RECONFIGURATION, MODIFICATION, MISUSE OR ABUSE OF GOODS OR SERVICE BY CLIENT OR ITS AGENTS AND (ii) ANY CONTENT. 8.2 BASIS OF BARGAIN AND FAILURE OF ESSENTIAL PURPOSE. Client acknowledges and agrees that Globix has set its prices and entered into this Agreement in reliance on the warranties, limitations and disclaimers set forth herein which reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss) and forms an essential basis of the bargain between the parties. SECTION 9. SUSPENSION 9.1 RIGHT TO SUSPEND. Globix may suspend access or any or all Service forthwith in the event that: A. (i) Client fails to comply with any provision of Sections 3, 6 or 11 of this Agreement or (ii) Globix is entitled to terminate this Agreement (including, without limitation, by reason of a breach, fault or omission by Client hereunder); B. such suspension is: (i) for the purpose of carrying out maintenance pursuant to this Agreement; (ii) to substitute, change, reconfigure, relocate or rearrange Service; or (iii) in accordance with an order, instruction or request of any government entity; or C. Client consumes Service in an amount that materially exceeds Client's credit limit and Client, after demand, has not provided sufficient security for payment. 9.2 NO WAIVER. Suspension shall not be a waiver of any right of termination. If Service has been suspended other than for Client's breach, Service shall be restored as soon as reasonably possible and the applicable Service charges shall be ratably abated. If Service has been suspended for any other reason and Client requests that Service be restored; Globix may restore Service after satisfaction of conditions and imposition of charges as Globix reasonably requires. SECTION 10. TERMINATION 10.1 TERMINATION FOR CAUSE. Globix may terminate this Agreement: (i) without notice upon Client's failure to pay amounts when due, after five (5) days written notice and failure to cure; (ii) for breach of a material provision of this Agreement, after fourteen (14) days written notice and failure to cure; (iii) if Globix is unable to provide Service hereunder due to Client's acts or omissions; (iv) upon any regulatory decision or governmental order requiring Globix to suspend Service(s) or which is reasonably likely to result in the loss of Globix's operating authority, upon reasonable notice; or (v) if Client files for bankruptcy or reorganization or fails to discharge an involuntary petition therefor within sixty (60) days after filing. Any termination hereunder, except under Section 10.1(iv), shall subject Client to applicable termination and other accrued charges. 10.2 TERMINATION FOR CONVENIENCE. Either party may terminate this Agreement upon thirty (30) days notice provided no Exhibits I are still in effect and amounts due Globix shall have been paid. 10.3 EARLY TERMINATION: CHARGES. If Service is terminated before the Page 2 of 5 end of the Term, Client will pay an early termination charge of seventy-five percent (75%) of its recurring charges for the remainder of the Term, except if: (i) Client terminates as a result of Globix's material breach, or (ii) Globix terminates other than by reason of Client's breach. In the event that Client fails to pay Globix all amounts owed under an Exhibit I in a timely manner, Client agrees that without notice, Globix may, without liability, take possession of any Client equipment and store it, at Client's expense, until taken in full or partial satisfaction of any lien or judgment; or liquidate the property in a commercially reasonable manner, upon notice and apply the proceeds to any amounts due under this Agreement. SECTION 11. SOFTWARE 11.1 LICENSE. If and to the extent computer software provided by Globix or its licensors is required for the use of a Service ordered by Client hereunder ("Licensed Software"), Globix shall grant or obtain for Client a nonexclusive, nontransferable, limited license to use such Licensed Software, in object code format only, and solely to the extent required to use the Service. If Globix is the licensor, Client shall in no event be entitled to claim title to or any ownership interest in any Licensed Software (or any derivations or improvements thereto), and Client shall execute any documentation reasonably required to memorialize Globix's existing and continued ownership of Licensed Software. If a third party is the licensor, Client's entitlement shall be limited solely to the license offered by said party. 11.2 RESTRICTIONS. Client shall not copy, reverse engineer, decompile, disassemble, sell, lease, license or sublicense the Software; or create, write or develop any derivative software or other software program, based on the Software. SECTION 12. CONDITION PRECEDENT CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT GLOBIX'S OBLIGATION TO PERFORM UNDER THIS AGREEMENT AND ANY EXHIBITS ENTERED INTO HEREUNDER MAY BE CONDITIONED UPON THE CONSTRUCTION AND/OR RETENTION OF OPERATIONAL FACILITIES. FACILITIES AVAILABILITY SHALL INCREASE ON AN ONGOING BASIS. IF THE FOREGOING CONDITIONS ARE NOT SATISFIED ON THE APPLICABLE EFFECTIVE DATE, THE PARTIES' OBLIGATIONS UNDER THIS AGREEMENT, ANY EXHIBITS AND THE PAYMENT OF RECURRING MONTHLY FEES SHALL BE SUSPENDED UNTIL SUCH CONDITIONS ARE SATISFIED. SECTION 13. MISCELLANEOUS 13.1 FORCE MAJEURE. Except with respect to accrued payment obligations, neither party shall be liable for any failure of performance due to causes beyond such party's reasonable control, including, but not limited to: acts of God, fire, flood or other catastrophes; any law, order, regulation, or governmental action, national emergencies, insurrections, riots or wars; unavailability of rights-of-way; or strikes or other labor difficulties not involving Globix, provided however, the affected party shall use commercially reasonable efforts to eliminate such event. 13.2 NO COMPETITIVE SERVICE. Client may not at any time, without Globix's prior written consent, permit any Globix facility to be utilized for the resale of Internet access or managed services to Globix clients. 13.3 NON-SOLICITATION. Neither party shall knowingly solicit for employment, offer employment to or employ the other party's employees during and for a period of two (2) years following termination of this Agreement. In the event of a breach of this provision the parties agree that appropriate liquidated damages shall be payment by the breaching party of one hundred (100%) percent of the new annual compensation of the employed individual. 13.4 NO LEASE. This Agreement is for Goods and/or Service only and is neither intended to nor does it constitute an agreement relating to real property. Client acknowledges and agrees that (i) it has been granted only a revocable license to use any applicable Client space and appropriate Globix facility in accordance with this Agreement, and (ii) Client has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances. 13.5 ASSIGNMENT OR TRANSFER. Neither party may transfer or assign this Agreement, or any of its rights or obligations hereunder without the other's prior written consent, which will not be unreasonably withheld. Each party shall remain liable for nonpayment by its respective assignee or transferee. Notwithstanding the foregoing, Globix may assign or transfer this Agreement without notice to a Globix affiliate or successor in interest. 13.6 NOTICE. Notice shall be in writing to the address set forth hereinabove and properly given: (i) immediately, if delivered in person, via facsimile, or electronic mail; (ii) after one (1) day, if sent by overnight courier; or (iii) after three (3) days, when sent by first class U.S. Mail. 13.7 MARKETING. Client agrees that Globix may refer to Client and may briefly describe Client's business in Globix's marketing materials and on the Globix website. Client hereby grants Globix a limited license to use any Client trade names and trademarks only for this purpose. 13.8 INDEMNIFICATION BY CLIENT. Client shall indemnify, defend and hold harmless Globix, its officers, employees, subcontractors, representatives, landlords and/or mortgagees from claims, loss, damage, expense (including reasonable attorney's fees and court costs), liability (including liability for infringement of a third party's intellectual property rights), personal injury, death or property damage caused by or arising from: A. the content of any communication transmitted via the Service or maintained in connection with any Goods provided hereunder; B. the acts or omissions of Client or a third party, including their respective employees or representatives, in connection with the Goods or Service provided hereunder. 13.9 INDEMNIFICATION BY GLOBIX. Globix shall indemnify, defend and hold harmless Client from claims, loss, damage, expense (including reasonable attorney's fees and court costs), or liability (including liability for infringement of a third party's intellectual property rights) for property damage or personal injury to the extent that such claims arise out of or are caused by Globix's culpable negligence or willful misconduct. 13.10 INDEMNIFICATION PROCEDURE. The indemnification obligations of subsections 13.8 and 13.9 are conditioned upon: A. prompt notice of the claim (to the extent known by the indemnified party) to the indemnifying party; B. control of the defense of the claim by the indemnifying party; and C. assistance by the indemnified party in the defense at the indemnifying party's expense. 13.11 RELATIONSHIP OF PARTIES. The parties are independent contractors and this Agreement does not establish any partnership, joint venture, employment, franchise or agency relationship between them. 13.12 SEVERABILITY. Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity and maintain the parties' original intent. 13.13 NO WAIVER; ALL RIGHTS CUMULATIVE. Failure to enforce any provision of this Agreement shall not be construed as a waiver. The parties' rights shall be deemed cumulative, such that the exercise of one shall not preclude the exercise of others. 13.14 THIRD PARTY BENEFICIARIES. The parties do not intend any provision of this Agreement to be enforceable by or to benefit any third party. 13.15 PERMISSIBLE DOWNGRADES. Client may, upon thirty (30) days prior written notice, elect to downgrade its Committed Information Rate (CIR), subject to CIR minimums for each Service facility. Upon such election, Client may not further downgrade for the succeeding twelve (12) months, and any termination charge within six (6) months of such downgrade will be based upon the CIR in effect immediately prior to such downgrade. Page 3 of 5 13.15 Intellectual Property Rights. Globix shall remain the sole owner of and retain all right, title and interest in any Service, technical information and/or intellectual property rights (IPR) provided to Client hereunder, including, without limitation, all trademark, trade names, service marks, copyrights, computer programs, general utility programs, software, methodology, databases, specifications, systems designs, applications, enhancements, documentation, manuals, know-how, formulas, hardware, audio/visual equipment, tools, libraries, discoveries, inventions, techniques, writing, designs and other IPR either used or developed by Globix or its agents in connection with the provision of Service hereunder ("Globix Technology"). Any Globix Technology will not be work for hire. In return for payment of all fees and charges. Globix grants to Client a royalty free, non-exclusive, non-transferable, non-assignable license to use any IPR provided with Service hereunder. Globix shall be free to provide similar IPR to other parties and shall retain the right to unrestricted use of any data, any and all related concepts, know-how, techniques or IPR either acquired or developed as a result of this Agreement. 13.17 SUPPLEMENTAL TERMS. The terms contained in any Exhibit I, SLA, SOW or other related documents are intended to supplement this Agreement's terms. 13.18 HEADINGS. The titles and headings of the sections and subsections in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of this Agreement's provisions. 13.19 SURVIVAL. The following sections of this Agreement shall survive termination. Section 3, Section 5, Section 7, Section 8, Section 10.3 and Section 13. 13.20 GOVERNING LAW & JURISDICTION. This Agreement shall be governed by the laws of the State of New York applicable to contracts to be fully performed therein. The jurisdiction and venue for actions related to this Agreement shall be the State and Federal Courts located in New York County, New York. Provided, that Globix may bring an action in such Courts, or in the jurisdiction where Client's principal place of business is located. 13.21 ENTIRE UNDERSTANDING. This Agreement and any Exhibit I, SLA, SOW or other related documents executed hereunder, constitute the parties' entire understanding and supercede any oral representations, understandings and offers related to the subject matter hereof. This Agreement can be modified in writing signed by both parties. IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives as of the date first above written. GLOBIX CORPORATION CLIENT: Digital Impact ------------------------ By: /s/ Mike Moskowitz By: /s/ Stephen M. Crusenberry ----------------------- ---------------------------- Name: Mike Moskowitz Name: Stephen M. Crusenberry --------------------- -------------------------- Title: GM - Santa Clara Title: VP, Operations & IT -------------------- ------------------------- Page 4 of 5 EXHIBIT A GLOBIX STANDARD SERVICE LEVEL AGREEMENT (vA2.01) NOTICE TO ALL CLIENTS: TO QUALIFY FOR THE BELOW SET FORTH ENTITLEMENTS CLIENT MUST FULLY COMPLETE ALL GLOBIX REQUIRED CLIENT CONTACT INFORMATION FORMS. 1. NETWORK AVAILABILITY AND UPTIME. Globix guarantees one hundred (100%) percent Backbone Network Uptime with at least ninety-nine (99%) percent sustained Packet Throughput (PT). To determine compliance, measurements are taken on a continual basis on the Globix U.S. Domestic Backbone Network between various combinations of any two of our Points of Presence (POPs). A. Network availability refers to the ability of a Client to access the Globix Backbone Network. B. Globix measures latency on the Globix Backbone Network. These measurements are taken as round trip times between core routers within the Globix POP facilities in the continental United States. Globix guarantees an average round trip latency of not more than one hundred and twenty (120ms) milliseconds. If this standard is not met, Globix will credit the Client as detailed in Section 6. C. Network Unavailability is defined as a packet loss in excess of fifty (50%) percent for fifteen (15) consecutive minutes or more or one that exceeds one (1%) percent for two (2) or more consecutive hours on the Globix Backbone Network. Periodically, Globix will upgrade or find the need to repair or replace vital network equipment which interruptions are foreseeable events common to all First Tier network providers. Neither these maintenance events, necessary for providing a consistently high level of service, nor client caused outages or disruptions beyond Globix's control are considered "Network Unavailability" as covered by this SLA. D. Clients must report Network Unavailability of longer than fifteen (15) consecutive minutes or the aforementioned packet loss to Globix Client Support Center within forty-eight (48) hours of the event. If the event reported by the Client is confirmed by Globix Customer Service, the Client will receive a pro-rated service credit as detailed in Section 6. However, the total of any credits granted for any twenty-four (24) hour period may not exceed one (1) full day's pro-rated fee. E. Network Unavailability for Point to Point Leased Line Dedicated Access Clients caused by a failure due to the Local Exchange Center (LEC) is covered by this SLA for any service with a Globix ordered local loop circuit. Globix will use industry standard efforts to remedy any circuit failures when working with the LEC. The pro-rata discount for this type of outage is limited to Internet Port access fees only and will be applied to Client's invoice as described in Section 6. F. Network Unavailability for Frame Relay and Digital Subscriber Link Service caused by a failure due the to LEC Frame Relay Network or LEC (all circuits, is not covered by this SLA and Globix will not be liable for same. 2. HARDWARE AND SOFTWARE MONITORING AND UPTIME. Equipment not owned and operated by Globix is not directly monitored. However, indirect monitoring is provided in the form of a standard Ping Test performed every three hundred (300) seconds to one (1) IP address per Client service account. In the event that two (2) consecutive Ping Tests fail, Globix will notify Client in accordance with the standard notification policy detailed in Section 3. However, Globix will not take any corrective action unless a Maintenance Agreement between the parties is in effect. 3. NOTIFICATION OF OUTAGES AND SERVICE INTERRUPTION EVENTS. Fifteen (15) minutes after an outage is officially recorded, which occurs when the second Ping Test fails, Globix will contact Client's designated representative by e-mail, phone, or pager. Clients reporting service interruption events or outages of any kind may use the "Single Point of Contact" local support telephone number for access to the twenty-four (24) hour Support Group. 4. ACCESS TO STATISTICS. Client will have access to a public web page detailing Globix Backbone Network availability and latency statistics. Clients may enter separate agreements for additional statistics accessible through private web pages with Client specific usage statistics as detailed in that agreement. 5. INSTALLATION INTERVAL GUARANTEE. If Globix is unable to meet the standard installation interval for any Service, and Client has been billed for the full installation fee (i.e., not discounted), Globix will credit Client's account with fifty (50%) percent thereof excluding any local loop installation charges. Since Client may choose to purchase one of several levels of expedited Installation Service, if Globix fails to meet the purchased installation deadline, Globix will discount the expedite fee to the cost associated with whichever interval it meets. For example, if Client orders a "Rush" installation package and Globix meets the "Standard" interval, Globix will refund the difference between the "Rush" and "Standard" install fee. In order to qualify for this installation guarantee, Client's account must be in good standing. All these entitlements are subject to Globix's performance not being precluded by Client created or force majeure events. 6. WARRANTIES AND DISCLAIMERS BY GLOBIX. Service Level Warranty. In the event Client experiences any of the following and Globix determines in its reasonable judgment that such inability was caused by Globix's failure to provide Internet Data Center Services for reasons within Globix's reasonable control and not as a result of any action or inaction of Client or any third parties (including Client equipment and/or third party equipment), Globix will, upon Client's request in accordance with Section 6C., credit Client's account as described below: A. Inability to Access the Internet (Downtime). If Client is unable to transmit and receive information from Globix's Internet Data Centers (i.e., Globix's LAN and WAN) to other portions of the Internet because Globix failed to provide Internet Data Center Services for more than fifteen (15) consecutive minutes, Globix will credit Client's account the pro-rata Globix connectivity charges (i.e., all bandwidth related charges) for one (1) day of Service, up to an aggregate maximum credit of connectivity charges for seven (7) days of Service in any one calendar (1) month. Globix's scheduled maintenance of the Internet Data Centers and Internet Data Center Services, as described in the Policies and Procedures, shall not be deemed to be a failure of Globix to provide Internet Data Center Services. Pro-rata daily credits are limited to one full day's credit per twenty-four (24) hour Service period. B. Packet Loss and Latency. While Globix does not proactively monitor the packet loss or transmission latency of specific Clients, Globix does monitor the packet loss and transmission latency within its LAN and WAN. If Globix discovers (either from its own efforts or after being notified by Client) that Client is experiencing packet loss in excess of the level set by the SLA purchased by Client ("Excess Packet Loss") or transmission latency in excess of one hundred and twenty (120ms) milliseconds round trip time (based on Globix's measurements) between any two POPs within Globix's U.S. network (collectively, "Excess Latency", and with Excess Packet Loss "Excess Packet Loss/Latency"), and Client notifies Globix (or confirms that Globix has notified Client), Globix will take all actions necessary to determine the source of the Excess Packet Loss/Latency. (i) Remedy of Excess Packet Loss/Latency. If the excess Packet Loss/Latency remedy is within the sole control of Globix, Globix will remedy the Excess Packet Loss/Latency within two (2) hours of determining the source of the Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from outside of the Globix LAN or WAN, Globix will notify Client and will use industry standard efforts to notify the party(ies) responsible for the source and cooperate with it/them to resolve the problem as soon as possible. (ii) Failure to Determine Source and/or Resolve Problem. If Globix is unable to determine the source of and remedy the Excess Packet Loss/Latency within the time periods described above (where Globix was solely in control of the source), Globix will credit Client's account the pro-rata Globix connectivity charges for one (1) day of Service for every two (2) hours after the time periods described above that it takes Globix to resolve the problem, up to an aggregate maximum credit of connectivity charges for seven (7) days of Service in any one (1) month. C. NOTE: CLIENT MUST REQUEST CREDIT. To receive any applicable credits, Client must notify Globix Customer Service within two (2) business days from the time Client becomes eligible to receive a credit or forfeit its right to receive a credit. Globix will contact Client to review the status of the credit request and to determine the applicable credit, if any, due Client. D. Remedies Not Cumulative - Maximum Credit. In the event that Client is entitled to multiple credits arising from the same event, whether under this SLA or any other SLAs, such credits shall not be cumulative. Client shall be entitled to receive only the maximum single credit available for such event. In no event will Globix be required to credit Client in any one (1) calendar month Globix connectivity charges in excess of seven (7) days of Service. A credit shall be applied only to the month in which the incident took place. Client shall not be eligible to receive any credits for periods during which Client received any Service free of charge. E. Termination Option for Chronic Problems. If, in any single calendar month, Client would be able to receive credits totaling fifteen (15) or more days (but for the limitation in subparagraph D above) resulting from three (3) or more events during such calendar month or, if any single event entitling Client to credits under subparagraph A exists for a period of eight (8) consecutive hours, then, Client may terminate the applicable Service for cause and without termination fee by notifying Globix within five (5) days following the end of such calendar month. Termination will be effective thirty (30) days after receipt of such notice by Globix. Page 5 of 5 [GLOBIX LOGO] GLOBIX CORPORATION MASTER SERVICE AGREEMENT ADDENDUM - -------------------------------------------------------------------------------- The changes, deletions and/or additions in this addendum shall apply to the Master Service Agreement dated September 25, 2002 by and between the parties hereto and are referenced by paragraph more specifically as follows: 1. In the DEFINITIONS section for the definition of Goods at the end thereof insert "by Globix." 2. In Section 3.2 on the third line thereof after "unpaid" insert "and undisputed" and commencing at the end of the penultimate line to the end delete "and Client shall pay all collection costs including reasonable attorneys fees." 3. In Section 3.5 on the second and third lines thereof after "tariff" insert "and" and delete "or similar circumstances"; on the third and fourth lines thereof delete "thirty (30)" and insert "one hundred and twenty (120)"; at the end thereof insert "provided, however, after the first thirty (30) days Client shall pay any such increased price"; and add: "Provided, further, Globix shall provided reasonable evidence of the cost at time of contract and any price increase allowing Client to audit same.". 4. In Section 5.1 on the first and second lines thereof delete "As security for such payment" and insert "As security for payment of any Goods sold by Globix to Client,". 5. In Section 6.1A(ii) on the second line thereof after "requests" insert "provided that Client has approved in writing of such additional fees or charges". 6. In Section 6.1D on the ninth and tenth lines thereof delete "Client shall be solely responsible" and insert "Globix shall have no responsibility" and at the end of Section 6.1D add: "Globix will maintain insurance with the same levels or higher than stated above.". 7. In Section 6.2 on the second line thereof after "Content" delete ", and that" and insert "or". 8. In Section 6.3 at the beginning thereof after the title insert "A"; on the second line thereof after "Procedures" insert "(Currently set forth under two headings as follows: (i) Facilities Policies -- all US Versions: Preparation and Installation of Client Equipment, Physical Access Policy, Internet Data Center House Rules, Property Removal Policy, Fire Emergency and Evacuation Policy and Security System and (ii) Technical Documents -- all US Versions: Network Maintenance Windows, Acceptable Use Policy, IP Address Request, Bandwidth Statistics Reporting, Online Customer Support Center, E-Mail Notification of Service Requests, Border Gateway Protocol, Service Level Management: Escalation Policy, Peering Policy, Billing Overview, Billing, Billing Credits and Billing -- Sample Invoices; on the third line after the second "time" insert", provided, however, in the event Globix materially changes its policies and procedures, which changes have a material impact on Client's use of the Service under the prior policies and procedures the parties shall negotiate a mutually acceptable resolution to any inconsistencies; and at the end of Section 6.3 add the following two subsections B. "Client previously was paying $6,000/mo for SCH fees based on threshold of 1,000 complaints/mo. In that Client's complaint experience based on its current business model has been significantly lower and in consideration of its renewal of its Service for a twenty-four (24) month term, Globix hereby waives any SCH fees providing Client's complaint level remains reasonably consistent with past experience. In the event (i) its complaint level exceeds 1,000/mo and Client's email volume to complaint ratio exceeds 1 Mil:350 or (ii) if Client changes its business model and such complaints are still in accordance with the Globix Acceptable Use Program, Globix shall have the right to assert its then current SCH fee program. C. "Client shall have 48 hours from the time that notice of a violation of the "Policy on Spam" section of the Globix Acceptable Use Policy ("AUP") is sent, to respond to and cure such violation in order to prevent future violations, and when such violation(s) result in the number of complaints referenced in Section 6.3B(i) or (ii) above, Globix may invoke its rights under the AUP. This notice period shall not apply to any violation which, at the time of the incident, (i) is a violation of any law, rule or regulation, whether Federal, State, local or any other jurisdiction; (ii) if the 48 hour cure notice has a materially damaging impact on Globix's business, in the reasonable discretion of Globix; or (iii) is contrary to any order or direction of a governmental agency." 9. In Section 7.1 at the end thereof add "Globix also represents and warrants that it will maintain (i) the level of physical security at its facility at least at current levels in all material respects; (ii) the air temperature inside Client's enclosure at or below 72 degrees F to be measured at the perforated floor tile level - failing to do so with resultant temperatures of 72-75 degrees F for an hour or more in a day will entitle Client to one (1) day service credit and temperature above 75 degrees F for an hour or more in a day will entitle Client to terminate the applicable Service without termination fees on sixty (60) days written notice and payment of accrued payment obligations provided said notice is given within thirty (30) days of the incident; (iii) sufficient airflow such that if airflow is less than 325 cubic feet per minute per one (1) unrestricted perforated floor tile for an hour or more in a day will entitle Client to terminate the applicable Service without termination fees on sixty (60) days written notice and payment of accrued payment obligations provided said notice is given within thirty (30) days of the incident; and (iv), when Client's cage complies with the "Hot Air/Cool Air" Aisle conventions set forth on the attached diagram entitled Digital Impact Future Cage Redesign, hereby incorporated by reference herein, Globix's obligation in (ii) above will be modified with respect to the temperature measurement point from the floor tiles to the server inputs. 10. In Section 7.2 on the penultimate line thereof delete "subject to the termination liability". 11. In Section 8.1A at the beginning thereof insert "EXCEPT FOR LIABILITIES ARISING FROM GLOBIX'S INDEMNIFICATION OBLIGATIONS HEREIN OR GLOBIX'S WILLFUL MISCONDUCT,"; on the fourth line delete "TORTIOUS CONDUCT" and on the thirteenth line before "IN NO EVENT" insert "EXCEPT FOR LIABILITIES ARISING FROM GLOBIX'S INDEMNIFICATION OBLIGATIONS HEREIN OR GLOBIX'S WILLFUL MISCONDUCT,". 12. In Section 9.1A(i) at the end thereof add "and has not cured such failure to comply within thirty (30) days of receiving written notice from Globix describing such failure". - 2 - 13. In Section 9.1B on the fourth line, after "governmental entity" add "; provided that, whenever possible and other than in an emergency, Globix shall notify Client at least twenty-four (24) hours prior to suspending Service pursuant to this Section 9.1B and try to accommodate Client's requests in scheduling such suspension of Service." 14. In Section 10.1 at the end of the caption insert "A."; in (i) on the second line thereof delete "five (5)" and insert "thirty (30)"; in (ii) on the second line delete "fourteen (14)" and insert "thirty (30)"; in (iii) at the end thereof add "and Client refuses to pay its full monthly recurring fees"; in (iv) the end insert "provided that Globix shall provide written notice as soon as it knows there is a likelihood that any such regulatory decision or governmental order will occur, and in any event, shall provide at least one hundred twenty (120) days written notice if possible; and create a new subsection B as follows: "B. Client may terminate this Agreement if Globix files for bankruptcy, reorganization or fails to discharge an involuntary petition therefor within sixty (60) days after filing of any such event. Any termination hereunder shall relieve Client from any termination charges provided however, accrued payment obligations are due and payable prior to any such termination." 15. In Section 10.2 on the second line thereof delete "thirty (30)" and insert "ninety (90)". 16. In Section 10.3 on the second and third lines thereof delete "seventy-five percent (75%)" and insert "fifty percent (50%)"; on the sixth line after "all" insert "undisputed"; and on the seventh line delete "without" and insert "with thirty (30) days advance written" and after "notice" insert "and failure to cure" 17. In Section 13.2 on the third line thereof, delete "or managed services". 18. In Section 13.3 on the third line, delete "two (2) years" and replace with "one (1) year". 19. In Section 13.5 delete the last sentence and insert: "Notwithstanding the foregoing, either party may assign or transfer this interest without notice to an affiliate of said party. In the case of a merger, sale of assets, consolidation, stock purchase, or similar transaction, the party undergoing such transaction shall provide notice to the other party at least ninety (90) days prior to the consummation of such transaction. During such period, the other party shall have the right to terminate this Agreement if any such successor in interest would reasonably be detrimental to the material operation of said other party's business, without penalty or early termination fees by providing written notice of such intent to terminate and paying any accrued payment obligations." 20. In Section 13.7 on the third line thereof after "website" insert "with Client's prior written consent". 21. In Section 13.8 on the fifth line thereof, delete "(including liability for infringement of a third party's intellectual property rights) for" and insert "arising from" (i) the infringement of a third party copyright, patent, trademark, trade secret or other intellectual property right in connection with the Service or Goods provided by Globix, or (ii)". 22. In Section 13.9 on the last line thereof, delete the word "culpable". -3- 23. In Section 13.20 on the second line thereof delete "New York" and insert "California" and on the fourth and fifth lines delete "New York County, New York" and insert "Santa Clara County, CA". EXHIBIT A 1. In Section 6A, Section 6B(ii) and Section 6D where the entitlement to credits is limited to seven (7) days, delete same and insert "thirty (30) days". 2. In Section 6E on the last line thereof delete "thirty (30)" and insert "up to one hundred and twenty (120)". CREDIT APPLICATION 1. In any instance where the Credit Extension Terms and Conditions are contrary to either the Agreement or this Addendum, same shall be deemed amended to be consistent with the Agreement and/or this Addendum. GUARANTY OF PAYMENT 1. This document shall be deemed inapplicable to Client. Client shall be entitled to either place a large "X" over the entire page or leave it blank, at its option. In all other respects the Master Service Agreement shall be in full force and effect. IN WITNESS WHEREOF the parties hereto have executed this Addendum by their duly authorized representatives effective as of the latest of the two dates below. Globix Corporation Digital Impact, Inc. 139 Centre Street 177 Bovet Road New York, NY 10013 San Mateo, CA 94402 Date: 9/27/02 Date: 9/25/02 ------------------------ -------------------------- By /s/ Michael J. Moskowitz By /s/ Steve Crusenberry - ----------------------------- ------------------------------- Michael J. Moskowitz Steve Crusenberry Vice President & Vice President, Operations & IT General Manager -4-