The URL can be used to link to this page

Home My WebLink About40-02 RESOLUTION• • RESOLUTION NO.40-02 A RESOLUTION TO APPROVE A CONTRACT WITH SOUTHWESTERN BELL COMMUNICATIONS FOR DEDICATED WEB -SITE HOSTING SERVICES FOR THREE YEARS IN AN AMOUNT NOT TO EXCEED $21,408.00 (PLUS TAX) ANNUALLY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves the attached Contracts and Statement of Work for City of Fayetteville with Southwestern Bell Communications in an amount of not to exceed $21,408.00 (plus tax) annually for three years and authorizes the Mayor to execute said contract. PASSED and APPROVED this the 5th day of March, 2002. APPROVED: By • 1b. Woodruff, City Cl • NAME OF FILE: CROSS REFERENCE: Resolution No. 40-02 • 03/05/02 Resolution No. 40-02 Contract with Southwestern Bell Communications for dedicated Web - Site Hosting Services for three (3) years Appendix A (Contract)(SBC Communications) Appendix B (RFP Submission)(SBC Communications) Addendum 3. (Platinum Internet Data Center Infrastructure) Appendix A. (Proposer Guarantees) Appendix B. (Proposer Warranties) Appendix D. (Schedule of Fees and Expenses)(Web Hosting) 02/12/02 Memo to Fayetteville City Council thru Mayor Coody and Ted H. Webber, Administrative Services Director, from Budget and Research, regarding Web Hosting Contract - Southwestern Bell Communications 03/05/02 Staff Review Form 03/07/02 Memo to Kevin Springer, Budget and Research, from Heather Woodruff, City Clerk NOTES: Scyrep E -Services, Inc. (45. zid-o OfflWNAL z Contracts and Statement of Work for: City of Fayetteville Dedicated Hosting Last Updated - February 20, 2002 Prepared by - Brad Shepard, Data Solutions Manager a c m Services Summary This is a brief checklist of the services and pricing included in this contract. Please see the Customer Service Agreement(s) and the Statement of Work for details. Instructions: Mark choices with an "X" (or use a number If more than one of the same server is being ordered — and please note in special instructions as well) Package Selection (Mark selection with an "X") Compaq Sun $ 1,484.00 Start Up Pack DL 320 / Tape Back Up A10 / NetScreen 5XP S -Corp Netra t1 Recurring Fees Biz Pack DL 360 / Tape Back Up A10 / NetScreen 5XP S -Pro E220R Professional / Consulting Services Performance Pack DL 380 / Tape Back Up A10 / NetScreen 5XP X Tape Back Up (Do not fill in if Start Up Pack, Biz Pack or Performance Pack is selected) C -Lite DL 320 Managed Firewall (Do not fill in if Start Up Pack Biz Pack or Performance Pack is selected) C -Corp DL 360 X C -Pro DL 380 (DAS) Options and Upgrades Selection (Mark selection with an "X") Fees and Charges Summary (Total of all services ordered) Non -Recurring Set-up Fees IP Address Upgrade (Note: All servers will be assigned one IP address as a default — the second or additional IP addresses will require filling out the IP Address Management Guidelines form) $ 1,484.00 RAM Upgrade Monthly Hard Drive Upgrade Recurring Fees Processor Upgrade $ 1,484.00 Professional / Consulting Services Total ($ USD) Monitoring Upgrade X Tape Back Up (Do not fill in if Start Up Pack, Biz Pack or Performance Pack is selected) X Managed Firewall (Do not fill in if Start Up Pack Biz Pack or Performance Pack is selected) Load Balancing (Note: two or more servers are required for the Load Balancing upgrade) Storage (DAS) Fees and Charges Summary (Total of all services ordered) Non -Recurring Set-up Fees Invoice Billing $ 1,484.00 Credit Card of Credit Card — client to fill Monthly Form) Recurring Fees 36 Month Contract $ 1,484.00 Total ($ USD) $ 1,484.00 Payment Method X Invoice Billing Credit Card of Credit Card — client to fill out the Credit Card Information Form) Dedicated Hosting Services provided by SBC E -Services, Inc Sales Instructions (1) (2) Dedicated Hosting Statement of Work (SOW) A Statement of Work (SOW) is REOUIRED for EACH server. Attach all SOW to the package. Fill in ALL required fields Company City of Fayetteville Domain www.accessfavetteville.org 13 Digit BTN 1 Client Technical or Primary Contact (Required Information) Contact Name Jason Herron Title Site Developer Street Address Street Address 4058 N. College Phone (501) 582-5100 Mobile Rm./Ste. Rm./Ste. Floor #2 Pager City City Fayetteville Fax State State AR ZIP 72703 Other Country Country USA e-mail Cason@ifworld.com Client Secondary Contact (Optional Information) Contact Name Kevin Springer Title Purchasing Street Address 113 W Mountain Street Phone Mobile Mobile Rm./Ste. Rm./Ste. Pager Pager City City Fax Fax State State ZIP ZIP Other Country Country e-mail e-mail Section 2. Client Billing Contact (Required Information) Contact Name Kevin Springer Title Purchasing Billing Address 113 W Mountain Street Phone (501) 575-8256 Mobile Rm./Ste. Pager City Fayetteville Fax (501) 575-8257 State AR ZIP 72701 Country USA e-mail kspringer@ci. ayetteville.ar.us Dedicated Hosting Services provided by SBC E -Services, Inc Section 3. SBC Contact Information SBC Sales Contact Contact Name Brad Shepard Title DSM Street Address 138 N. East Avenue Phone (214) 576-7228 (501) 442-1938 Mobile 7.4002 Rm./Ste. Room 100 Pager 800-253-9254 City Fayetteville Fax TX (501) 442-3388 State AR ZIP 72701 Other mn5972@txmail.sbc.com --� e-mail Bs7892@sbc.com SBC Sales Code 80 SBC Design Engineer / IP Specialist, or other Technical Contact Contact Name Matt Nowicki Title Web Hosting Street Address 2600 N. Central Expressway Phone (214) 576-7228 Mobile Rm./Ste. 7.4002 Pager City Richardson Fax State TX ZIP 75080 Other f �r e-mail mn5972@txmail.sbc.com --� SBC Sales Code 'SBC Region (Region this customer is in) REQUIRED INFORMATION X SWBT — Southwestern Bell Missouri, Oklahoma, Kansas, Arkansas Texas H PB — Pacific Bell California and Nevada AIT—Ameritech Illinois Indiana, Michi•an Ohio Wisconsin SNET — Southern New En • land Tele • hone Connecticut .00R — Out of Re • ion All other U.S. States f �r INTL — International --� Dedicated Hosting Services provided by SBC E -Services, Inc 1 (Mark Section 4. Services Summary Choices with an "X") Operat ng System J Option 1: Packaged Packaged Solutions Firewall at a discounted Addendums with Wnrlo x2000 0 Sun Solaris 0 Linux 0 I X 1 1 Solutions (Compaq ONLY). These packages include Tape Back Up A10 and a NetScreen 5XP price. If this option is selected, be sure to include the Tape Back Up and Firewall the Dedicated Hosting Customer Service Agreement. Order Type Solution Type Term Length X r— New (N) Compaq Start Up Pack DL 320 10 GB of Transfer Tape Back Up A10 NetScreen 5XP 1 Year Change (C) Biz Pack DL 380 40 GB of Transfer Tape Back Up A10 NetScreen 5XP 2 Year Disconnect (D) X Performance Pack DL 380 80 GB of Transfer Tape Back Up A10 NetScreen 5XP X 3 Year Other Option 2: Server Solutions a la carte servers) Server Solutions (Compaq or Sun). These packages are SERVERS ONLY. If this option is selected, be sure to include the Dedicated Hosting Customer Service Agreement. The Tape Back Up and Firewall Addendums should be removed. Order Type Solution Type Term Length Inc New (N) Compaq Sun C -Lite DL 320 10 GB of Transfer S -Corp Netra t1 40 GB of Transfer 1 Year Dedicated Hosting Services provided by SBC E -Services, Change (C) C-Corp DL 360 40 GB of Transfer S-Pro E220R 80 GB of Transfer 2 Year Disconnect (D) C-Pro DL 380 80 GB of Transfer 3 Year Other Section 5. Optional Server Upgrades (Mark with an "X" and/or Mark Hard Drives with quantity) Compaq Server Options Available for both Compaq Packaged Solutions and Compaq Server Solutions servers. DL 320 Options DL 360 Options DL 380 Options Total IP Address Total IP Address Total IP Address 16 16 16 32 32 32 64 64 64 128 128 128 256 256 256 Total RAM Total RAM Total RAM 256 MB SDRAM 512 MB SDRAM 512 MB SDRAM i 1024 MB SDRAM 1024 MB SDRAM 1024 MB SDRAM 2048 MB SDRAM 2048 MB SDRAM 2048 MB SDRAM 4096 MB SDRAM 4096 MB SDRAM Additional Hard Drive Additional Hard Drive Additional Hard Drive 9.1 GB SCSI 10K 9.1 GB SCSI 10K 18 GB SCSI 10K 18 GB SCSI 10K 18 GB SCSI 10K 36 GB SCSI 10K 36 GB SCSI 10K 36 GB SCSI 10K Additional Processor Additional Processor 1.0 GHz Pentium III 1.0 GHz Pentium III Sun Server Options Netra t1 Options E220R Total IP Address Total IP Address 16 16 32 32 64 64 128 128 256 256 Total RAM 512 MB 1024 MB 2048 MB Additional Hard Drive 36 GB SCSI Dedicated Hosting Services provided by SBC E-Services, Inc Section 6. Professional / Consulting Services Summary (use additional pages if needed) Consulting Service Brief Description Setup Fee ($ USD) Monthly Fee ($ Hourly Fee ($ Per Server Fee USD) USD) ($USD) Monitoring Upgrade N/A $ $ $ $ N/A $ $ 150.00 $ N/A $ Set-up - Upgrades $ Section 7. Optional Enhanced Services Summary (attach addendums for each as needed) NOTE: If Start Up Pack Biz Pack or Performance Pack is selected, DO NOT fill in the Tape Back Up and Firewall sec ions of this table. Service Brief Description Setup Fee ($ USD) Monthly Fee ($ USD) 1 Monitoring Upgrade 1 $ $ 1,069.00 $ Tape Back Up Qualstar, A10 Tape Backup, Veritas software, weekly backup for 10GB $ 415.00 $ 150.00 $ Approved Discount Dollar Amount $ 150.00 Set-up - Upgrades Managed Firewall NetScreen 5XP Managed Firewall Service, ScreenOS 2.6 Software, ($ USD) $ 265.00 $ $ 265.00 Balancing Load $ Approved Discount Dollar Amount $ $ $ Storage (DAS) $ $ 1,484.00 $ Section 8. Non -Recurring Pricing Summary (Required Information) Non -Recurring Set-up Fees Units NRC ($ USD) 1 Set-up - Package or Server 1 $ 1,069.00 Set-up - Server Options $ $ 415.00 Set-up - Consulting Services $ Approved Discount Dollar Amount $ Set-up - Upgrades (firewall, etc) Total ($ USD) $ Estimated One - Time Consulting Fees $ Approved Discount Dollar Amount $ Total ($ USD) $ 1,484.00 Section 9. Recurring Pricing Summary (Required Information) Monthly -Recurring Fees Units Recurring Fee ($ USD) Monthly Fee - Package or Server 1 $ 1,069.00 Monthly Fee - Server Options $ 415.00 Monthly Fee - Consulting Services $ Monthly Fee - Upgrades (firewall, etc) $ Approved Discount Dollar Amount $ Total ($ USD) $ 1,484.00 Dedicated Hosting Services provided by SBC E -Services, Inc .fit• v'_ r IMPORTANT NOTES*" The pricing in sections 8 and 9 reflects the configuration and features you selected as of the date on this Statement of Work. Variables you choose after filling out this Statement of Work, such Professional Services/Consulting, hardware options, additional services and Usage Overages may affect your fees. Professional Services/Consulting, hardware options and additional services may be added to your account and are handled on a per customer basis. Please discuss Professional Services/Consulting, hardware options and additional services with your Account Manager. Overage charges include but are not limited to (1) Data Transfer Above Limit at S5 per GB for each GB of data transfer over the included allotment (2) Tape Back Up overages and consulting - see Tape Back Up Addendum for pricing and (3) Firewall overages and consulting - see Firewall Addendum for pricing. Special Instructions SBC will register domain name(s) on behalf of client if requested. Make request in this "Special Instructions" box. A registration fee will apply. Section 10. Statement of Work Acceptance (Required Information) Client Signature The Client, by signing below, indicates that the Statement of Work has been read and the terms have been accepted. This Statement of Work is subject to the terms and conditions of the Dedicated Hosting Customer Service Agreement. Dedicated Hosting Services provided by SBC E -Services, Inc Order Completion Date' 'Order Completion date supplied by SBC Client Accept Signature a de6V----- For Internal Use a� D = Account Manager � . Name .1/1,0.1/1,0(. /� oo,.by Account Manager Ph / 6 rS if- / hZD Date ✓ /0g _ Date Recd 2 _' op (crZ Dedicated Hosting Services provided by SBC E -Services, Inc IP Address Management Guidelines As a responsible member of the INTERNET community, SBC must abide by the policies set forth by ICANN and ARIN in regard to address allocation to customers. The address space that is currently unassigned in IPv4 space (32-bit addressing) is becoming constricted, and measures to ensure the future viability of the Internet may cause conflicts with customer network planning unless responsible and efficient usage of subnet space is agreed upon between providers and their customer base. In cooperation with our customers, SBC must plan to make the most efficient use of allocated network space so that we can continue to route traffic and obtain new network address space when requested. SBC encourages and supports our customers in the growth of their networks, and we will assign addresses to customers who genuinely require the address space for their networks. However, we must examine all requests for address space with care to validate the use of the IP numbers that are allocated. Background ARIN allocates blocks of IP addresses to Internet Service Providers (ISPs) for the purpose of reassigning that space to their customers. ARIN takes guidance from allocation policies and procedures set forth in RFC 2050. ISPs are required to use a utilization efficiency criterion in providing address space to their customers. To this end, ISPs should have documented justification available for each allocation. ARIN may request this justification at any time. If the justification is not provided, this may impact future receipt of allocations. In extreme cases, existing allocations may be affected. Because the number of available IP addresses on the Internet is limited, many factors must be considered in the determination of address space assignment. Utilization rate of address space will be a key factor, but not the only factor, in network number assignment. Responsibility and Authority The assignment and management of IP addresses is the responsibility of the SBC E -Services. SBC E -Services will be charged with obtaining addresses (referred to as blocks) from the organization(s) who dispense them to backbone service providers. The governing organization is the American Registry for Internet Numbers (ARIN) in North and South America. The Sales and Sales Engineering Departments will be responsible for providing address justification as part of a customer's order. Once the order is turned over to the provisioning group, provisioning will work with the customer's technical representative on an ongoing basis to that the IP addresses fulfill their business requirements. SBC E -Services will conduct audits of all address blocks, including subnets provided to customers, to ensure efficient usage of assigned addresses. This auditing will be conducted frequently to ensure effective usage of currently assigned blocks and the availability of new blocks. The auditing will be conducted through a variety of methods including, but not limited to, ping sweeps, reverse DNS lookups, and periodic reviews of customer IP justification forms. The detailed results of these audits will be made available upon request to the Sales Department, in case specific account management is required to maintain a healthy customer relationship. Conclusion SBC E -Services will provide the customer with as many addresses as needed to operate on the Internet. The customer is expected to utilize these addresses effectively and not simply based on convenience. All requests for a change in a customers IP allocation should be called in to 888 -Web -Host to discuss the necessary documentation. Dedicated Hosting Services provided by SBC E -Services. Inc Number of IP Addresses Requested (Mark with an "X" under IP Addresses) Request IP Choices IP Addresses Up to 2 (2 maximum) Up to 16 (16 maximum) Up to 32 (32 maximum) Up to 64 (64 maximum) Up to 128 (128 maximum) Up to 256 (256 maximum) IP address approvals are at SBC Communications discretion based on our ability to determine your immediate or future need. SBC reserves the right to refuse IP address requests. Evaluation Criteria / Questionnaire While SBC has offered multiple IP addresses with their Dedicated Hosting packages, the implementation of IP addresses is limited by ARIN's new policies for IP Address justification. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name -based hosting where possible. Below please find additional guidelines in ARIN justification requests: 1) Do you have client machines that do not need a fixed IP address? Consideration should be given towards employing name -based instead of IP -based virtual domain hosting. This will allow you to host an unlimited number of domains (subject to the limits of your web server software/hardware) per web server without needing a separate IP address per domain. Do you have client machines that do not need a fixed IP address? 2) Are you employing the webhosting services for primary or secondary DNS? If so, DNS servers meet ARIN justifications for hard -coded IP address implementation. Are you employing the webhosting services for primary or secondary DNS? 3) Are you installing SSL certificates for secure transactions? If so, SSL cert providers require a hard -coded IP address. Therefore this falls into adequate ARIN justificat'on. Are you installing SSL certificates for secure transactions? 4) Are you employing Mail or Database services on your dedicated Webhosting server? If you are you are employing a separate, dedicated mail or database server, this would fall within ARIN guidelines for a dedicated IP address. Are you employing Mail or Database services on your dedicated Webhosting server? Dedicated Hosting Services provided by SBC E -Services, Inc TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION Client is to 1111 out this form If they do not normally pay sales tax to the State of Texas. Otherwise the client will be billed for Texas Sales Tax. Name of Purchaser, Firm or Agency: City of Fayetteville Address (Street & number, P.O. Box or Route Number), Phone # (including area code) 113 West Mountain City, State, Zip: Fayetteville, AR 72701 I, the purchaser named above, claim an exemption items described below or on the attached order or invoice from payment of sales form: and use taxes for the purchase of taxable Seller: Street address: City, State, Zip: Description of items to be purchased or on the attached order or invoice: Purchaser claims this the state of Texas): exemption for the following reason (i.e., reseller or benefit_of service will be used outside. of I understand that I will be liable for payment of sales or use taxes which may become due for failure to comply with the provisions of the Tax Code: Limited Sales, Excise and Use Tax Act; Municipal Sales and Use Tax Act; County Health Services Sales and Use Tax; The Texas Health and Safety Code; Special Provisions Relating to Hospital Districts, Emergency Services Districts, and Emergency Services Districts in counties with a population of 125,000 of less. I understand that it is a criminal offense to give an exemption certificate to the seller for taxable items that I know, at the time of purchase, will be used in a manner other than that expressed in this certificate and, depending on the amount of tax evaded, the offense may range from a Class C misdemeanor to a felony of the second degree. � �>I '8Title: Purchaser: 1.. /� / /7?/� j2 Signature. ' �� Date: 3/5-4fi Note: THIS CERTIFICA Dr/ES NOT REQUIRE A NUMBER TO BE VALID. Sales and Use Tax "Exemption Numbers" or ax Exempt" Numbers do not exist. Dedicated Hosting Services provided by SBC E -Services, Inc DEDICATED HOSTING CUSTOMER SERVICE AGREEMENT This is an agreement between you ("Account Holder") and SBC E -Services, for itself and on behalf of its Affiliates ("SBC") regarding your use of SBC's computer, interactive information, communication and server management services related to hosting one or more websites for you. 1. OVERVIEW. 1.1 General. This Agreement governs the terms and conditions under which SBC makes the services offered by SBC available to individual consumers or small businesses. Under this Agreement, you must comply with SBC 's then current "Acceptable Use Policy," as updated from time to time by SBC, which can be viewed at www.webhosting.com. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY COMPLETING THIS ORDER FOR SERVICES PROVIDED BY SBC YOU AND YOUR BUSINESS ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND SBC's ACCEPTABLE USE POLICY. 1.2 Definitions. (a) "Affiliate° of any Person means any other Person directly or indirectly controlling, directly or indirectly controlled by or under direct or indirect, control with such Person. As used in this definition, the term "control," "controlling" or "controlled by" shall mean in possession, directly or indirectly, of the power either to (i) vote fifty percent (50%) or more of the securities or interests having ordinary voting power for the election of directors (or other comparable controlling body) of such Person or (ii) direct or cause the direction of the actions, management or policies of such Person, whether through the ownership of voting securities or interest, by contract or otherwise, excluding in each case, any lender of such Person or any Affiliate of such lender. (b) "Initial Term" means the minimum term for which SBC will provide the Service(s) to Account Holder, as indicated on the Statement of Work. Except as otherwise expressly provided in this Agreement, SBC is obligated to provide and Account Holder is obligated to pay for each Service through its Initial Term and any Renewal Term. (c) "Internet Data Center(s)" or "IDC" means any of the facilities from which SBC provides Dedicated Webhosting Service(s). (d) "Renewal Term" means any service term following the Initial Term, as specified in Section 2.2. (e) "SBC Acceptable Use Policy" means the SBC Acceptable Use Policy and Terms and Conditions, the general terms and conditions governing Account Holder's use of Services, including, but not limited to, online conduct, and the obligations of Account Holder and its Representatives in the Internet Data Centers, as set forth in Appendix "A" hereto and as periodically updated on SBC's website www.webhosting.com. (1) "Service(s)" means the specific service(s) provided by SBC as described on the Statement(s) of Work). (g) "Statement of Work" means the detailed description(s) of the Services set forth in Appendix "B" hereto. 2. DELIVERY OR SERVICES; TERMS; FEES 2.1 Delivery of Services. (a) General. By submitting a Statement of Work, Account Holder agrees to take and pay for, and, by accepting the Statement of Work, and, upon the Effective Date, SBC agrees to provide, the Service(s) during the Initial Term and for any Renewal Term as specified in paragraph 2.2(b) below. A rejected Statement of Work, when modified and resubmitted, shall be considered a new Statement of Work submission. 2.2 Term. (a) Term Commencement. SBC will host an account for Account Holder, for the Account Holder's registered domain name, for the period of time (the "Term") corresponding with the payment plan chosen by the Account Holder. (b) Renewal term(s). This contract will be automatically renewed for a period of one (1) month at the end of the Term ("Renewal Term") and each successive Renewal Term, unless terminated prior, at SBC's then -current rates and charges. Termination of services by the Account Holder must be given in written form, at least 30 days prior to the termination date. Phone notification is not acceptable. Dedicated Hosting Services provided by SBC E -Services, Inc 3. FEES AND PAYMENT TERMS 3.1 Fees and Expenses. Account Holder will pay all fees due according to the prices and terms listed in the Statements of Work. The prices listed in the Statement(s) of Work will remain in effect during the Initial Term indicated in the Statements of Work and will continue thereafter, unless modified in accordance with Section 3.3. Variables the Account Holder chooses after filling out the Statement of Work, such Professional Services/Consulting, hardware options, additional services and Usage Overages may affect the billed fees. Overage charges include but are not limited to (1) Data Transfer Above Limit at the rate charged by SBC over the included allotment (2) Tape Back Up overages and consulting — see Tape Back Up Addendum for pricing and (3) Firewall overages and consulting — see Firewall Addendum for pricing. 3.2. Payment Terms. SBC may require a security deposit prior to provisioning Service. All installation fees and non-recurring charges, along with the first month's service fees, shall be due and payable within 14 days of invoice date. Thereafter, recurring fees will be invoiced on a monthly basis according to SBC's billing cycle and are due within 14 days of billing date. Accounts that are past due by more than thirty (30) calendar days shall be subject to immediate interruption of service(s), with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of SBC. Reactivation of the service after termination or cancellation for any reason shall require the payment of additional installation charges and is subject to the availability of facilities. All inquiries regarding payment or your account should be directed in the United States to 888 -WEB -HOST (888 932-4678) and in Canada, 416 260-5411. 3.3 Price Changes. During the initial term of this Agreement, Account Holder will not be charged an amount greater than the price set for the Services hereunder. SBC, however, reserves the right to change, without prior notice, after such initial term, the prices charged to the Account Holder for the services provided by SBC. Upon renewal, as provided in paragraph 2.2(b) above, the prices charged may be changed to the then prevailing price for the Services. 3.4 Taxes. Each Party purchasing functions, facilities, products and services (Services) under this Agreement shall pay or otherwise be i responsible for all federal, state, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or with respect to, the Services under this Agreement provided by or to such Party. (a) Billing and Withholding. Whenever possible, Taxes shall be billed as a separate item on the invoice. If the Account Holder is required by mandatory law, to withhold taxes based upon any payments made to SBC from or on behalf of Account Holder under the terms of this Agreement, the parties agree that such payments to SBC shall be grossed up to reflect such levies. Account Holder shall provide SBC with all documents establishing the basis and the amount of such deduction and the payment by Account Holder thereof to the respective tax authority. (b) With respect to any purchase of Services under this Agreement if any Tax is required or permitted by Applicable Law to be collected from the Account Holder by SBC, then: (i) SBC shall bill the Account Holder for such Tax; (ii) the Account Holder shall remit such Tax to SBC; and (iii) SBC shall remit such collected Tax to the applicable taxing authority. Failure to include Taxes on an invoice or to state a Tax separately shall not impair the obligation of the purchasing Party to pay any Tax. Nothing shall prevent SBC from paying any Tax to the appropriate taxing authority prior to the time: (1) it bills the Account Holder for such Tax, or (2) it collects the Tax from the Account Holder. ( c) Resold Services. With respect to any purchase hereunder of Services, under this Agreement that are resold to a third party, if any Tax is imposed by Applicable Law on the end user in connection with any such purchase, then: (i) the purchasing Party shall be required to impose and/or collect such Tax from the End User; and (ii) the purchasing Party shall remit such Tax to the applicable taxing authority. The purchasing Party agrees to indemnify and hold harmless the providing Party for any costs incurred by the providing Party as a result of actions taken by the applicable taxing authority to collect the Tax from the providing Party due to the failure of the purchasing Party to pay or collect and remit such tax to such authority. (d) Uncollected Taxes. If SBC fails to bill or to collect any Tax as required herein, then, as between SBC and the Account Holder (i) the Account Holder shall remain liable for such Dedicated Hosting Services provided by SBC E -Services, Inc uncollected Tax; and (ii) SBC shall be liable for any penalty and interest assessed with respect to such uncollected Tax by such authority. However, if the Account Holder fails to pay any Taxes properly billed, then, as between SBC and the Account Holder the Account Holder will be solely responsible for payment of the Taxes, penalty and interest. (e) If the Account Holder fails to impose and/or collect any Tax from end users or its other retail customers as required herein, then, as between SBC and the Account Holder, the Account Holder shall remain liable for such uncollected Tax and any interest and penalty assessed thereon with respect to the uncollected Tax by the applicable taxing authority. With respect to any Tax that the Account Holder has agreed to pay or impose on and/or collect from end users or its other retail customers, the Account Holder agrees to indemnify and hold harmless SBC for any costs incurred by the providing Party as a result of actions taken by the applicable taxing authority to collect the Tax from SBC due to the failure of the Account Holder to pay or collect and remit such Tax to such authority. (1) Audits. If either Party is audited by a taxing authority or other Governmental Authority, the other Party agrees to reasonably cooperate with the Party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or any resulting controversy may be resolved expeditiously. (g) Tax Exemptions. To the extent a sale is claimed to be for resale and thus subject to tax exemption, the Account Holder shall fumish SBC a proper resale tax exemption certificate as authorized or required by statute or regulation of the jurisdiction providing said resale tax exemption. Failure to timely provide said resale tax exemption certificate will result in no exemption being available to the Account Holder for any period prior to the date that the Account Holder presents a valid certificate. If Applicable Law excludes or exempts a purchase of Services, under this Agreement from a Tax, but does not also provide an exemption procedure, then the providing Party will not collect such Tax if the Account Holder (a) furnishes SBC with a letter signed by an officer of the purchasing Party claiming an exemption and identifying the Applicable Law that both allows such exemption and does not require an exemption certificate; and (b) supplies SBC with an indemnification agreement, reasonably acceptable to SBC, which holds SBC harmless from any tax, interest, penalties, loss, cost or expense with respect to forbearing to collect such Tax. (h) Controversies. With respect to any Tax or Tax controversy covered by this Section, the Account Holder is entitled to contest with the imposing jurisdiction, pursuant to applicable law and at its own expense, any Tax that it is ultimately obligated to pay or collect. The purchasing Party will ensure that no lien is attached to any asset of SBC as a result of any contest. The Account Holder shall be entitled to the benefit of any refund or recovery of amounts that it had previously paid resulting from such a contest. Amounts previously paid by SBC shall be refunded to the SBC. The parties agree to cooperate with each other in any such contest. (1) Notices. All notices, affidavits, exemption certificates or other communications required or permitted to be given by either Party to the other under this Section 3 shall be sent in accordance with Section 10.9 hereof. 4. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS. 4.1 Confidential Information. (a) Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other partys business, plans, customers, technology, and products, and other information held in confidence by the other party ("Confidential Information'). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, SBC developed technology, Account Holder developed technology, and the terms and conditions of this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Dedicated Hosting Services provided by SBC E -Services, Inc (b) Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a govemmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. 4.2 Intellectual Property. (a) Ownership. Except for the rights expressly granted herein), this Agreement does not transfer from SBC to Account Holder any SBC developed technology, and all right, title and interest in and to such technology will remain solely with SBC. Except for the rights expressly granted herein, this Agreement does not transfer from Account Holder to SBC any Account Holder developed technology, and all right, title and interest in and to such technology will remain solely with Account Holder. SBC and Account Holder each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party. (b) General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, SBC will not be prohibited or enjoined at any time by Account Holder from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of SBC. 5. SBC REPRESENTATIONS AND WARRANTIES. 5.1 Authority and Performance of SBC. SBC represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (11) the performance of its obligations and delivery of the Services to Account Holder will not violate any applicable U.S. laws or regulations, or cause a breach of any agreements with any third parties. SBC warrants that it is either the owner or licensee of any software involved herein and all documentation related to any such software, and has the right and power to deliver and license the software and all documentation related to the software. Warranty service provided under this Agreement does not insure uninterrupted operation of the system. Except for the limited warranties set forth herein, Software is provided "as is" without warranty of any kind, either express or implied. SBC does not warrant that the software, including security software, operates without error or will prevent third party hacking or access to Account Holder's networks. In the event of a breach of the warranties set forth in this paragraph 5.1, Account Holder's sole remedy is termination pursuant to Section 9 of the Agreement. 5.2. Service Level Warranty. In the event that Account Holder experiences any of the service pertormance issues defined in this Section 5.2 as a result of SBC' failure to provide Services in accordance with this Agreement, SBC will, upon Account Holder's request in accordance with this Section 5 (the "Service Level Warranty"), issue a service credit to Account Holder's account as described below. The Service Level Warranty shall not apply to performance issues (i) caused by factors outside of SBC' reasonable control; (ii) that resulted from any actions or inaction's of Account Holder or any third parties; or (iii) that resulted from Account Holder's equipment or software and/or third party equipment or software (not within the sole control of SBC). (a) Service Credits. Service credits will be issued if SBC fails to meet the Service Levels. Credits for any incident, or multiple incidents, within any calendar month will not exceed Account Holder's monthly bill for recurring charges during such month (b) Downtime Periods. In the event Account Holder experiences Downtime, Account Holder shall be eligible to receive from SBC a service credit for each Downtime period with a maximum aggregate service credit of one -month's billing charges for all Downtime for incidents occurring during such month. "Downtime", as used herein, -- shall mean any period in excess of (30) consecutive minutes during which SBC's equipment is incapable of delivering Dedicated Hosting Services provided by SBC E -Services, Inc the Service(s), but shall not include periods during which SBC's equipment is capable of delivering the Service(s), but Account Holder, for whatever reason, is not utilizing the Service(s). Downtime shall not include any network unavailability during SBC's scheduled maintenance of the Internet Data Centers, network and Service(s), as described in the Rules and Regulations, or due to Force Majeure. (c) Account Holder Must Request Service Credit. In order to receive any of the Service Credits described in this Section 5.2, Account Holder must notify SBC within five (5) days from the time Account Holder becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Account Holder's right to receive a Service Credit. (d) Termination Option for Repeatedly Failing to Meet Common Obligations. Failure by SBC to fulfill its obligations under any specific Statement of Work(s) shall be remedied in accordance with the provisions of the relevant Statement of Work(s). Termination under this provision due to repeated failure to meet common obligations will be effective thirty (30) days after receipt of such notice by SBC. (e) THE SERVICE LEVEL WARRANTY SET FORTH IN THIS SECTION 5.2 SHALL ONLY APPLY TO THE SERVICE(S) PROVIDED BY SBC AND, DOES NOT APPLY TO ANY OTHER PRODUCTS OR SERVICES RECEIVED BY ACCOUNT HOLDER FROM SBC; OR ANY SERVICE(S) THAT EXPRESSLY EXCLUDE THIS SERVICE LEVEL WARRANTY (AS STATED IN THE SPECIFICATION SHEETS FOR SUCH SERVICES). THIS SECTION 5.2 STATES ACCOUNT HOLDER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY SBC TO PROVIDE SERVICE(s). 5.3 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND ACCOUNT HOLDER'S USE OF THE SERVICES IS AT rT5 OWN RISK. SBC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SBC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR -FREE, OR COMPLETELY SECURE. 5.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. SBC DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM SBC' NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT ACCOUNT HOLDER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH SBC WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, SBC CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, SBC DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. 5.5 Disclaimer of Actions Caused by and/or Under the Control of Account Holder. SBC SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, REPAIRS OR MODIFICATIONS NECESSITATED BY THE ACCOUNT HOLDER'S ALTERATION OF THE OPERATING SYSTEM, INCLUDING ANY AND ALL OPERATIONAL ISSUES WHICH MAY ARISE AS A RESULT OF THE ADDITION OF SOFTWARE BY ACCOUNT HOLDER. SBC SHALL NOT BE LIABLE FOR ANY DELAY IN PROVIDING OR ANY FAILURE TO PROVIDE SERVICES IF SUCH DELAY IS CAUSED BY FORCES BEYOND THE REASONABLE CONTROL OF SBC. 6.ACCOUNT HOLDER OBLIGATIONS. 6.1. Account Holder Responsibility. The terms of this Agreement shall apply to all accounts, sub - accounts, and alternative account names associated with Account Holder's principal account. The Account Holder is responsible for the use of each account, whether used under any name or by any person, and for ensuring full compliance with this Agreement by all users of that account. A SBC account may not be transferred without prior written approval from SBC. The Account Holder is responsible for maintaining the confidentiality of his/her password. In the event of a breach of security through the Account Holder's account, the Account Holder will be liable for any unauthorized use of the SBC services, including any damages resulting therefrom, until the Account Holder notifies SBC 's customer service. 6.2. IP Address. If SBC assigns the Account Holder an Internet Protocol address in connection with the Account Holder's use of the SBC services, the right to use that Internet Protocol address will remain with and belong only to SBC, and the Account Holder shall have no right to use such Internet Protocol address except as allowed by SBC in its sole and absolute discretion. Dedicated Hosting Services provided by SBC E -Services, Inc 6.3 Warranties of Account Holder. (a) General. Account Holder represents and warrants that (i) it has the legal right and authority, and will continue to own or maintain the legal right and authority, during the term of this Agreement, to place and use any Account Holder Equipment as contemplated under this Agreement; (ii) the performance of its obligations and use of the Services (by Account Holder, its customers and users) will not violate any applicable laws, regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other SBC customers' use of SBC services, and that it will strictly comply with the SBC Acceptable Use Policy, a copy of which Is attached hereto as Appendix "A', and these Terms and Conditions. (b) Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, SBC will have the right, in its sole reasonable discretion, to suspend immediately any related Services if deemed reasonably necessary by SBC to prevent any harm to SBC and its business SBC will provide notice and opportunity to cure if practicable depending on the nature of the breach. Once cured, SBC will promptly restore the Service(s). 6.4 Compliance with Law and SBC Acceptable Use Policy and Terms and Conditions. Account Holder agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Account Holder will strictly comply at all times with all applicable laws and regulations and the SBC Acceptable Use Policy and Terms and Conditions, as updated by SBC from time to time. The SBC Acceptable Use Policy and Terms and Conditions are incorporated herein and made a part hereof by this reference. SBC may change the SBC Acceptable Use Policy and Terms and Conditions upon ten (10) days' notice to Account Holder, which notice may be provided by posting such new SBC Acceptable Use Policy and Terms and Conditions at the SBC Web site www.webhosting.com and notifying Account Holder through electronic mail at an address to be designated by Account Holder that such change has been posted. Account Holder agrees that it has received, read and understands the current version of the SBC Acceptable Use Policy and Terms and Conditions. The SBC Acceptable Use Policy and Terms and Conditions contain restrictions on Account Holder's and Account Holder's users' online conduct (including prohibitions against unsolicited commercial email) and may contain financial penalties for violations of such restrictions. Account Holder agrees to comply with such restrictions and, in the event of a failure to comply, Account Holder agrees to pay the financial penalties in accordance with the SBC Acceptable Use Policy and Terms and Conditions. Account Holder acknowledges that SBC exercises no control whatsoever over the content of the information passing through Account Holder's site(s) and that it is the sole responsibility of Account Holder to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations and the SBC Acceptable Use Policy and Terms and Conditions. 6.5 Termination for Violation. Violations of these or any other provisions of this Agreement may result in termination of the services provided by SBC in its discretion, with or without the grant of a notice or cure period, such notice or cure period to be granted at the sole discretion of SBC based upon the severity of the violation. SBC reserves the right to refuse service if any of the content within, or any links from, the Account Holder's website is deemed prohibited unlawful, unlicensed, illegal, misleading, or obscene, or is otherwise in breach of SBC's then current "Acceptable Use Policy" in SBC's sole discretion. If SBC terminates the services being provided to the Account Holder due to a violation of the Acceptable Use Policy, such termination shall be without refund Notwithstanding anything in this Agreement, the content of the Account Holder's website is the sole responsibility of the Account Holder. The Account Holder agrees to indemnity and hold harmless SBC from any and all claims, losses, damages, liabilities, judgments, or settlements, including reasonable attorney's fees, costs, and other expenses incurred by SBC, (collectively, "Claims") related to or in connection with the content of the Account Holder's website. The terms of this Section will survive any termination of this Agreement. If the Account Holder sells or resells advertising or webspace to a third party, then the Account Holder shall be responsible for the contents of such advertising and the actions of such third party. SBC has the absolute right to reject any advertising or other third party content that is illegal, offensive or otherwise in breach of the then current SBC "Acceptable Use Policy". The e- mail distribution by the Account Holder of "SPAM", "JUNK MAIL", or "UNSOLICITED COMMERCIAL E-MAIL", is expressly prohibited. If the Account Holder refuses to remove any advertising or other third party content deemed objectionable by SBC, SBC may terminate the services being provided to the Account Holder, without refund. Dedicated Hosting Services provided by SBC E -Services, Inc 6.6. Passwords- Account Ownership. The Account Holder shall be responsible for maintaining security of its password. SBC will not change passwords to any account without proof of identification, which is satisfactory to SBC, which may include written authorization with signature. In the event of any dissolution of a corporation or partnership, divorce or other legal action that includes Account Holder, Account Holder understands that SBC will remain neutral and may put the account on hold until final adjudication of the disposition of the domain name by a court with appropriate jurisdiction. Under no circumstances will SBC be liable for any losses incurred by Account Holder during this time of determination of ownership, or otherwise. The Account Holder agrees to indemnify and hold harmless SBC from any and all Claims arising from such ownership disputes. The terms of this Section will survive any termination of this Agreement. 6.7. Transfer of Rights. The Account Holder's rights and privileges under this Agreement cannot be sold or transferred without the prior written consent of SBC. 7. LIMITATION OF LIABILITY. 7.1 Service Interruption. SBC will use its best efforts to maintain a full time Internet presence for the Account Holder. The Account Holder hereby acknowledges that the network may, at various time intervals, be down due, but not limited to, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall SBC be liable to the Account Holder for any damages resulting from or related to any failure or delay of SBC in providing access to the Internet under this Agreement. 7.2 CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL SBC BE LIABLE TO THE ACCOUNT HOLDER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. THE AGGREGATE, TOTAL LIABILITY OF SBC UNDER THIS AGREEMENT, IF ANY, SHALL IN NO EVENT OR CIRCUMSTANCE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE ACCOUNT HOLDER HEREUNDER. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. 7.3. Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that SBC has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. 8. INDEMNIFICATION. 8.1 Indemnification. The Account Holder agrees to indemnity and hold SBC harmless from any and all claims or causes of action of any kind or nature, arising out of or related to Account Holder's use of products and services, including the software load of any upgrades or patches, purchased from or provided by SBC, as well as all claims or causes of action of any kind or nature brought by any third party, or any of Account Holder's own customers. The Account Holder and SBC will promptly notify the other upon receipt of any Claim or legal action arising out of activities conducted pursuant to this Agreement. The rights and responsibilities established in this paragraph will survive any termination of this Agreement. 9.TERMINATION. 9.1. Termination For Cause. Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay tees, which must be cured within five (5) days after receipt of written notice from SBC; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of f iling. 9.2 Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms. In the case of Customer's termination or cancellation without cause, Customer Dedicated Hosting Services provided by SBC E -Services, Inc 1