HomeMy WebLinkAbout61-05 RESOLUTION•
RESOLUTION NO. 61- 05
A RESOLUTION TO APPROVE A WEB HOSTING CONTRACT
WITH SOUTHWESTERN BELL COMMUNICATIONS, INC. IN
THE AMOUNT OF $14,100.00 PLUS $2,820.00 CONTINGENCY,
PLUS TAX ANNUALLY FOR FIVE YEARS
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 web hosting contract with Southwestern Bell Communications, Inc., as
attached as Exhibit "A" in the amount of $14,100.00 plus $2,820.00 contingency, plus tax
annually for five years.
PASSED and APPROVED this 5th day of April, 2005.
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SONDRA SMITH, City Clerk
By
APPROVED:
DAN COODY, Mayor
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MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (THE "AGREEMENT" BETWEEN SBC E -SERVICES, INC. (SBC) AND Cin' OF FAYETTEVILLE
("CUSTOMER") IS MADE EFFECTIVE ("the Effective Date") on the date of the last signature made by a party to this
Agreement. The term for each Statement of Work will commence on the Service Commencement Date indicated in the
Statement of Work. SBC and Customer are referred to herein individually as a "Party" and collectively as the "Parties".
1. OVERVIEW
1.1Generat This Agreement, including the attachments, which are incorporated herein, states the terms and
conditions by which SBC will provide and Customer will receive and pay for hosting services described in Exhibit A, and
other agreed upon services at SBC's Internet Data Center facility as set forth in the initial Statement of Work attached as
Exhibit A (collectively referred to as "Services"). This specifically does not include regulated telecommunications services
provided to Customer any SBC Affiliate or third party. Customer may, during the course of this Agreement, submit to SBC
additional Statements of Work that, if accepted by SBC, shall become part of this Agreement and attached as Exhibits. A
rejected Statement of Work, when modified and resubmitted, shall be considered a new Statement of Work submission.
Each Statement of Work submitted by Customer, accepted by SBC, and executed by both Parties is hereby incorporated
by reference into this Agreement.
1.2 Definitions.
(a) "Affiliate" of any Party means any other Party directly or indirectly controlling, directly or indirectly
controlled by or under direct or indirect, common control with such Party. As used in this definition, the terrn "control,"
"controlling" or "controlled by" shall mean in possession, directly or indirectly, of the power either to (1) 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 Party or (11) direct or cause the direction of the actions, management or policies of such Party.
whether through the ownership of voting securities or interest, by contract or otherwise, excluding in each case, any
lender of such Party or any Affiliate of such lender.
(b) "Commencement Date" shall have the meaning specified in the applicable Statement of Work.
(c) "Contact Information form" means the fist, set -forth in Exhibit A that contains the names and contact
information (e.g. pager, email and telephone numbers) of Customer and the individuals authorized by Customer to make
decisions regarding Customer's account. This form may be amended in writing from time to time by Customer.
(d) "Internet Data Center(s)" or "IDC" means any of the facilities used by SBC to provide the Data Center
Hosting Service(s).
(e) Representatives" mean the individuals identified in writing on the Contact Information form attached
hereto as Exhibit A and authorized by Customer to make decisions regarding Customer's account.
ff) "SBC Acceptable Use Policy" for Data Center Hosting means the general terms and conditions goveming
Customer s use of Services as set forth at www.SBCHOST.COM and described further in Section 6.2, hereby incorporated
into this Agreement by reference including, but not limited to, online conduct, and the obligations of Customer and its
Representatives in the Internet Data Centers.
(g) "Service(s)" means the specific service(s), provided by SBC as described in the Statement(s) of Work and
in any Addenda or Exhibit to this Agreement.
(h) "Service Level Agreement" or "SLA" means the service level commitments in Exhibit B.
(i) "Statement of Work" or "SOW means the detailed description(s) of the Services, the Customer Site
Environment (referenced in Exhibit B) Customer Area, and any equipment that SBC may make available for Customer
use at the IDC in the Customer Area. The initial SOW is set forth in Exhibit A to this Agreement.
(j) "Megabyte" shall be abbreviated with "MB".
(k) "Gigabyte shall be abbreviated with "GB".
TERM
2.1 Term. The term of this Agreement and the initial Statement of Work will begin on he Commencement Date
and continue for the period indicated on the initial Statement of Work ("Initial Term"). All subsequent Statements of Work
and Addenda or Exhibits submitted by Customer and accepted by SBC in association with th's Agreement, shall have
terrns that operate concurrently with the initial Statement of Work, and renew or terminate simultaneously with the initial
Statements of Work, unless otherwise specifically stated in the relevant Statement of Work or Addendum.
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2.2 Renewal Term(s). This Agreement and each Statement of Work will continue automatically for additional
one (1) year terms ("Renewal Terms"), unless otherwise agreed to in writing by the Parties or terminated upon notice by
either Party, at SBC's then -current rates and charges for such term. During each Renewal Term, Customer's Service will
be subject to SBC's then -current Service Level Agreement
FEES AND PAYMENT TERMS
3.1 Fees and Expenses. Customer will pay all fees due according to the prices and terms listed in the Statements
of Work. The prices listed in the Statements of Work will remain in effect during the Initial Term.
3 2 Payment Terms. Customers initial invoice will generally include the non-recuning charges indicated in the
Statement of Work and the monthly recurring charges for the first month of the term. Monthly recurring charges for all
other months will be billed monthly in advance of the provision of Services. All other charges for Services received during
a month will be billed at the end of the month in which the Services were provided. Payment for all fees is due upon
receipt of each SBC invoice. All payments will be made in the United States in U.S. dollars. SBC reserves the right to
modify any billing, including back billing to the extent permissible by applicable law, to reflect corrections or adjustments
for billed services.
3.3 Late Payments. Any payment not received within thirty (30) days after the invoice date will accrue a service
charge at a rate of one and one-half percent (1 Y2%) per month, or the highest rate allowed by applicable law, whichever
is lower. If Customer is delinquent in its payments by more than sixty (60) or more days, SBC has the right to limit
bandwidth access to 10 GBs of Transfer or 1MB per second at its discretion. If Customer is delinquent in its payments by
more than ninety (90) consecutive days, or in excess of thirty (30) days more than three (3) times during the Initial Term,
Customer vrill be given written notice and five (5) days to cure. If Customer fails to pay fees by the end of the cure period,
SBC may suspend or terminate Service and SBC may, upon written notice to Customer, modify the payment terms to
require advance payment or deposit before the provision of any or all Services, or require other assurances to secure
Customer's payment obligations hereunder.
3.4 Taxes. All fees charged by SBC for Services are exclusive of all taxes. Customer will be responsible for, and
will pay in full, all federal, state, and local, sales, use, excise, gross receipts, and similar taxes, and all fees now in force or
enacted in the future that are imposed on or with respect to the products and/or Services provided under this Agreement or
Statement of Work; including those taxes and fees imposed on SBC but excluding taxes based upon SBC's net income.
Customer shall reimburse SBC for the amount of any such taxes or fees that SBC is required to pay or collect for Services.
To the extent that Customer claims that a sale is eligible for the resale tax exemption, Customer shall fumish SBC with a
proper resale exemption certificate as authorized or required by statute or regulation by the jurisdiction providing the tax
exemption. No exemption will be allowed to Customer unless and until a valid certificate is provided.
4. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS; TITLE
4.1 Confidential Information.
(a) Nondisclosure of Confidential Information. Each Party acknowledges that it may 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, reasonably should be considered confidential. Confidential Information will also include,
but not be limited to, SBC developed technology, Customer developed technology, and the terms and conditions of this
Agreement. Each Party agrees that it wili 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 Partys 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.
(b) Exceptions. Information vrill 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; (11) 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 to permit the disclosing Party to
contest such disclosure.
4.2 Intellectual Property.
(a) Ownership. Except for the rights expressly granted herein and the assignment expressly made in
paragraph 4.3(a), this Agreement does not transfer from SBC to Customer any SBC developed technology, and
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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 Customer to SBC any Customer developed technology,
and all right, title and interest in and to such technology will remain solely with Customer. Each Party 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's developed technology.
(b) General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, SBC
will not be prohibited or enjoined at any time by Customer 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.
4.3 License Grants.
(a) By SBC. SBC hereby grants to Customer a nonexclusive, non -transferable, royalty -free license, during
the term of this Agreement, to use the SBC developed technology solely for purposes of using the Service(s). Customer
shall have no right to use such technology for any purpose other than using the Service(s). Customer also agrees to
comply with the terms and conditions applicable to the use of any Microsoft Software provided in connection with the
Services, as such terms and conditions are listed on Exhibit D and as may be updated by Microsoft from time to time.
(b) By Customer. Customer agrees that if, in the course of performing the Service(s), it is necessary for SBC
to access Customer equipment and use Customer developed technology, SBC is hereby granted and shall have
permission to access the Customer equipment and a nonexclusive, royalty free license, during the term of this
Agreement, and to use such Customer equipment and developed technology solely for the purposes of delivering the
Service(s) to Customer. SBC shall have no right to use the Customer equipment and developed technology for any
purpose other than providing the Service(s) hereunder, unless perrnission to do so is otherwise obtained.
(c) Technology Rights. To the extent that Customer or its employees or contractors participates with
SBC in the creation or development of technology, Customer, on behalf of itself and its employees and
contractors, hereby assigns to SBC all right, title and interest, including all intellectual property rights, in the
technology.
4.4 Title. Except for Customer equipment owned and provided by Customer, SBC owns the hardware
components provided by SBC and necessary for the delivery of this Service and hereby grants Customer the
limited right to use that hardware for the term of this Agreement solely in accordance with the terms and
conditions set forth herein. Nothing contained herein, nor any actions or inactions of SBC or Customer shall be
construed to grant Customer any right, title, interest, or physical access to such hardware.
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 (1i) the performance of its obligations and delivery of the Services
to Customer will not violate any applicable U.S. laws or regulations, including OSHA requirements. In the event of a
breach of the warranties set forth in this paragraph, Customers sole remedy shall be termination pursuant to Section 9 of
this Agreement.
5.2 Service Level Warranty. SBC agrees to meet the service levels set forth in the Service Level Agreement ("SLA")
in Exhibit B. In the event SBC fails to adhere to the Service Levels set forth therein, Customer shall be entitled to receive,
upon Customer's request in accordance with this Exhibit B, a Service Credit to Customer's account as described in Exhibit
B.
5.3 Termination Option for Repeatedly Failing to Meet the Service Level Agreement. Customer may terminate this
Agreement for cause and without penalty by notifying SBC in writing within five (5) days following the end of a calendar
month in which SBC fails to meet its SLA, other than Network Availability, three (3) times. If SBC fails to meet its Network
Availability SLA three (3) times within a six (6) month period, Customer may terminate this Agreement for cause and
without penalty by notifying SBC, in writing, within five (5) days after the third missed SLA. Termination under this
provision will be effective thirty (30) days after receipt of such notice by SBC.
5.4 Applying the SLA. The service level warranty set forth in this Agreement and Exhibit B shall only apply to the
Service(s) provided by SBC under this Agreement and any Addenda hereto, does not apply to any other products or
services received by Customer from any SBC company; or any Service(s) that expressly exclude this service level
warranty. This Section states Customer's sole and exclusive remedy for any failure by SBC to provide Service(s).
5.5 No Other Warranty. Except for the express warranties set forth in this Section 5, the Services are provided on
an as is basis, and Customer's use of the Services is at its 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, 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.
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5.6 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's 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 Customer'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.
5.7 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 CUSTOMER ALTERATION OF ANY OF SBC'S OPERATING
SYSTEM, INCLUDING ANY AND ALL OPERATIONAL ISSUES WHICH MAY ARISE AS A RESULT OF THE ADDITION OF SOFTWARE BY
CUSTOMER. SBC SHALL NOT BE LIABLE FOR ANY DELAY P4 PROVIDING OR ANY FAILURE TO PROVIDE SERVICES IF SUCH DELAY IS
CAUSED BY FORCES BEYOND THE REASONABLE CONTROL OF SBC. ALL. UTILITY PATCHES AND/OR UPGRADES TO OPERATING
SYSTEMS ARE THE RESPONSIBILITY OF THE CUSTOMER DURING THE COURSE OF THIS AGREEMENT. SBC WILL NOT BE LIABLE
FOR MALFUNCITONS OF CUSTOMER SUPPLIED SOFTWARE.
6. CUSTOMER OBLIGATIONS
6.1 Warranties of Customer.
(a) General. Customer represents and warrants that (1) the performance of its obligations and use of the
Services (by Customer, 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 (iff it will
strictly comply with the SBC Acceptable Use Policy as updated by SBC from time to time; and (iii) all equipment,
materials, software, hardware, and other tangible items used by Customer in conjunction with the Services provided
herein will be used in compliance with all applicable manufacturer specifications.
(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 immediately suspend or
terminate any related Services if deemed necessary by SBC to prevent any harm to SBC and its business. SBC will
provide notice and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured SBC will
promptly restore the Service(s).
6.2 Compliance with Law and SBC Acceptable Use Policy. Customer agrees that it will use the Service(s) only for
lawful purposes and in accordance with this Agreement. SBC may change the SBC Acceptable Use Policy upon notice to
Customer, which notice may be provided by posting such new SBC Acceptable Use Policy for Data Center Hosting at the
SBC Web site www.sbchost.com and notifying Customer through electronic mail, at the address designated by Customer
on the Customer Registration Form, that such change has been posted. The SBC Acceptable Use Policy and Terms and
Conditions contain restrictions on Customer's and Customer's users' online conduct (including prohibitions against
unsolicited commercial email) and may contain financial penalties for violations of such restrictions. Customer
acknowledges that SBC exercises no control whatsoever over the content of the information passing through Customers
site(s) and that it is the sole responsibility of Customer 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.
6.3 Restrictions on Use of Services. Customer shall not, without the prior written consent of SBC (which may be
withheld in its sole discretion), resell the Services to any third parties.
7. LIMITATIONS OF LIABILITY
7.1 Setvice Interruption. SBC will use its best efforts to maintain a full time Internet presence for the Customer. The
Customer hereby acknowledges that the network may, at various time intervals, be down due, but not limited to, 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 Customer 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. EXCEPT FOR A BREACH OF SECTION 4.1 ("CONFIDENTIAL INFORMATION") OF THIS
AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF
INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF
SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
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.
10 INDEMNIFICATION
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8.1 Indemnification. Each Party will indemnify, defend and hold the other harmless from and against any and all
costs, liabilities, losses, and expenses (including, but not limited to, reasonable attomeysfees) (collectively, "Losses")
resulting from any claim, suit, action, or proceeding (each, an "Action") brought by any third party against the other Party
or its Affiliates alleging (i) the infringement or misappropriation of any intellectual property right relating to the delivery or
use of the Service(s) (but excluding any infringement contributorily caused by the other party); or (ii) personal injury or
damage to real or tangible personal property caused by the negligence or Wilful misconduct of such Party. Customer will
indemnify, defend and hold SBC, its affiliates and customers harmless from and against any and all Losses resulting from
or arising out of any Action brought against SBC, its affiliates or customers which is caused, directly, or indirectly, by
Customer's breach of this Agreement, breach of any representation or warranty made in this Agreement, or failure to
comply or otherwise observe the Acceptable Use Policy.
82 Notice. Each Party's indemnification obligations hereunder shall be subject to (1) receiving prompt written notice
of the existence of any Action; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the
indemnified party to participate in the defense of any Action; and (iv) receiving full cooperation of the indemnified party in
the defense thereof.
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 the Effective Date of Notice
(as defined in Section 10.10 below) of the same, except in the case of failure to pay fees, which must be cured within five
(5) days after receipt of written notice from SBC; ) 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 o 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 filing.
92 Suspension Pending Termination. In the event SBC reasonably determines, in its sole discretion, that the
activities of Customer in connection with the Services provided under this Agreement pose an immediate risk of harm to
SBC's business or other customers, SBC may immediately suspend Service and terminate in accordance with this
paragraph 9. Any activities conducted in connection with this provision will be conducted solely for the SBC's benefit, and
not for the benefit of Customer or any third party
9.3 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 of the
Agreement, or applicable Statement of work, prior to expiration of the applicable term, Customer shall be immediately
liable to SBC for all rates and charges through the term, less SBC's reasonable avoided costs.
9.4 Effect of Termination. Unless otherwise stated in this Agreement, termination will be effective at the end of the
thirtieth (30th) day after the date of written notice of termination. Upon the effective date of termination of this Agreement:
(a) SBC will immediately cease providing the Service(s);
(b) any and all payment obligations of Customer under this Agreement for Service(s) provided through the date
of termination will immediately become due;
(c) within thirty (30) days after such termination, each party will return all Confidential Information of the other
Party in its possession (or destroy it, keeping only such copy as is needed for historical files) and will not
make or retain any copies of such Confidential Information except as required to comply with any
applicable legal or accounting record keeping requirement; and
9.5 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4.1,
4.2, 7, 8, 9 and 10.
10. MISCELLANEOUS PROVISIONS
10.1 Force Majeure. Except for the obligation to make payments, neither Party will be liable for any failure or delay in
its performance under this Agreement due to any cause beyond its reasonable control, including, but not fimited to, acts of
war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the
Internet (not resulting from the actions or inactions of SBC), provided that the delayed party: (a) gives the other Party
prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in
performance. If SBC is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing
force majeure event, Customer may cancel the Service(s), but there shall be no liability on the part of SBC.
102 Audit Rights. SBC reserves the right to audit Customer's site, and the materials comprising the site, at any time.
If the audit reveals any act or omission that, in SBC's sole opinion, constitutes a violation of any local, state, federal or
foreign law or regulation, SBC may immediately shut down the site, and notify Customer of the action. Customer agrees
that it waives any cause of action or claim it may have against SBC for such action.
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10.3 Marketing. Customer agrees that during the term of this Agreement SBC may publicly refer to Customer, orally
and in writing, as a Customer of SBC. Any other reference to Customer by SBC requires the written consent of Customer.
10.4 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or
indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first
complying with all export control laws and regulations which may be imposed by the U.S. Govemment and any country or
organization of nations within whose jurisdiction Customer operates or does business.
10 5 No Third Party Beneficiaries. SBC and Customer agree that, except as otherwise expressly provided in this
Agreement, there shall be no third party benefidaries to this Agreement, including but not limited to the insurance
providers for either party or the customers of Customer.
10.6 Governing Law; Dispute Resolution.
(a) Goveming Law. This Agreement is made under and will be govemed by and construed in accordance with
the laws of the state in which the Services are rendered (except that body of law controlling conflicts of law)
and specifically excluding from application to this Agreement the United Nations Convention on the
International Sale of Goods.
(b) Dispute Resolution; Escalation/Arbitration. The Parties will endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to this Agreement. If the Parties are
unable to resolve any dispute, controversy, cause of action, or claim arising out of or relating to this
Agreement, notice of such dispute and invocation of this escalation procedure ("Dispute Letter") shall be
submitted in writing in accordance with this Agreement. The primary contact person for each Party shall
then escalate the dispute to an individual at the level of vice-president or above for resolution and shall reply
to the other Party, in writing ("Reply Letter"), within five (5) business days, with the name of and contact
information for the individual who will negotiate the dispute. If the vice-presidents are unable to resolve the
dispute within ten (10) business days of the date of the last Reply Letter, then the dispute, other than those
disputes described in subparagraph (b) below , will be resolved by arbitration in accordance with the
Commercial Arbitration Rules (and if Customer is a non -U.S. entity, the International Arbitration Rules) of
the American Arbitration Association then obtaining, except with respect to discovery as stated in
subparagraph (d) below. All disputes, to be considered under this provision, shall be brought to the other
party's attention no later than one year after the claim has accrued.
(c) Arbitration. There will be three (3) arbitrators ("Arbitration Panel"). SBC shall choose one arbitrator, and
Customer shall choose one arbitrator within 30 business days of the date a dispute is submitted to the
executive officers of each Party and no resolution is achieved The third arbitrator shall be chosen by the
two arbitrators, which were selected by the parties, within twenty-five (25) days after the date the parties'
individual arbitrators are chosen. The language of the arbitration shall be English.
(d) Discovery. To the extent the arbitrators permit discovery, the following limitations shall be placed on
discovery: (i) depositions shall be limited to three (3) depositions per side; (ii) interrogatories shall be limited
o twenty-five (25) per side; and (iii) requests for production of documents will be limited to twenty-five (25)
per side; (iv) where efficient and reasonable and based upon the proponent's statement of the facts and
'ssues in dispute, a threshold deposition of not more than eight (8) hours (not to be included in the limitation
described above or imposed by the Arbitration Panel) or an initial disclosure may be obtained by a Party
seeking relevant information for the purpose of identifying the persons most likely to have the most
probative information bearing on the disputed facts and issues. If a Party elects a deposition under
subparagraph (d) below, the opposing Party shall make every reasonable, good faith effort to produce the
person most knowledgeable of the proponent's statement of facts and issues.
(e) Punitive damages; Expenses. The arbitrators will not have the authority to award punitive damages to either
Party. Each Party shall bear its own expenses, but the Parties will share equally the expenses of the
Arbitration.
(f) Award as Final; AppeaL The decision of the Arbitration Panel will be the sole and exclusive remedy between
the parties regarding any and all claims and counterclaims with respect to the subject matter of the
arbitrated dispute. The decision of the Arbitration Panel will not be appealable, will not be subject to
collateral review by any Court, and will not be used by the parties in any proceeding or forum that is not
subject to this Agreement with the only exception being that either party may appeal a final arbitration
decision to a federal court with jurisdiction, or alternatively to any appropriate judicial authority, where there
is a final decision in excess of $10 million and/or a decision that has a financial impact on the party's
operations in excess of $10 million.
(g) Matters Not Subject to Arbitration. The matters which, as referred to above, are not subject to the general
rule set forth herein regarding the arbitration of disputes include those referred to in Section 4.1 of this
Agreement, claims for preliminary injunctive relief, other pre -judgment remedies, and claims for Customer's
failure to pay for Services in accordance with this Agreement, which may be brought in a state or federal
court in the United States with jurisdiction over the subject matter and parties.
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 7
•
•
•
10.7 Severability; Waiver. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction
to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any
breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
10.8 Assignment Customer may not assign its rights or delegate its duties under this Agreement either in whole or
in part without the prior written consent of SBC, and any attempted assignment or delegation without such consent will
be void. SBC may assign this Agreement in whole or part to an Affiliate. SBC also may delegate the performance of
certain Services to third parties, including SBC's Affiliates. This Agreement will bind and inure to the benefit of each
party's successors and permitted assigns.
10.9 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand,
deposited with an ovemight courier sent by email, confirmed facsimile, or mailed by registered or certified mail, return
receipt requested, postage prepaid, in each case to the address of the receiving Party as listed on the Statement of
Work or at such other address as may hereafter be furnished in writing by either party to theather party. Such notice will
be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier
("Effective Date of Notice").
1010 Relationship of Parties. SBC and Customer are independent contractors and this Agreement will not establish
any relationship of partnership, joint venture, employment, franchise or agency between SBC and Customer. Neither
SBC nor Customer will have the power to bind the other or incur obligations on the other's behalf without the others prior
written consent, except as otherwise expressly provided herein.
1011 Entire Agreement; Counterparts; Originals. This Agreement, including all Exhibits, Addenda, and documents
incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to
the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations,
understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any
purchase order or other response by Customer shall be deemed objected to by SBC without need of further notice of
objection, and shall be of no effect nor in any way binding upon SBC. Once signed, any reproduction of this Agreement
made by reliable means (e.g., photocopy, facsimile) is considered an original. Except with respect to the SBC
Acceptable Use Policy, which SBC may change from time to time, this Agreement may be changed only by a written
document signed by authorized representatives of SBC and Customer in accordance with this Section. For purposes of
this Agreement, the term "written" means anything reduced to a tangible form by a party, including a printed or hand
written document, e-mail or other electronic format.
10.12 Interpretation of Conflicting Terms. In the event of a conflict between or among the terms in this Agreement,
the Statement of Work(s), the Acceptable Use Policy, and any other document made a part hereof, the documents shall
control in the following order: the Acceptable Use Policy, the Statement of Work, this Agreement and other documents.
Authorized representatives of Customer and SBC have read the foregoing and all documents incorporated therein and
agree to and accept such terms.
CUSTOMER SBC
Signature:
Print Name Dan Coody
Title: Mayor
Date: otiord
Signature:
Print Name: g 14.) tf•e..P A -Lb
Title: ISE I
Date: 03 2coC
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 8
Exhibill Dedicated Hosting Statement of Work (S.
This Statement of Work ("SOW") is made to the SBC E -Services ("SBC") Managed Hosting Services Agreement between SBC
and Customer (the "Agreement"), signed by Customer on 03/16/05. This Attachment is subject to and hereby incorporates by
reference, the terms and conditions set forth in the Agreement. The terms contained herein shall be in addition to those set
forth in the Agreement and to the extent possible, read consistently therewith. To the extent there is an irreconcilable conflict in
terms and conditions between this SOW and the Agreement, the terms and conditions set forth herein shall govern.
0
New Customer
Company Address
Existing Customer (if so, indicate number of remaining months in contract):
O.
Sales Channel
IN WITNESS WHEREOF, the parties hereto have executed this document.
City of Fayet
By:
Printed Name Dan Coody
Title: Mayor
Date: cP.-405
SBC
By:
?ft
Printed Name Mas51
Title: SE Pker—+ uvas.a.s94---
Date: 3/ I G12_o o
FOR SBC INTERNAL USE ONLY
Customer Account Number
Company Address
Customer Service Order Number
City, State
Sales Channel
Domain Name
I. TERM
60 Months.
II. CUSTOMER INFORMATION
A. Company Information
Company Name
City of Fayetteville
Company Address
113W Mountain
City, State
Fayetteville, AR
Domain Name
www.accessfayetteville.org
13 -Digit BTN
B. Technical or Primary Contact (Required)
Contact Name
Lesa Brosch
Title
Business Sys. Analyst
Street Address
113 W Mountain
Phone
479-575-8214
Room / Suite
Mobile
479-549-8052
City
Fayetteville
Pager
State
AR
Fax
ZIP Code
72701
Other
Country
USA
Email Address
Ibrosch@cilayetteville ar us
Preferred
Method
Contact
C. Secondary Contact (Optional)
Contact Name
Scott Huddleston
Title
Street Address
113 W Mountain
Phone
479-575-8320
Room / Suite
Mobile
479-263-8656
CONFIDENTIAL INFORMATION
This SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
Page 1 of 8
Exhibit_A_Dedicated Hosting SOW
10/11/2004 js6481
Exhigt: Dedicated Hosting Statement of Work (A)
City
Fayetteville
Pager
Business Sys. Analyst
State
AR
Fax
479-575-8214
ZIP Code
72701
Other
479-549-8052
Country
USA
Email Address
Ibrosch@ci.fayetteville.ar.us
D. Billing Contact (Required)
Contact Name
Lesa Brosch
Title
Business Sys. Analyst
Billing Address
113 W Mountain
Phone
479-575-8214
Room / Suite
214-576-7224
Mobile
479-549-8052
City
Fayetteville
Pager
479-466-5176
State
AR
Fax
Mick
ZIP Code
72701
Other
Rx900a@sbc.com
Country
USA
Email Address
Ibrosch@ci.fayetteville.ar.us
III. SBC INFORMATION
A. SBC Sales Contact (Sales Code required to process order)
Name
Position
Phone
Email Address
Sales
Code
Brian Cottrell
Out of Region (All other U.S. states)
Hosting Inside
Sales Specialist
214-576-7224
bc1859@txmail.sbc.com
International
Brad Shepard
TSE
479-466-5176
11s7892@sbc.coin
Mick
Maggi
ANI
479-571-6660
Rx900a@sbc.com
B. SBC Region (Required)
To select a region corresponding to where Customer is located, place an "X" next to the applicable region:
X
Southwest (MO, OK, KS, AR, TX)
East (CT)
West (CA, NV)
Out of Region (All other U.S. states)
Midwest (IL, IN, MI, 01-I, WI)
International
IV DEDICATED HOSTING ("DH") SERVICE PARAMETERS
A.
Startup Pack Dedicated Hosting
SBC shall provide a managed hosted production environment for Customer that includes:
• Managed network covering core Internet Data Center ( IDC") network and Internet Access from the server to
the Internet.
• Shared Firewall with predefined standard firewall rules as specified in the Dedicated Hosting Enhanced
Services Attachment.
• Preconfigured, standard build single server hardware with single power supply.
• Standard operating system (OS") build (Microsoft Windows Server 2003 Standard Edition or Red Hat Linux
Enterprise 3.0ES) with SBC required agents and no Tape Backup client software or services.
• Limited to unauthenticated Service Provider License Agreement (SPLA) for Microsoft Windows.
• Managed Monitoring Lite package as defined in the Dedicated Hosting Enhanced Services Attachment.
• One IP address for the Customer's server.
• 100 GB aggregate data transfer per month.
• No hardware or software options available other than selection of OS.
2. SBC shall perform the following deployment activities in support of Customer's hosted environment:
• Procurement, staging, configuration, setup, installation and turn -up of the system.
• Standard OS build including current security patches available at time of install.
• Provisioning of administrative logins for Customer access.
• Notification of Customer primary technical contact of completion of server provisioning see Section VIII of
this SOW for billing implications.
CONFIDENTIAL INFORMATION
SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
_Dedicated_Hosting_SOW Page 2 of 8 10/11/2004 js6481
This
Exhibit_A
•
ExhibiliDedicated Hosting Statement of Work (SOO
• SBC will not install third -party applications except for those expressly defined by SBC for remote
administration.
3. SBC will provide the following ongoing hosting and maintenance services:
• System monitoring as specified in the Dedicated Hosting Enhanced Services Attachment and Section VI of
this SOW.
• Network monitoring — bandwidth utilization, transfer rate, and network availability including latency and
packet -loss as set forth in SBC E -Services' Service Level Agreement.
• Physical monitoring and management — temperature, humidity, fire, flood, moisture, power and site security.
• Change management — tracking of all potential service impacting network, hardware, and system changes
through the SBC ticketing system.
• Hardware maintenance — responsible for notification, trouble isolation and resolution, including SBC -
determined need for system repair or replacement.
• Links to current OS patches, for elective installation by the Customer.
B. Biz or Performance Pak Dedicated Hosting
1.
SBC shall provide a managed hosted production environment for Customer that includes:
• Managed network covering core IDC network and Internet Access from the server(s) to the Internet.
• Dedicated Firewall with option for customizable firewall rules as specified in the Dedicated Hosting
Enhanced Services Attachment and Section VI of this SOW; default firewall rules will be used if not
otherwise specified.
• Hardware for one or two servers with single power supply, selected from supported products list with option
for multiple hard drives with RAID, depending on platform.
• Standard OS build (Microsoft Windows Server 2003 Standard Edition, Red Hat Linux Enterprise 3.0 ES or
Sun Solaris 9.0) with SBC required agents and Tape Backup client software.
• A10 Tape Backup package with 10 GB streamed backup traffic included monthly, with option to upgrade to a
larger A -Series Tape Backup package, as specified in Section VI of this SOW.
• Limited to unauthenticated Service Provider License Agreement (SPLA) for Microsoft Windows
• Managed Monitoring Lite package with option for Basic or Professional Managed Monitoring packages as
specified in the Dedicated Hosting Enhanced Services Attachment and Section VI of this SOW.
• The option to purchase Basic Website or Professional Website Metrics as defined in the Dedicated Hosting
Enhanced Services Attachment and Section VI of this SOW.
• One IP address with option for up to 26 additional IP addresses.
• 100 GB aggregate data transfer per month with option for additional bandwidth up to 500 GB monthly.
• Managed Dedicated Switch mandatory for two -server configurations.
• No clustering or load balancing services and no external direct attached, network attached or SAN attached
storage devices.
2 SBC shall perform the following deployment activities in support of Customer's hosted environment:
• Procurement, staging, configuration, setup, installation and turn -up of the system.
• Standard OS build including current security patches available at time of install.
• Provisioning of administrative logins for Customer access.
• Notification of Customer primary technical contact of completion of server provisioning; see Section VIII of
this SOW for billing implications.
• SBC will not install third -party applications except for those expressly defined by SBC for remote
administration.
3 SBC will provide the following ongoing hosting and maintenance services:
• System monitoring as specified in the Dedicated Hosting Enhanced Services Attachment and Section VI of
this SOW.
• Network monitoring — bandwidth utilization, transfer rate, and network availability including latency and
packet -loss as set forth in SBC E -Services' Service Level Agreement.
• Physical monitoring and management — temperature, humidity, fire, flood, moisture, power and site security.
• Change management — tracking of all potential service impacting network, hardware, and system changes
through the SBC ticketing system.
• Hardware maintenance — responsible for notification, trouble isolation and resolution, including SBC -
determined need for system repair or replacement.
This
CONFIDENTIAL INFORMATION
SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
_Dedicated_Hosting_SOW Page 3 of 8
Exhibit_A
10/11/2004 js6481
Exhilt Dedicated Hosting Statement of Work (S.)
• Links to current OS patches, for elective installation by the Customer.
• Tape Backup services as specified in the Dedicated Hosting Enhanced Services Attachment and Section VI
of this SOW
V. CUSTOMER ENVIRONMENT
A. Customer Service Overview
1 Type of Dedicated Hosting Customer Environment
To select an option, place an "X" in the appropriate box:
2 Managed Servers
The following is a general description of the managed servers to be provided by SBC (see Paragraph B of this
Section for detailed part numbers and itemized components):
Server Description
Server Option(s)
Quantity
Startup Pak DH customers are limited to a maximum of one (1) managed server. Biz and Performance Pak DH
customers are limited to a maximum of two (2) servers.
3 IDC Internet Bandwidth
100
Startup Pak
$5.00
Biz Pak (HP)
Biz Pak (Sun)
X
Performance Pak (HP)
per
Performance Pak (Sun)
2 Managed Servers
The following is a general description of the managed servers to be provided by SBC (see Paragraph B of this
Section for detailed part numbers and itemized components):
Server Description
Server Option(s)
Quantity
Startup Pak DH customers are limited to a maximum of one (1) managed server. Biz and Performance Pak DH
customers are limited to a maximum of two (2) servers.
3 IDC Internet Bandwidth
100
Monthly data transfer (Gb per month)
$5.00
Monthly transfer overage rate ($ per Gb)
Burstable bandwidth (951fl percentile data
Burstable bandwidth overage rate ($
per
transfer rate in Mb/s)
$
Mb/s)
B. Bill of Materials
The following is the Bill of Materials ("BOM") for the Customer's managed hosting environment:
(insert BOM here, including part number, item description and quantity]
Quantity Part # Description
1 Perf Pack - HP ProLiant DL 380 G3
1 Single Xeon 3.06 GHz (default)
1 Red Hat Linux 3.0 - package
1 RAM:1 GB (default)
1 3x72 GB SCSI (default)
1 2-port7781 NIC
1 Monitoring Lite
1 A50 (Upgrade From A10)
1 Netscreen 5GT (Default)
1 1 Additonal IP Address
1 DALLAS — IDC Provisioning
Customer — 101688 - Upgrading to new server, replacing DWH28
A. DNS Hosting Configuration
Domain Name
Host Name
Alias
Other
CONFIDENTIAL INFORMATION
This SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
Page 4 of 8
Exhibit Afiedicated Hosting_SOW
10/11/2004 js6481
Exhibit Dedicated Hosting Statement of Work (SO)
C. Domain Instructions
Customer is responsible for registering the Customers domain(s). Instructions for SBC with respect to domain
configuration are the following:
D. Business Email Instructions
IP Address
Dedicated Firewall Package
Domain Name
NetScreen 5GT (Default
Email Contact
for Biz and Performance Paks)
Additional Email Accounts
NetScreen 25
Additional Email Storage
Cisco_PIX 515R _
VI. ENHANCED SERVICES
A. Firewall Services
To select an option, enter the quantity ordered into the appropriate box:
Shared Firewall (For Startup Pak Only)
Refer to the Dedicated Hosting Enhanced Services Attachment for additional service details. Shared Firewall is
available for Startup Pak DH customers only, and Dedicated Firewall is available for Biz and Performance Pak DH
customers only. Dedicated Firewall Services requires completion of the Firewall Services Questionnaire.
B. Managed Monitoring (Servers)
To select an option, enter the quantity ordered into the appropriate box:
1
Dedicated Firewall Package
1
NetScreen 5GT (Default
System detail report
for Biz and Performance Paks)
System CPU detail
NetScreen 25
Cisco_PIX 515R _
Refer to the Dedicated Hosting Enhanced Services Attachment for additional service details. Shared Firewall is
available for Startup Pak DH customers only, and Dedicated Firewall is available for Biz and Performance Pak DH
customers only. Dedicated Firewall Services requires completion of the Firewall Services Questionnaire.
B. Managed Monitoring (Servers)
To select an option, enter the quantity ordered into the appropriate box:
1
Lite Monitoring
report
Basic Monitoring
System detail report
Professional Monitoring •
• For Professional Monitoring, select up to three (3) additional detailed report sets from the following six (6) options by
placing an "X" in the appropriate box:
Refer to the Dedicated Hosting Enhanced Services Attachment or additional service details. Lite Monitoring is
included as the base monitoring level for all DH customers Biz or Performance Pak DH customers may upgrade to
one of the other Managed Monitoring packages. Startup Pak DH customers are restricted to Lite Monitoring only.
CONFIDENTIAL INFORMAnoN
This SOW is for use by authorized employees of the patties hereto only and is not for general disttibution within or outside
their companies.
Exhibit A_Dedicated Hosting SOW Page 5 of 8
10/11/2004 js6481
System interface detail
report
System detail report
System CPU detail
report
System disk detail report
System disk partition report
Process set detail report
Refer to the Dedicated Hosting Enhanced Services Attachment or additional service details. Lite Monitoring is
included as the base monitoring level for all DH customers Biz or Performance Pak DH customers may upgrade to
one of the other Managed Monitoring packages. Startup Pak DH customers are restricted to Lite Monitoring only.
CONFIDENTIAL INFORMAnoN
This SOW is for use by authorized employees of the patties hereto only and is not for general disttibution within or outside
their companies.
Exhibit A_Dedicated Hosting SOW Page 5 of 8
10/11/2004 js6481
Exhibit Dedicated Hosting Statement of Work (SOO
C. Tape Backup Services
To select an option, enter the quantity ordered into the appropriate box:
1
A10
1
A50
Per GB fee for monthly streamed backup traffic overages
A100
Basic Website Metrics
A250
A500
A1000
1
Total number of servers to be provisioned for Tape Backup Services
No. of
Domains
$5
Per GB fee for monthly streamed backup traffic overages
i
Refer to the Dedicated Hosting Enhanced Services Attachment for additional service details. Tape Backup Services
are available for Biz or Performance Pak DH only; Startup Pak DH customers are not eligible. Biz or Performance
Pak DH packages include A10 Tape Backup by default. Tape Backup Services requires completion of a Tape
Backup Questionnaire.
D. Website Metrics Services
To select an option, enter the quantity ordered into the appropriate box:
Package
No. of Servers
No. of
Domains
No. of Filters
No. of Profiles
300 GB per month
Basic Website Metrics
500 GB per month
Professional Website Metrics
Refer to the Dedicated Hosting Enhanced Services Attachment for additiona service details. Website Metrics
Services are available for Biz or Performance Pak DH only; Startup Pak DH customers are not eligible Biz or
Performance Pak DH packages include Basic Website Metrics by default. Website Metrics Services requires
completion of a Website Metrics Questionnaire.
E. Monthly Bandwidth Transfer Rate (option only for Biz and Performance Paks)
To select an option, place an X into the appropriate box;
X
100 GB per month (Default, bundled with Package Price)
200 GB per month
300 GB per month
500 GB per month
VII. RESPONSIBILITIES
A. Customer Responsibilities
Customer responsibilities include the following:
• Customer shall provide/develop, install, configure, manage, and maintain/support all content and software
necessary for their application services, to include Web servers, FTP servers and remote management
clients.
• Customer is responsible for any malfunction, delays, downtime, or other negative impacts to Service caused
by Customer software or applications.
• Customer is responsible for performing their own operating system patch management, anti-virus, anti -spam
and server security management, including Virtual Hands charges for system rebuilds resulting from
operating system or software related attacks, except for specific SBC -provided services identified in the
Operating System Management Attachment
B. SBC Responsibilities
SBC responsibilities include the following:
CONFIDENTIAL INFORMATION
This SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
Exhibit A_Dedicated Hosting SOW Page 6 of 8 10/11/2004 js6481
Exhibit" Dedicated Hosting Statement of Work (SC.
• Provide 24x7 Customer care and support.
• Vendor coordination for all hardware and software under its responsibility.
• Staff the SBC IDC with trained engineers who are capable of providing professional installation for Customer
network and server hardware.
• Provide as much notice as is reasonably practicable prior to commencing any emergency and/or mandatory
maintenance of the Customer environment.
• Monitoring availability of all SBC managed systems utilizing the SBC E -Services services network.
• SBC is not responsible for any downtime related to application malfunction, development mishaps content
from customer, software exploits in customer's application, or non -SBC managed networks.
• SBC will utilize change management procedures that are consistent with industry standards to apply
scheduled and emergency patches to the customer environment. In the event that customer opts to veto a
patch that SBC recommends for implementations in the production environment in order to address critical
operations or security -related issues, SBC cannot to be held responsible for any services level metrics or
security comprises that arises out of the vetoed omission of this patch.
VIII. BILLING TERMS
A. Setup Fees and Recurring Charges
The following is a summary for non-recurring charges and monthly recurring charges for all Services ordered, as
reflected in this SOW:
Non -Recurring Charge (NRC)
$ 0.00
Monthly Recurring Charge (MRC)
$ 1,175 — 60 month
agreement
Note that this pricing reflects the configuration and features selected by Customer as of the date of this SOW. Any
additions to the variables, options or Service elements that may be requested at a future date may affect these fees.
B. Overage Fees and Charges
1. Bandwidth: Customers who have transfer rate bandwidth, overage charges include, but are not limited to, data
Transfer Above Limit according to the entitlements and rates set forth in Section V of this SOW. Customers who
have burstable bandwidth will be billed for additional bandwidth usage at the Variable Bursting Rate based on
the 95th percentile measurement and billing policy, according to the entitlements and rates set forth in Section V
of this SOW. SBC will take a sample of the customer's Internet traffic every five minutes for the duration of the
month. SBC will discard the top 5% of the customer samples and bill the customer at the 95th percentile The
variable burstable bandwidth portion will be billed in arrears.
2. Enhanced Services: Usage -based overage charges apply for the following Enhanced Services; see the
Dedicated Hosting Enhanced Services Attachment for additional details:
• Firewall Services — labor hours for rule changes beyond the initial included three (3) per month, billed as
Premium Virtual Hands.
• Tape Backup Services — monthly streamed backup traffic in excess of included allotment (per GB), labor
hours for restores in excess of included allotment, and number of tape copies requested per month.
• Website Metrics Services — ad hoc reports requested by Customer, billed as Premium Virtual Hands.
C. Service Commencement Date
The Service Commencement Date for this SOW will be the date on which Services provided by SBC under this SOW
are made available to the Customer, as defined by the date on which SBC provides notification to Customer that
provisioning of the Customer's hosting environment has been completed. The contract term and billing will begin on
the Service Commencement Date. Without incurring any obligation or liability for SBC, the following is the targeted
Service Commencement Date:
Targeted Service Commencement Date
D. Contract Renewals
Contract renewal for managed hardware, software or operating systems (OS) cannot take place for components that
have been identified by the vendor as "end -of -life". Customer migration to current and supported components may
be required at SBC's discretion, prior to contract renewal.
E. Statement of Work Changes
This SOW shall be treated as a comprehensive, self-contained document containing a description of the full scope of
Managed Hosting services to be provided by SBC. Any modifications to services identified in this SOW or additions
CONFIDENTIAL INFORMATION
This SOW is for use by authorized employees of the parties hereto only and is not for general distribution within or outside
their companies.
Exhibit A_Dedicated Hosting_SOW Page 7 of 8 10/11/2004 js6481
•
•
1
Exhibit B
SBC Service Level Agreements (SLAs)
SBC PremierSERVen Hosting solutions provide a vault -like facility with abundant reliable bandwidth provided through a
Cisco powered network and always -on power where Customers can house their mission -critical servers and databases.
The SBC Internet Data Centers (IDCs) are staffed 24 X 7 X 365 by highly trained and certified engineers that monitor all
security network, and power systems to ensure maximum uptime. Customers get a solution that is optimized for their
business needs. This document provides information regarding SBC E-Servicescomprehensive service level
commitments.
Definitions
For purposes of this Agreement, the following definitions shall apply:
(1) "Ambient Room Temperature" shall mean the temperature as measured by ambient room probes mounted on
the columns and walls of the IDC.
(ii) "Core IDC Network - shall mean the network from the customer -facing port at SBC E -Services' serving switch
to the outbound port of the Internet edge routers (Ded routers) that connects to the SBC Internet Bandwidth. The
SLA will cover all links in between. Redundant ports will have diverse paths and terminate on separate switches.
"SBC Internet Backbone" — shall mean the physical SBC Internet Backbone MegaPOPs that serve as key
traffic aggregation points on the SBC Internet Backbone network. MegaPOPs connect to other ISPs' and Content
Providers' networks, interconnect to other SBC MegaPOPs via SBC Internet Backbone, and interconnect to SBC
MiniPOPs. MegaPOPs located in states where SBC E -Services' affiliates are not authorized to provide InterLATA
service are excluded from the SLA measurements.
(iii) "Customer Site Environment" - shall mean the platform from which Customer operates its applications within
the Internet Data Center.
(iv) -Downtime"- shall mean failure to meet the standards set forth below with respect to latency, packet loss, core
network, and power availability.
(v) "Latency" shall mean the average response time in milliseconds for a response path. At each polling interval,
the response agent sends packets from the source to the destination. The average response is the total response
time for all packets that returned successfully divided by the number of packets that returned successfully.
(vi) "Network Availability" shall mean the measurement of the ability of a source to obtain a response from a
destination. A service is unavailable when the failed attempts (Packet L ss) rate during a polling interval is 100%.
(vii) "Packet Loss shall mean a single packet of data that does not reach the router at the POP(s) designated by
SBC E -Services from the IDC, but shall not include intenfionally dropped packets due to Customer sending data
faster than the Internet bandwidth that it has purchased. Network packet delivery guarantees ensure that data
transmissions between recipient and SBC E -Services are sound and reliable.
(viii) "Power Availability" shall mean Electrical Power to outbound port on Customer serving power plugs in the
Customer areas within the IDC. The Power Availability SLA only applies to Customers utilizing both the primary
and redundant power plugs for each device located in the Customer areas of the IDC.
Service Levels
The following SLAs apply to all SBC PremierSERV Hosting Customers in the SBC IDCs.
• Response Time - SBC will respond to any service impacting issue within 15 minutes for Dedicated and Data
Center Hosting Customers, and within 5 minutes for Advanced Hosting Customers.
• Power Availability - Power at the Data Center will be at 100% availability.
• HVAC Availability - Ambient Room Temperature will not exceed 75 Degrees F in the server area. Relative
humidity in the IDC will not exceed 55% in the server area.
The following SLAs apply to SBC PremierSERV Hosting Customers that have purchased bandwidth with a
redundant port from SBC E -Services:
• Network Availability - The Core IDC Network and SBC Internet Backbone will have a combined availability
of 99.97%. The combined network availability SLA metric is the average of the Core IDC Network
• Availability and the SBC Internet Backbone Network Availability. Network Availability for the SBC Internet
Backbone is based upon the monthly average between SBC -selected MegaPOP endpoints on the SBC
Internet Backbone.
• Aggregate Network Latency - will not exceed Core IDC network latency of 30 milliseconds plus SBC
Internet Backbone network latency of 50 milliseconds or a total of 80 milliseconds. Latency will be
measured by averaging samples taken during a calendar month.
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 9
•
•
•
•
• Packet Loss—During any calendar month, packet loss on the SBC Internet Backbone will not exceed 0.3%
based upon monthly average. SBC E-Servicespacket loss warranty is averaged between SBC -selected
MegaPOP endpoints within the SBC Internet Backbone.
The following SLA shall apply to SBC Dedicated and Advanced Hosting Customers only:
• Site Availability – Excluding exceptions, Customer's Site Environment will be available 99.9% of the time
each month for SBC Dedicated Hosting and 99.99% of the time each month for SBC Advanced Hosting.
Exceptions
Although scheduled maintenance is not expected to impact the network, power or other service levels, the Service
Level Agreement is not effective during scheduled maintenance periods, in conditions of Force Majeure, or for
Customer enabled faults. Customer is responsible for all content and applications that reside on the server
therefore, any downtime or failure to meet an SLA that is directly or indirectly caused by content, applications,
Customer Equipment, Customer or third party actions or inaction, or third party equipment not within the sole
control of SBC E -Services will not be covered by these SLAs
Core Component Failure
Within 15 minutes of core IDC component failure (5 minutes for Advanced Hosting Customers), Customers will be
notified via bulk email or public web site regarding any potential downtime. Core component failure is defined as a
failure of any component of the IDC that has the potential of effecting more than one customer.
Individual Customer Failure
For individual Customer failure, Customer will be notified via fax, pager, email, or phone within 15 minutes of
failure (5 minutes for Advanced Hosting Customers). Individual customer failure is defined as a failure of any
component of the IDC that will only affect an individual Customer (cabling, port, etc). This will include any failure
resulting in inability of IDC operations to "test" customer server via a ping watch (including reasons outside of IDC
control, i.e. Customer server failure, etc).
Service Credits
Service Credits for missed SLAs, except Network Availability, shall be an amount equal to the pro -rata recurring
charge for one day of Service. A Service Credit schedule is attached hereto as Attachment A for the Network
Availability SLA. Customer will 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 incidents that occur during
such month.
In order to receive a Service Credit, Customer must notify SBC within thirty (30) calendar days from the time
Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit
Customer's right to receive a Service Credit.
Time related to Service Credit requests will be measured from the issuance of a trouble ticket to trouble resolution.
Trouble tickets will be issued upon Customer's call to the IDC to report Downtime.
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 10
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Attachment A to Exhibit 13
to SBC E -Services Service Level Agreements
Network Availability Service Credit Matrix
From
To
Credit Days
97.79%
99.96%
99.90%
1
99.89%
99.85%
1.5
99.84%
99.80%
2
99.79%
99.75%
2.5
99.74%
99.70%
3
99.69%
99.65%
3.5
99.64%
99.60%
4
99.59%
99.55%
4.5
99.54%
99.50%
5
99.49%
99.45%
5.5
99.44%
99.40%
6
99.39%
99.35%
6.5
99.34%
99.30%
7
99.29%
99.25%
7.5
99.24%
99.20%
8
99.19%
99.15%
30
8.5
99.14%
99.10%
9
99.09%
99.05%
9.5
99.04%
99.00%
10
98.99%
98.95%
10.5
98.94%
98.90%
11
98.89%
98.85%
11.5
98.84%
98.80%
12
98.79%
98.75%
12.5
98.74%
98.70%
13
98.69%
98.65%
13.5
98.64%
98.60%
14
98.59%
98.55%
14.5
98.54%
98.50%
15
98.49%
98.45%
15.5
98.44%
98.40%
16
98.39%
98.35%
16.5
98.34%
98.30%
17
98.29%
98.25%
17.5
98.24%
98.20%
18
98.19%
98.15%
18.5
98.14%
98.10%
19
98.09%
98.05%
19.5
98.04%
98.00%
20
97.99%
97.95%
20.5
97.94%
97.90%
21
97.89%
97.85%
21.5
97.84%
97.80%
22
SRC E -SERVICES CONFIDENTIAL AND PROPRIETARY
From
To
Credit Days
97.79%
97.75%
22.5
97.74%
97.70%
23
97.69%
97.65%
23.5
97.64%
97.60%
24
97.59%
97.55%
24.5
97.54%
97.50%
25
97.49%
97.45%
25.5
97.44%
97.40%
26
97.39%
97.35%
26.5
97.34%
97.30%
27
97.29%
97.25%
27.5
97.24%
97.20%
28
97.19%
97.15%
28.5
97.14%
97.10%
29
97.09%
97.05%
29.5
97.04%
97.00%
30
Page 11
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Exhibit C
IP Address Management Guidelines
(Only needed if additional IP addresses are being issued)
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 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 goveming 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 customers 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.
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 12
1
1
1
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Number of IP Addresses Requested (to select an option, place an "X" next to the desired offering)
# of 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.
I Do you have client machines that do not need a fixed IP address? 1 ffes/Not
2) Are you employing the web hosting services for primary or secondary DNS?
If so, DNS servers meet ARIN justifications for hard -coded IP address implementation.
IAre you employing the webhosting services for primary or secondary DNS? 1 Dies/Nol
3) Are you installing SSL certificates for secure transactions?
f so, SSL cert providers require a hard -coded IP address Therefore this falls into adequate ARIN
ustification.
IAre you installing SSL certificates for secure transactions?
Ies/Illo
4) Are you employing Mail or Database services on your dedicated Web hosting 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.
IAre you employing Mail or Database services on your dedicated Web hosting server? I fees/No
IP Justification Form
Initial
SBC E -SERVICES CONFIDENTIAL AND PROPRIETARY Page 13