ASP Services Agreement

WEST Contract: 9800051560

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USi Agreement Number: 008

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IMAP AGREEMENT



USinternetworking, Inc. ("USi"), a Delaware corporation w ith its principal office located at One USi Plaza, Annapolis, MD 21401-7428 and U S WEST INC. AND ITS AFFILIATES ( "Client"), a Delaware corporation with its principal office located at 1800 CALIFORNIA, DENVER CO 80111 hereby agree that the following term s and conditions will apply to each iMAP Solution provided under this iMAP Agreement ("Agreement").





SCOPE OF SERVICE



1.1 SERVICES

USi will provide the services as defined in individual Product

Schedules which will be mutually agreed upon, attached hereto and

incorporated herein as Exhibit A. The Product Schedules may be modified

by mutual written agreement. Changes or additions to work performed

under each Product Schedule may require changes in the resources

provided by USi and may result in additional costs or charges in each

Product Schedule.

1.2 PRODUCT SCHEDULES

Each Product Schedule will become a part of this Agreement, and, unless

otherwise clearly specified in writing, the terms and conditions of

each Product Schedule shall be independent of and shall have no impact

upon, the provisions of any other Product Schedule.

1.3 ADDITIONAL SERVICES

Client may order additional iMAP Solutions or add on to existing iMAP

Solutions by contacting USi. USi will send Client a Product Schedule,

based on USi's formal requirements analysis and/or proposal for the

additional services, specifying the terms of the iMAP Solution,

including the payment(s) due for each ordered item. Client may accept

the terms of the iMAP Solution by signing that Product Schedule and

returning it to USi. All executed Product Schedules will become part of

this Agreement and will be covered by all of this Agreement's terms and





DEFINITIONS



2.1 "ACCEPTABLE USE POLICY" shall mean USi's policy on the use of its

Global Network. The Acceptable Use Policy is incorporated by reference

as Exhibit B.

2.2 "ADDENDA" shall mean any written document executed by both parties

which modifies the terms of this Agreement or any executed Product

2.3 "AFFILIATES" shall mean any company controlling, controlled by or under

common control of Client.

2.4 "AGREEMENT" shall mean this iMAP Agreement, any and all Exhibits

attached hereto and all Product Schedules attached simultaneously with

the execution of the Agreement or agreed upon and executed subsequent

2.5 "CONSULTING AND IMPLEMENTATION SERVICES" shall mean the services

provided by USi as part of the iMAP Solution and may be set forth in

the Product Schedule as applicable.

2.6 "CONTENT" means any and all text, multimedia or images (graphics, audio

and video), data and the like provided by Client and installed on a

server, which shall be subject to the terms and conditions set forth in

the Product Schedule and Acceptable Use Policy.

2.7 "CUSTOMIZATION" shall mean any customized deliverable created by USi as

part of the iMAP Solution.

2.8 "DOCUMENTATION" shall mean the Software Application user manual(s) and

any other materials supplied by USi concurrently with the delivery of

and for use with the iMAP Solution. 2.9 "GLOBAL NETWORK" shall mean USi's Internet-based data center and

2.10 "HARDWARE" shall mean any computing or networking equipment USi uses

and/or provides to Client for its use as part of the iMAP Solution. 2.11 "iMAP SOLUTION" shall mean the collective bundling of any and all

Consulting and Implementation Services, Customization, access to the

Global Network, Hardware and Software Application(s), as outlined in

each executed Product Schedule.



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[CONFIDENTIAL TREATMENT] means that certain confidential information has

been deleted from this document and filed separately with the Securities

and Exchange Commission.





2.12 "PRODUCT SCHEDULE" shall mean a written order for any iMAP Solution

accepted by USi and executed by both parties, which shall be subject to

the terms and conditions of this Agreement and which, at a minimum,

shall contain a description of the work to be undertaken and the

obligations and responsibilities of each party related to that Product

2.13 "SLA" shall mean the Service Level Agreement specified in each Product

2.14 "SOFTWARE APPLICATION" shall mean the Third Party computer software USi

provides to Client for its use as part of the iMAP Solution. 2.15 "THIRD PARTY" shall mean any natural person or legal entity other than

USi and Client. 2.16 "USi SOFTWARE" shall mean certain software which was developed by USi

independently of this Agreement or pursuant to the terms of this

Agreement as may be required for customization.



3. LICENSE 3.1 RIGHTS GRANTED

In accordance with the terms of this Agreement, USi grants to Client a

limited, nontransferable, non-exclusive license to use the iMAP

Solution included in the executed Product Schedules attached hereto for

the sole purpose of supporting the operations of Client's business as

described in the Product Schedule. Notwithstanding anything to the

contrary, Client may not use the iMAP Solution in a resale capacity, to

process and/or analyze the data of a Third Party as a service bureau or

on any Hardware other than as set forth in the relevant Product

3.2 OWNERSHIP

All components of the iMAP Solution provided to Client shall remain at

all times the property of USi and/or its Third Party Software

Application vendors and contain trade secrets and other valuable

proprietary information of USi and/or its Third Party vendor. 3.3 EFFECTIVE DATE

This Agreement shall be effective on the date it is executed by USi,

and shall remain in effect for the Term unless terminated in accordance

with the provisions set forth in this Agreement. 3.4 SOFTWARE

Client acknowledges and understands that USi may provide to Client (a)

USi Software and/or (b) Software Applications owned by Third Parties

which USi uses under license agreements from Third Parties defined in

Section 2.14 as "Software Application." Client acknowledges that (a)

title to all such USi Software and



Proprietary & Confidential





Software Application remains with and is subject to the proprietary

rights of USi or its Third Party vendor, and (b) such USi Software and

Software Application contain trade secrets and other valuable

proprietary information of USi or its Third Party vendor.

3.5 RESTRICTIONS

Client agrees it shall not: (a) alter or modify the USi or Software

Application or any part thereof; (b) copy or duplicate, or permit a

Third Party to copy or duplicate, the USi Software or Software

Application or any part thereof or (c) reverse engineer, decompile or

disassemble USi Software or Software Application, unless otherwise

provided in the relevant Product Schedule. 3.6 NON-TRANSFERABLE

Client agrees not to license, sell, transfer, lease or disclose the USi

Software or Software Application to any Third Party.



4. TERM 4.1 AGREEMENT TERM

The term of this Agreement (the "Term") shall commence on the Effective

Date and shall expire three (3) years thereafter unless (a) either

terminated pursuant to the terms of this Agreement or (b) extended by

mutual written agreement. 4.2 PRODUCT SCHEDULE

Each individual Product Schedule shall include a period of performance.

In the event that any Product Schedule period of performance extends

beyond the Term, the Term shall automatically be extended and remain in

effect until such time as the Product Schedule period of performance is



5. PAYMENTS 5.1 FEES

As compensation for the license of the iMAP Solution granted to Client

and the provisions of services as applicable, Client agrees to pay the

amount(s) specified in each executed Product Schedule. Any fee

specified in a Product Schedule will only remain in effect until the

date specified in the Product Schedule. 5.2 PAYMENT TERMS

Unless otherwise specified in the Product Schedule, payments will be

due and payable to USi within forty-five (45) days of the date of USi's

invoice. Such invoices will be generated in accordance with the terms

specified in each Product Schedule. USi reserves the right, in USi's

absolute discretion, to perform a credit check on Client. 5.3 TAXES

Client shall be responsible for the payment of all taxes associated

with this Agreement or its use of the iMAP Solution (other than taxes

based on USi's net income), including, but not limited to, personal

property taxes, import taxes, taxes on telecommunication services,

information services, data processing services or similar governmental

charges that may be assessed by any jurisdiction, whether based on

gross revenue or delivery of products or services. If USi is required

to pay any such taxes directly, Client shall, upon receipt of USi's

invoice, reimburse USi for any amount that USi has paid.

Notwithstanding the above, Client shall not be required to pay those

taxes from which Client is legally exempt. 5.4 INSURANCE

Client shall obtain and maintain adequate liability insurance and

insurance against loss or damage to USi's Hardware located on Client's

premises. Upon request, Client shall furnish to USi a Certificate of

Insurance or other evidence of insurance coverage. 5.5 INTEREST

Any payments not made when due will be subject to an interest charge of

one percent (1%) per month, unless applicable law specifies a lower

lawful rate of interest, in which case past due payments shall bear

interest at that lower maximum rate. Interest shall not be applied to

any invoice during which time such invoice is being disputed by Client.



6. WARRANTIES 6.1 PERFORMANCE WARRANTY

USi warrants that: (a) work performed to complete any Product Schedule

will be performed by qualified personnel in a professional, workmanlike

manner, consistent with the prevailing standards of the industry; and

(b) it will use commercially reasonable efforts to complete each

Product Schedule. 6.2 AUTHORITY WARRANTY

USi warrants that it has the authority to license the Software

Application(s) for the purposes set forth in this Agreement and the

Product Schedule. Client acknowledges and agrees that its sole and

exclusive remedies for breach of this warranty are set forth in Section

8.1 of this Agreement. 6.3 LIMITATION

Unless otherwise expressly provided herein or in a Product Schedule,

neither USi nor any of its service providers, licensors, employees or

agents warrant (a) that the functions contained in the iMAP Solution

provided hereunder will meet Client's requirements or (b) that the

operation of the iMAP Solution will be uninterrupted or error free or

(c) that the products or services will have the capacity to meet the

demand during specific hours. USi will not be liable for any damages

that Client may suffer arising out of use, or inability to use, the

products or services provided hereunder. USi will not be liable for

unauthorized access to or alteration, theft or destruction of Client's

data files, programs, procedures or information through accident,

fraudulent means or devices, or any other method, unless such access,

alteration, theft or destruction is caused as a result of USi's gross

negligence or intentional misconduct. 6.4 YEAR 2000 WARRANTY

USi warrants that its iMAP Solutions, as provided by USi are capable of

processing, recording, storing and presenting data containing

four-digit years after December 31, 1999 in substantially the same

manner and with substantially the same functionality as before January

1, 2000. USi assumes no responsibilities or obligations to cause Third

Party products or services to function with the iMAP Solutions. USi

will not be in breach of this warranty for any failure of the iMAP

Solutions to correctly create or process date-related data if such

failure results from the inability of any software, hardware, or

systems of Client or any Third Party either to correctly create or

process date-related data in a manner consistent with the method in

which the iMAP Solution creates or processes date-related data. In the

event of a breach of this warranty, Client's sole and exclusive remedy

and USi's sole liability shall be to use its commercially reasonable

efforts to correct errors that cause breach of this warranty or if USi

is unable to make the corrections within a reasonable period of time

considering the severity of the error and its impact on the Client as

determined by USi, Client shall be entitled to terminate this Agreement

pursuant to Section 10.1. 6.5 EXCLUSION

THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES

AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT

LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A

PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.





Proprietary & Confidential





7. CLIENT CARE 7.1 CLIENT ASSISTANCE CENTER

Under the Client Care program, USi will provide a level of service

concerning Client's iMAP Solution as outlined in each specific Product

Schedule. In all cases, Client will have availability to USi's Client

Assistance Center twenty-four (24) hours per day, seven (7) days per

week, three hundred sixty-five (365) days per year. Client acknowledges

and agrees that all calls into the Client Assistance Center are public

and may be monitored and/or recorded for quality control purposes. 7.2 SERVICE LEVEL AGREEMENTS

USi will provide a Service Level Agreement with each iMAP Solution

which will be stated in each executed Product Schedule. Specific

remedies for USi's failure to meet the applicable Service Level

Agreement will be stated in each executed Product Schedule. 7.3 MAINTENANCE WINDOW

USi has established set maintenance windows on Tuesday and Friday

mornings between the hours of 2am and 6am (ET). During this time, USi

reserves the right to take down a Client's server(s) in order to

conduct routine maintenance checks to both software and hardware. If a

Client's server(s) will be down for more than two (2) minutes within

this pre-established window, USi will advise Client of such prior to

any scheduled maintenance downtime. USi will not be responsible for any

damages or costs incurred by Client, if any, for scheduled down time.

USi reserves the right to change its maintenance window upon prior

notice to Client.



8. INDEMNITY OBLIGATIONS 8.1 USi INDEMNITY OBLIGATIONS

USi will (a) defend Client against any final claim that the products or

services delivered by USi infringe a patent, copyright, trade secret,

or other proprietary right in the United States; and (b) pay costs,

damages and attorney's fees finally awarded against Client as a result

of such claims.

(a) Infringement Remedies. In addition to defending Client as

stated above, if a claim occurs, or in USi's opinion, is

likely to occur, USi will, at its sole option and expense,

(subject to its agreement with Software Application vendors)

either (i) procure Client the right to continue using the

Software Application in question, or (ii) replace or modify

the infringing Software Application so that it becomes

noninfringing; provided that the Software Application's

functionality are not materially and adversely affected by

such replacement or modification. If neither of these

alternatives is reasonably available, Client shall return the

Software Application at issue and USi will refund the amount

paid by Client to USi for such Software Application as

depreciated. The depreciation shall be an equal amount per

year over a three (3) year life commencing with the date of

(b) Exclusions. USi shall not be liable for infringement claims

based on (i) the combination, operation or use of Software

Application with hardware, data or software not supplied by

USi if the claim would have been avoided by use of other

hardware, data or software; or (ii) modifications to Software

Application if the modifications were not made by USi. 8.2 CLIENT INDEMNITY OBLIGATIONS

Client will (a) defend USi against any claims by Third Parties arising

from Client's use of Software Application or iMAP Solution provided by

USi hereunder excluding, however, (i) proprietary rights infringement

claims under Section 8.1; and (ii) claims for bodily injury or damages

to tangible personal property proximately caused by the negligent act,

error or omission of USi and (b) pay costs, damages and attorney's fees

finally awarded against USi and any settlement costs incurred as a

result of such claims. 8.3 CONDITIONS

The indemnification obligations set forth above in Sections 8.1 and 8.2

are contingent upon compliance with the following conditions by the

party seeking indemnification:

(a) Providing prompt written notice of a claim within twenty (20)

days of its service upon Client;

(b) Providing all information

and evidence within its control which is necessary for the

indemnifying party to conduct a defense; and

(c) Providing the indemnifying party with sole control of the

defense and all related settlement negotiations. However, the

non-indemnifying party may participate in the defense or

settlement of the claim at its own expense. 8.4 LIMITATIONS OF REMEDY

This Section 8 states the entire obligations of the parties with

respect to indemnity or infringement of copyrights, patents, trade

secrets or other intellectual property or proprietary rights.



9. LIMITATION OF LIABILITY 9.1 LIMITATION OF LIABILITY

USi's entire liability and Client's exclusive remedies are set forth in

this Section 9, Section 6 WARRANTIES, Section 8 INDEMNITY OBLIGATIONS

and Section 10 TERMINATION. USi's liability to Client for damages other

than those set forth in Section 6, Section 8 or Section 10 (regardless

of the form of action, whether in contract, tort, warranty or

otherwise) shall in no event exceed the monthly fee paid by the Client

to USi under this Agreement for the one (1) month period immediately

preceding the event which caused the damage or injury. 9.2 DISCLAIMER OF DAMAGES

USi shall not be liable for any special, incidental, indirect or

consequential damages or for the loss of profit, revenue, or data, even

if USi shall have been advised of the possibility of such potential

loss or damages. Client further agrees that USi shall not be liable for

any claim or demand against Client or USi by any Third Party, except to

the extent expressly covered under Section 8 INDEMNITY OBLIGATIONS or

Section 9 LIMITATION OF LIABILITY.



10. TERMINATION 10.1 TERMINATION FOR BREACH

Either party may terminate this Agreement immediately upon written

notice to the other party if the o ...