Facilities and Administrative Support Agreement - 范本
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FACILITIES AND ADMINISTRATIVE SUPPORT AGREEMENT
THIS FACILITIES AND ADMINISTRATIVE SUPPORT AGREEMENT dated as of October 27, 1999 is made between CMGI, Inc. ("CMGI"), a Delaware corporation, and NaviSite, Inc. ("NaviSite"), a Delaware corporation.
Preliminary Statement
NaviSite desires to obtain administrative and other services from CMGI, and CMGI is willing to furnish or make such services available to NaviSite.
By this Agreement, CMGI and NaviSite desire to set forth the basis for CMGI's provision of services of the types referred to herein.
Agreements
IT IS MUTUALLY agreed by CMGI and NaviSite (collectively, the "Parties") as follows:
1. Provision of Services. Beginning on the date of this Agreement, CMGI will provide or otherwise make available to NaviSite those CMGI-supplied services and third-party-supplied services paid for by CMGI on the bases set forth on Schedule A and Schedule B attached hereto and consistent with the parties' practices as of the date hereof (collectively, the "Services").
2. Billing and Payment. CMGI shall submit monthly invoices to NaviSite for the Services, and NaviSite shall make payment within 30 days after its receipt of such invoices. Each invoice shall be itemized by the Service provided.
3. Term and Termination. The initial term of this Agreement shall begin on the date of this Agreement and continue for a period of one year. This Agreement shall automatically renew at the end of the initial term for successive one-year periods unless terminated or modified in accordance with the following provisions:
(a) Entire Agreement. Either party may elect not to renew this Agreement, except for the Services set forth on Schedule A, upon 180 days' written notice the other party prior to the expiration of the initial term or any renewal period.
(b) Individual Services. Either party may terminate an individual Service or Services, except for the services set forth on Schedule A, upon 90 days' written notice to the other party.
(c) Rent and Related Services. Either party may terminate those Services set forth on Schedule A upon 30 days' written notice to the other party prior to the expiration of the end of the initial term or any renewal period. In addition, those services set forth on Schedule A shall terminate effective upon the last day of the month in which NaviSite notifies CMGI that either (i) NaviSite's new facility at 400 Minuteman Road, Andover, Massachusetts is ready to be occupied by NaviSite or (ii) NaviSite has vacated completely CMGI's facility at 100 Brickstone Square, Andover, Massachusetts, whichever is later.
(d) Material Breach. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party that is not cured within 30 days of written notice thereof from the other party.
(e) Automatic Termination. This Agreement, other than the services set forth on Schedule A, shall automatically terminate upon the date on which the ownership by CMGI of the outstanding voting capital stock of NaviSite shall first be less than 50% of the then outstanding voting capital stock of NaviSite.
4. Limitation on Liability. Neither party shall be liable to the other for any amount in excess of the amount invoiced to NaviSite for the 12-month period preceding any event giving rise to liability. Neither party shall be liable to the other for consequential damages except for those arising out of intentional misconduct or gross negligence.
5. Force Majeure. CMGI shall be excused for failure to provide the Services hereunder to the extent that such failure is directly or indirectly caused by an occurrence commonly known as force majeure, including, without limitation, delays arising out of acts of God, acts or orders of a government, agency or instrumentality thereof (whether of fact or law), acts of public enemy, riots, embargoes, strikes or other concerted acts of workers (whether of CMGI or other persons), casualties or accidents, delivery of materials, transportation or shortage of cars, trucks, fuel, power, labor or materials or any other causes, circumstances or contingencies within or without the United States of America that are beyond the control of CMGI; provided, however, that CMGI shall use its best efforts to resume provision of the Services as soon as possible. Notwithstanding any events operating to excuse performance by CMGI, this Agreement shall continue in full force for the remainder of its term and any renewals thereof.
6. Notices. All notices, billings, requests, demands, approvals, consents and other communications which are required or may be given under this Agreement shall be in writing and will be deemed to have been duly given if delivered person ally or sent by registered or certified mail, return receipt requested, postage prepaid to the parties at their respective addresses set forth below:
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If to NaviSite: |
If to CMGI: |
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NaviSite, Inc. 100 Brickstone Square Andover, MA 01810 Attn: Chief Financial Officer |
CMGI, Inc. |
7. No Assignment. This Agreement shall not be assignable except with the prior written consent of the other party to this Agreement.
8. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed therein.
9. Amendments. This Agreement and all attachments hereto constitute the entire agreement between the parties as to the subject matter hereof and super cede all prior negotiations, undertakings, representations and agreements, if any, of the parties hereto as to the subject matter hereof. This Agreement may not be amended orally but may be amended only by a written instrument signed by all of the parties hereto.
10. Waivers. The failure of either party to require strict performance by the other party of any provision in this Agreement will not waive or diminish that party's right to demand strict performance thereafter of that or any other provision hereof.
11. Paragraph Titles. The paragraph titles used in this Agreement are for convenience of reference only and will not be considered in the interpretation or construction of any of the provisions thereof.
12. Counterparts; Facsimile Signatures. This Agreement may be executed in two counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same document. This Agreement may be executed by facsimile signatures.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
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CMGI, INC. |
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NAVISITE, INC. |
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By: /s/ Andrew J. Hajducky III |
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By: /s/ Joel B. Rosen |
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Name: Andrew J. Hajducky III |
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Name: Joel B. Rosen |
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Title: Chief Financial Officer |
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Title: Chief Executive Officer |
Schedule A
Rent and Related Services
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<TABLE> |
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Services Provided by CMGI to NaviSite |
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Allocation of Cost to NaviSite |
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<S> |
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<C> |
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1. Brickstone Square Rent. Provision of space located at the Andover Premises (approximately 17,800 square feet). |
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Allocated based on headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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2. Facilities. Salary, fringe benefits, payroll taxes for the entire facility department. |
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Allocated based on both: (a) percentage of time that the facilities department devotes to the Federal Street Premises and (b) headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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3. Mass Electric. Utilities provided by Massachusetts Electric. |
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Allocated based on headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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4. Office Cleaning/Plant Maintenance. |
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Allocated based on headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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</TABLE> |
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Defined Terms: |
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Andover Premises |
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those premises located at 100 Brickstone Square, Andover, MA 01810 leased by CMGI. |
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CMGI Companies |
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the companies which are controlled by CMGI or in which CMGI holds an equity interest. |
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Federal Street Premises |
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those premises located at 300 Federal Street, Andover, MA 01810 occupied by NaviSite. |
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headcount |
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the number of employees employed by a particular CMGI Company on the last day of a given month. |
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Schedule B
Provision of Other Services
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<TABLE> |
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Services Provided by CMGI to NaviSite |
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Allocation of Cost to NaviSite |
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<S> |
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<C> |
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1. CMG Europe. All overhead costs for CMGI's European office of Marcus Bicknell, his assistant and accountant. |
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NaviSite is charged 5% of all costs associated with the European office. |
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2. Internet Marketing. Salary, fringe benefits and payroll taxes for Bill White and his assistant (both at CMGI). |
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NaviSite is one of nine CMGI Companies that benefits from these services and absorbs 11% of total costs. |
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3. Internet Development. Salary, fringe benefits and payroll taxes for Dave Andonian and his staff (all at CMGI). |
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NaviSite is one of nine CMGI Companies that benefits from these services and absorbs 11% of total costs. |
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4. Marketing Research. Access to research agencies such as Forrester Research, Inc. and Jupiter. |
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NaviSite is charged$2,000 per month for access to marketing research information. |
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5. Enterprise Services. Desktop and network services support. |
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Allocated based on headcount for NaviSite located at the Andover Premises and the Federal Street Premises divided by the headcount for the CMGI Companies using desktop and network services support located at the Andover Premises and the Federal Street Premises. |
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6. Trade show Booth Rental. |
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NaviSite is charged$1,239.55 per month for the amortization of the trade show booth. The amortization charge back started in October 1998 and will continue for 36 months from that date. NaviSite may continue to use the booth as long as CMGI continues to own more than 50% of the outstanding voting capital stock of NaviSite. |
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7. Medical/Dental Life and Long-term Disability |
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CMGI will provide Medical, Dental and Life and Long-term disability coverage to NaviSite employees under CMGI's group plans. NaviSite will be billed directly by the insurance provider for all costs associated with coverage for NaviSite employees enrolled in the medical or dental insurance plan or covered by the life and long-term disability policy. |
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8. Federal Express/United Parcel Service. |
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CMGI's Accounts Payable department codes each individual charge based on the identity of the sender. |
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9. Postage Machine. Mailings from the Andover Premises. |
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NaviSite is charged actual postage costs for mail stamped by the CMGI postage machine. |
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10. Pepsi/Poland Springs. |
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Allocated based on headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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11. Telephone. Provision of common, modem, fax and 800 lines. |
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Modem, fax and 800 lines are charged to NaviSite or the individual employee who is designated to that particular line. Common inbound and outbound lines are allocated based on headcount for NaviSite located at the Andover Premises divided by headcount for the CMGI Companies located at the Andover Premises. |
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12. Mobil Comm / Pagenet / Skytel / Cellular One. |
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Charged back to the person or department which is assigned that particular pager or cell phone. |
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13. Max out Fitness. Fitness club membership. |
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Allocated based on the number of employees at NaviSite who belong to the fitness club. The cost is offset by the fitness club dues that are withheld from the paycheck of each employee who is a member of the fitness club. |
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14. Legal Services. |
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To the extent that legal fees and expenses of NaviSite are paid for by CMGI, such fees and expenses will be allocated based upon the actual use of the legal services. |
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15. KPMG. Preparation of yearly income tax returns. |
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To the extent that legal fees and expenses of NaviSite are paid for by CMGI, such fees and expenses will be allocated based upon the actual use of KPMG services. |
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16. Funding Flex Spending. |
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Charged for amounts reimbursed to an employee through the flexible spending account on a person by person basis. |
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17. Benefit Administration. Salary, fringe benefits and payroll taxes for one benefit administrator and 25% of the salary, fringe benefits and payroll taxes for an assistant to the benefits administrator. |
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Allocated based on number of employees at NaviSite covered by the life insurance policy divided by the number of employees at CMGI Companies covered by the life insurance policy. |
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18. 401 (k) and 401 (k) Match Funding. |
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NaviSite credits the 401 (k) contribution and 401 (k) matching contribution each month from its payroll entry to a 401 (k) withholding account. Upon funding the 401 (k), CMGI charges back the funds to NaviSite. NaviSite then charges those funds to the 401 (k) withholdings account. There is usually a lag time of 15 days to 30 days for funding the 401 (k). |
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</TABLE> |
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Defined Terms |
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Defined Terms: |
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Andover Premises |
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those premises located at 100 Brickstone Square, Andover, MA 01810 leased by CMGI. |
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CMGI Companies |
-- |
the companies which are controlled by CMGI or in which CMGI holds an equity interest. |
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Federal Street Premises |
-- |
those premises located at 300 Federal Street, Andover, MA 01810 occupied by NaviSite. |
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headcount |
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the number of employees employed by a particular CMGI Company on the last day of a given month. |
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Facilities and Administrative Support Agreement - CMGI Inc. and NaviSite Inc. (Oct 27, 1999).docx
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