APPENDIX 3A – OUTSOURCING SERVICES AGREEMENT
It should be noted that this example is not intended, and is not to be regarded as, a definitive
statement of best practice and is not intended to constitute professional advice or a substitute for
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2.1 Consideration. In consideration of furnishing the Services, described
herein, CBT shall pay to NaviSite the monthly fee for the Services as set forth
on Exhibit B ("Monthly Service Fee").
2.2 Payment. All Monthly Service Fees shall be payable within thirty (30)
days of receipt of invoice. All Monthly Service Fees not paid within thirty (30)
days shall be subject to a monthly service charge of 1.5% of the unpaid balance.
2.3 Adjustments and Fee Calculation. The Monthly Service Fees is based on
NaviSite's actual costs for providing the Services and includes a predetermined
margin of thirty percent (30%) which shall be adjusted according to the Margin
Plan (as defined below). Within forty-five (45) days of the Effective Date the
parties shall mutually agree on a sliding scale mechanism under which the thirty
percent (30%) predetermined margin set forth above shall be adjusted upward or
downward based on utilization rates ( as well as other factors which may be
agreed to by the parties) which actually are occurring in the Data Centers (the
"Margin Plan"). The Margin Plan shall be amended quarterly as necessary and
included in the Budget (as defined below). NaviSite's actual costs for providing
the Services shall be calculated monthly and the Monthly Service Fees adjusted
up or down accordingly. Adjustments will be reflected in the next monthly
invoice for Services. NaviSite shall prepare a budget quarterly ( the "Budget")
including the resources, costs and other expenses it expects to incur in
providing the Services for the upcoming quarter. CBT shall review and promptly
approve the Budget in the event there are any disputes regarding the Budget, the
parties shall meet and in good faith negotiate a reconciliation of the Budget.
2.4 Each party shall maintain records of all activities subject to
revenues, payments, fees, commissions and costs pursuant to this Agreement. Each
party shall permit a reputable independent certified public accounting firm
designated by the other party to have access, at a mutually agreed upon time
during normal business hours, to the records and books of account which relate
solely to this Agreement for the purpose of determining whether the appropriate
fees and commissions have been paid. Such audits may not be required more often
than once every year; provided, however, that either party may audit the other
within six (6) months of any audit in which a discrepancy of five percent (5%)
or greater is discovered. If a discrepancy is discovered, the party in whose
favor the error was made will promptly pay the amount of the error to the other.
The party requesting the audit will pay the cost of the audit, provided, that if
a discrepancy is discovered of five percent (5%) or greater in favor of the
party requesting the audit, then the audited party will be required to pay the
reasonable costs of the audit.
3. LIMITATION OF LIABILITY.
3.1 Limitation of Remedies. NaviSite's and CBT's entire liability and
exclusive remedy in any cause of action based on contract, tort or otherwise in
connection with any Services furnished pursuant to this Agreement including its
Exhibits shall be limited to the total fees paid by CBT to NaviSite. No action,
regardless of form , arising out of this Agreement may be brought by either
party more than one (1) year after the occurrence of the event giving rise to
such cause of action.
3.2 EXCEPT WITH RESPECT TO AMOUNTS PAYABLE ARISING OUT OF CLAIMS BASED UPON
WILLFUL, MALICIOUS OR GROSSLY NEGLIGENT CONDUCT OF THE LIABLE PARTY, NEITHER
NAVISITE NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR
DELIVERY OF THE SERVICES SHALL IN ANY EVENT WHATSOEVER BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES IN EXCESS OF THE TOTAL PRICE PAID BY
CBT TO NAVISITE (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF
OR INABILITY TO USE THE SERVICES EVEN IF CBT HAS BEEN ADVISED OF THE POSSIBILITY OF