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HOSTING/CO-LOCATION SERVICES AGREEMENT
This Hosting/Co-Location Services Agreement (the "Agreement") is made
and entered into this 25th day of October, 1999, by and iXL Memphis Inc., a
Delaware corporation ("iXL"), and Kinzan.com, a CALIFORNIA corporation
("Client").
RECITALS
WHEREAS, iXL operates and provides related services with respect to an
electronic information system consisting of Internet access via high speed
communication lines, routers, and other necessary computer equipment; and
WHEREAS, Client desires the services of iXL and use of its System for
Web hosting and telecommunications services to maintain the availability of
Client's web site(s) via the Internet.
NOW, THEREFORE, in consideration of the mutual covenants and benefits
described in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. DEFINITIONS.
1.1. "Agreement" means this Hosting/Co-Location Services Agreement,
including all Statements of Service and corresponding exhibits
issued pursuant to this Agreement. "End User" means any person or
entity which accesses the Client Web site via the Internet.
1.2. "Web Site" means the World Wide Web site on which Client Content
will appear.
1.3. "Client Content" means all text, words, names, likenesses,
trademarks, logos, artwork, graphics, video, audio, HTML, JAVA or
other coding, domain names, image maps, links, software
applications, or other content that appear on, or are provided to
iXL for uploading to or downloading from, the Client Web Site.
1.4. "Services" means all services and deliverables described and set
forth in this Agreement and each Statement of Service issued under
this Agreement that are required to be provided by iXL.
2. THE AGREEMENT AND STATEMENT(S) OF SERVICE. Client hereby engages iXL to
host its Web Site(s) or provide other telecommunications services, as
described in a statement of service attached hereto and incorporated
herein which shall at a minimum include a description of the services to
be provided and the corresponding fees (a "Statement of Service"). iXL
hereby accepts such engagement, subject to the terms and conditions of
this Agreement. If there is any difference between the terms of any
Statement of Service attached hereto and any other portion of this
Agreement, the terms of the Statement of Service shall control, with the
exception of Section 18 (which confirms that no joint venture,
partnership or other relationship has been created in connection with
this Agreement). In the event of a conflict between Section 18 of this
Agreement and any language in a Statement of Service, Section 18 of this
Agreement shall control. All services provided by iXL to Client under
this Agreement and under every Statement of Service shall be considered
to be provided under a "Statement of Work" as defined in the Services
Agreement dated January 29, 1999 between iXL and the Client and all
amounts paid by Client, or its customers, to iXL under this Agreement and
every Statement of Services shall be deemed to be payments under section
3(b) of the Services Agreement.
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3. CHANGE ORDERS; ADMINISTRATION. Any modifications to the specifications
in a Statement of Service after acceptance by Client hereunder shall
require execution of a written change order by both parties to this
Agreement (a "Change Order"). Each Change Order complying with this
section shall be deemed to be an amendment to the applicable Statement of
Service and will become part of this Agreement.
4. CLIENT REPRESENTATIONS, WARRANTIES, AND RESPONSIBILITIES.
4.1. Client and its customers shall assume full responsibility for all
Client Content as it appears on the Web Site. Client and its
customers, and not iXL, shall be responsible for keeping the
information on the Web Site current and accurate. Client shall
clearly identify all parts of the Web Site, including any bulletin
boards or chat rooms, as being controlled by Client. Client remains
solely responsible for its choice of content vendors and for
negotiating terms and conditions with such vendors.
4.2. During the term of this Agreement, and for the purpose of hosting
the Client Content on the Web Site, Client hereby grants to iXL the
nonexclusive worldwide right and license to use, upload, display,
copy and store Client Content.
4.3. Client represents and warrants that to its knowledge: (a) Client is
the owner, valid licensee, or authorized user of the Client Content
and each element thereof, (b) the use of the Client Content shall
not infringe the copyright, trade secret, trademark or other
proprietary or intellectual property right of any third party, or
constitute a defamation, invasion of privacy, or violation of any
right of publicity or other third party right, (c) the Client
Content complies with all legislation, rules and regulations of all
applicable jurisdictions including without limitation, those
applicable to privacy and collection or use of personal data;
potential liability for posting or transmitting data which is
threatening, obscene, indecent, defamatory or in violation of
export control laws, or contrary to laws or regulations relating to
unsolicited e-mails or the practice commonly called "spamming," (d)
use of the Web Site by any party, other than iXL, will conform to
general standards of behavior for the Internet, and (f) Client
Content shall be free from viruses, worms, Trojan horses, and any
other malicious code. Each party hereby acknowledges that there is
no guarantee of security on the Internet and no guarantee that the
Web Site or Client Content will be secure; and iXL assumes no
responsibility for the consequences to the client as a result of a
security breach out of iXL's control.
4.4. Each party represents and warrants to the other party that it has
full authority and right to enter into this Agreement and that there
are no conflicting claims relating to the rights granted by this
Agreement.
5. iXL RESPONSIBILITIES.
5.1. iXL shall provide the Services specified in the Statement of
Service attached hereto as Exhibit A. With the exception of Client
Content, unless specified otherwise in a Statement of Service, iXL
shall procure all hardware, software, materials and other items
necessary for implementing this Agreement and shall own all right,
title, and interest in and to such items. iXL may in its reasonable
discretion change such hardware and software so long as there is no
material change in functionality of the Web Site. iXL assumes no
responsibility for third parties who break encryption coding so
that data being transmitted is visible to others.
5.2. iXL shall determine the method, details, and means of performing
the services to be performed hereunder, subject to the standards
set forth herein. iXL may subcontract to third parties for
implementation of services provided to Client pursuant to this
Agreement, provided that iXL remain fully responsible for any acts
or omissions of such subcontractors. iXL shall retain the right to
perform any and all services for other clients, and Client shall
retain the right to cause work of the same or a different kind to
be performed by its own personnel or other contractors.
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5.3. iXL will not be responsible for, or have any liability in
connection with, the operation of the Client Web Site with respect
to online commercial transactions, and shall not have any
responsibility or liability for misuse of or failure to protect
credit card or other information provided by Client's customers on
the Client Web Site. In addition, Client assumes the risk of loss
due to (a) Client's offering any products for sale through the
Client Web Site, including "soft" goods, for example, telephone
usage cards, for which customers are given authorization codes by
Client that are effective with or without physical delivery of the
goods sold by Client; or (b) Client's maintaining personal
identification numbers or other authorization codes in connection
with the Client Web Site.
5.4. Additional iXL obligations if any are listed in the Statement of
Service attached hereto as Exhibit A.
6. INTELLECTUAL PROPERTY.
6.1. No press release, announcement, publication, or other use of the
other party's insignia logos, trademarks, tradename or service
marks (collectively, the "Marks") shall be made by either party
without the other party's prior written approval. All use by either
party of the other party's Marks will inure to the benefit of the
party owning the Marks. Upon termination of this Agreement, neither
party shall have any continuing right to use the other party's
Marks and each party shall immediately cease all such use of the
other party's Marks.
6.2. Upon termination of this Agreement, Client shall retain ownership
of Client Content and Client's Domain Names. iXL shall retain
control of all hardware, software, materials, and other items
provided by iXL pursuant to this Agreement and Client shall retain
control of all hardware, software, materials, and other items
provided by Client pursuant to this Agreement.
6.3. iXL shall not provide Client any design elements, graphics,
formatting, CGIs, or other applications or content (collectively
"iXL tools") pursuant to this Agreement. Availability of iXL Tools
shall be subject to separate agreement.
7. UNSOLICITED COMMERCIAL EMAIL AND OTHER PRACTICES.
7.1 The practices commonly known as spamming are prohibited. These
include, but are not limited to, the following: posting an article
or advertisement to more than ten (10) newsgroups, forums, e-mail,
mailings lists or other similar groups or lists (collectively
"Internet Lists"); posting to any Internet List articles which are
off-topic; sending unsolicited mass e-mailings to more than
twenty-five (25) e-mail users, if such unsolicited e-mailings
provoke complaint; and falsifying user information provided to iXL
or to other users of the service.
7.2 iXL reserves the right at any time to implement reasonable
technical mechanisms to prevent such activities, or take other
legal action against any Client engaging in or tolerating spamming
or any other illegal, harassing, obscene or other liability-causing
activity. iXL reserves all legal and equitable rights in enforcing
this policy. iXL acknowledges that Client's customers will be
developing their own content on such sites and that Client will
have only certain controls over such customers. Client acknowledges
that iXL will not be liable for the acts or omissions of Client or
its customers. iXL agrees to cooperate with Client in Client's
development of practices and measures to prevent such activity
described above, and to the extent reasonably practicable, to take
such measures in a manner so as to minimize intrusion to Client's
and its customers' businesses.
7.3. This section does not apply to Web Sites that send solicited email,
from a mailing list that people have taken an active step to
participate in. An active step means that a person has sent an
email or other communications specifically requesting to be placed
on that mailing list.
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8. FEES AND TAXES. In consideration of the activities contemplated in this
Agreement, Client shall pay to iXL the fees set forth in the Statement of
Service attached hereto as Exhibit A. Client shall pay each invoice for
fees within thirty days following the invoice date. Fees do not include,
and, Client shall be solely responsible for any and all taxes of whatever
nature, including without limitation, withholding taxes or other taxes
imposed by foreign jurisdictions, federal, state, and local sales, use,
transfer, property, privilege, excise, gross receipts, franchise and
other similar taxes and tax-related surcharges (but excluding income
taxes to iXL), however, designated (hereinafter referred to collectively
as "Taxes"), which are levied, imposed or due by reason of sale or
distribution of products, services, or information from Web Site or any
services, or information from Web Site or any services rendered under
this Agreement. iXL shall not be liable for, and Client shall indemnify
iXL against liability for, all such Taxes.
9. TERM AND TERMINATION.
9.1. This Agreement shall commence on the date first written above and
shall continue in effect until it is terminated pursuant to the
provisions of this Section 9. The term of each Statement of
Service shall specify the term applicable to the service provided
under that Statement.
9.2. This Agreement may be terminated by iXL and the Client Web Site
removed from the World Wide Web at any time in the event that
Client commits any material default hereunder which Client fails to
remedy within thirty days after having been notified in writing of
the default. iXL may terminate the hosting services provided for a
web site immediately if (a) the web site contains content that iXL
reasonably determines could cause liability to iXL and Client does
not remove such content within 48 hours upon iXL's request, (b)
Client violates the Unsolicited Commercial Email provision in
Section 7.1 and has not cured the violation within five (5) days.
9.3. If Client fails to pay any invoice hereunder within thirty days
following the date of iXL's notice of non-payment, iXL may remove
Client's Web Site from the World Wide Web, and condition the
continued provision of services and restoration of Client's Web
Site to the World Wide Web upon Client's payment of all outstanding
charges and a reinstallation fee of $1,000
9.4. This Agreement may be terminated by Client at any time in the event
iXL commits a material default hereunder, provided iXL has been
notified of the default in writing and has not cured such default
within thirty days.
9.5. If a Statement of Service is terminated pursuant to this Section
and there are no other Statements of Service attached hereto under
which services are still being provided by iXL, either party may
terminate this Agreement by providing thirty (30) days notice to
the other party. Sections 4 (Warranties), 6 (Intellectual
Property), 8 (Fees and Taxes), 10 (Exclusion of Warranties), 11
(Indemnity), 12 (Limitation of Liability, 13 (Confidentiality), 15
(Non-Solicitation) and 19 (Miscellaneous) of this Agreement shall
survive the termination of this Agreement irrespective of the
reason for termination, subject to Client's obligation to pay iXL
all undisputed compensation earned for services rendered under this
Agreement through the effective date of such termination.
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10. EXCLUSION OF WARRANTIES. APART FROM THE SPECIFIC WARRANTIES SET OUT
HEREIN OR IN A STATEMENT OF SERVICE ATTACHED HERETO, ALL SERVICES AND
PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS.
NEITHER iXL NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS,
AGENTS OR LICENSORS WARRANTS THAT THE SERVICES OR PRODUCTS PROVIDED
PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO
THEY WARRANT THAT CERTAIN RESULTS MAY BE OBTAINED BY CUSTOMER IN
CONNECTION WITH ITS USE OF THE CUSTOMER WEBSITE. iXL AND ITS
AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND LICENSORS MAKE NO
WARRANTY, GUARANTEE OR REPRESENTATION EITHER EXPRESS OR IMPLIED
REGARDING THE MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR
PURPOSE OF THE CUSTOMER WEBSITE OR ANY SERVICES OR PRODUCTS PROVIDED
UNDER THIS AGREEMENT. iXL DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR
ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY iXL.
11. INDEMNITY. Notwithstanding anything to the contrary in this Agreement,
Client shall indemnify and hold iXL, its affiliates, directors,
officers, employees, agents and licensors harmless from and against all
claims, action, expenses, losses, and liabilities arising from or
relating to the following: (a) any claim based on clients breach of it's
representation and warranties contained herein, (b) any claim based upon
alleged errors, omissions, or misstatements in any Client Content, (c)
any claim based upon a Domain Name registered or used by iXL at Client's
direction or request, (d) any claim arising out of or relating to the
Web Site, Client Content, or otherwise under this Agreement (including,
but not limited to, any claim resulting from any content posted to the
Web Site by Client or Client's employees, agents or any other third
party), and (e) any injury to person or property, caused by a product,
service, or information, whether or not defective, that is sold or
distributed from the Web Site. Notwithstanding anything to the contrary
in this Agreement, iXL shall indemnify and hold client harmless, its
affiliates, directors, officers, employees, agents and licensors
harmless from and against all claims, action, expenses, losses, and
liabilities arising from or relating to the following: (a) any claim
based on breach iXL's of warranties contained herein, (b) claims of
third parties that are a direct result of iXL's breach of this agreement.
12. LIMITATION OF LIABILITY. With the exception of the indemnification
provisions herein, each party's maximum aggregate liability to other
related to or in connection with this Agreement will be limited to the
total amount paid by Client to iXL for the prior twelve (12) month
period under the Statement in which claim is made. IN ADDITION, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR (1) ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, OR
(2) ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFITS, GOODWILL,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER
COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE USE OR PERFORMANCE OF THE iXL SERVICES, WHETHER IN AN
ACTION BASED ON ANY LEGAL THEORY, CONTRACT, TORT OR OTHERWISE,
REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
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13. CONFIDENTIALITY. During the course of performance of this Agreement,
each party may disclose to the other certain information ("Confidential
Information"). Each party shall hold the other party's Confidential
Information in confidence and shall use its best efforts to protect it.
Without the consent of the other party, a party shall not disclose the
other party's Confidential Information to any third party, and shall use
it for the sole purpose of performing under this Agreement. At the
conclusion of this Agreement, each party shall either return the other's
Confidential Information in its possession (including all copies) or
shall, at the disclosing party's direction, destroy the other party's
Confidential Information (including all copies) and certify its
destruction to the disclosing party. "Confidential Information" means
any information provided or prepared by a party ("Disclosing Party")
that is provided to, or obtained by the other party (including any
director, officer, employee, agent, subcontractor or other
representative of such party) that includes, but is not limited to,
information that relates to research, product plans, products, services,
clients, markets, software, hardware developments, inventions, processes,
designs, drawings, technical data, know-how or finances of the Disclosing
Party. The term "Confidential Information" shall not include any
information which: (a) is in the public domain at the time of disclosure
or enters the public domain following disclosure through no fault of the
receiving party, (b) the receiving party can demonstrate as already in its
possession prior to disclosure hereunder or is subsequently disclosed to
the receiving party with no obligation of confidentiality by a third party
having the right to disclose it or (c) is independently developed by the
receiving party without reference to the disclosing party's Confidential
Information. Either party may disclose the other party's Confidential
Information upon the order of any competent court or government agency,
provided that prior to disclosure the receiving party shall inform the
other party of such order. Neither party shall disclose the terms and
conditions of this Agreement to any third party. Neither party shall
issue any press release or other public announcement regarding this
Agreement without the other party's prior written approval.
14. ATTRIBUTION. During the term of this Agreement, (i) each party may list
the other party as a client of the other party on the first party's Web
Site and in all other marketing materials, including all digital and
print materials (ii) each may include either a URL or plain text link to
the other party's Web Site on its Web Site. No press release,
announcement, publication or other use of the other party's insignia,
logos, trademarks, tradename or service marks ("Marks") shall be made by
either party without the other party's prior written approval. Upon
termination of this Agreement, neither party shall have any continuing
right to use the other party's Marks and each party shall immediately
cease all such use of the other party's Marks. For the purposes of this
Section 14, iXL shall include iXL Holdings, Inc. and its affiliates.
15. NON-SOLICITATION. During the term of this Agreement and for one (1)
year after the termination of this Agreement, each party agrees that it
shall not, directly or indirectly, solicit for employment, induce or
attempt to induce any employee of the other party to leave the employ.
For purposes of this Section 15, iXL shall include iXL Holdings, Inc.
and its affiliates.
16. FORCE MAJEURE. Neither party shall be liable to the other party for any
delay or failure to carry out the services provided hereunder if such
delay or failure is due to any cause beyond the control of the first
party, including without limitation, restrictions of law, regulations,
orders or other government directives, labor disputes, acts of God, acts
of third party vendors or suppliers, or mechanical or electronic
breakdowns.
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17. NOTICE. Any notice required or permitted to be given under this Agreement
shall be in writing and deemed given and effective upon delivery if sent by
personal delivery or by facsimile transmission or five (5) days after
posting if sent by certified United States mail, return receipt requested,
with postage prepaid and addressed as follows:
If to iXL: iXL Hosting
3160 Director's Row
Memphis, TN 38131
With copies to: iXL Enterprises, Inc.
1888 Emery Street NW
Atlanta, GA 30318
Attn: T. William Alvey III, Assistant General Counsel
Fax: (404)-267-3801
If to Client: Kinzan.com
2111 Palomar Airport Road #250
Carlsbad, CA 92009
Attn: Dana McGowan
Fax: (760) 602-2910
A copy to: Kinzan.com
2111 Palomar Airport Road #250
Carlsbad, CA 92009
Attn: Ray Ghanbari
Fax: (760) 602-2910
18. RELATIONSHIP BETWEEN PARTIES. The parties intend that an independent
contractor relationship shall be created by this Agreement. Nothing in this
Agreement shall be construed as establishing a partnership, joint venture,
or employer-employee relationship between the parties.
19. MISCELLANEOUS.
19.1 Assignment. This Agreement shall be binding on, inure to the
benefit of, and be enforceable by each party and their respective
heirs, successors and valid assigns. Neither party shall assign or
transfer the rights or obligations associated with this Agreement, in
whole or in part, without the other party's express written consent,
which shall not be unreasonably withheld; provided that no consent
shall be required in the event of an assignment to any entity
controlling, controlled by, or under common control with such party,
or to another entity in connection with a reorganization, acquisition,
merger, sale of substantially all the assets of a party.
19.2 GOVERNING LAW. This Agreement shall be governed by, construed under
and enforced in accordance with the laws of the State of California.
19.3 COUNTERPARTS. This Agreement may be executed in multiple
counterparts and by facsimile, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
19.4 ENTIRE AGREEMENT. This Agreement, including all attached
Statement(s) of Service, supersedes and cancels all prior
negotiations, communications, understandings and Agreements between
iXL and Client with respect to the subject matter of this Agreement.
The parties acknowledge that there exist other agreements relating to
matters different than those covered herein. No oral Agreements,
before or after execution of this Agreement, shall be binding until
they are in writing and signed by an authorized officer of both iXL
and Client.
19.5 SEVERABILITY. In the event that any provision of this Agreement is
held void or unenforceable, the entire balance of this Agreement shall
remain in full force and effect.
19.6 HEADINGS. The section and subsection headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated below:
iXL-Hosting.
By: /s/ Mike Schwartz
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Name: Mike Schwartz
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Title: General Manager, Senior Vice-President
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Kinzan
By: /s/ Douglas J. Perry
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Name: Douglas J. Perry
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Title: Vice President
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