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EXHIBIT 10.35
GLOBAL CENTER, INC., A GLOBAL CROSSING COMPANY
MASTER SERVICE AGREEMENT NO.
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This Master Service Agreement (this "Agreement") is entered into on the ________
day of ___________, 2000 ("Effective Date") by and between ___________________,
on behalf of itself and the subsidiary, affiliate, division and/or business unit
("Client") indicated on the Service Order Form attached hereto, with an office
at the address listed on the Service Order Form, and Global Center, Inc., a
Delaware Corporation with offices at 141 Caspian Court, Sunnyvale, CA 94089, to
set forth the terms and conditions pursuant to which Global Center, Inc. shall
provide to Client certain Services (as defined in the Service Order). The entire
contract between the parties shall consist of this Agreement and one or more
Service Order(s). Unless otherwise agreed to by both parties, all future Service
Orders entered into between the Client and Global Center, Inc. will be bound by
this Agreement.
In consideration of the mutual promises and upon the terms and conditions set
forth below, the parties agree as follows:
1. NATURE OF AGREEMENT
Pursuant to this Agreement, Global Center, Inc. shall sell and provide to
Client, in consideration for the applicable fees as set forth in a Service Order
the following: (i) Internet connectivity services (the "Bandwidth"); (ii) the
lease (if so indicated on the Service Order) or purchase by Client of equipment
to provide such services (the "Hardware") and the installation of such
equipment; (iii) the lease of space to store and operate such Hardware
("Space"); (iv) management, planning and consulting resources to support these
services, including maintenance and operation of the Hardware ("Support"), (v)
the licensing of software to provide such Services (the "Software"), including,
without limitation, monitoring software, billing software, trouble ticketing
software, data collection and process control software, which together,
including all telecommunication and digital transmission connections and links,
all electrical and physical requirements, comprise an Internet connectivity and
co-location package to support Client's web site(s) ("Client's Web Sites") under
this Agreement and are referred to hereinafter as the "Services".
The Services will be provided in accordance with the specifications set forth in
the Service Specification attached to this Agreement and in the Service Order(s)
hereto and made a part hereof.
2. SERVICE ORDERS
2.1. ORDERS. Client and Global Center, Inc. may execute one or more Service
Orders describing the Services that Client desires to purchase from Global
Center, Inc. Each Service Order shall set forth the Services to be provided by
Global Center, Inc., the specifications applicable to each item, the prices and
payment schedule, the initial term of such Services (the "Initial Service Term")
and other information the parties may mutually agree upon. No Service Order
shall be effective until executed by Global Center, Inc. All Service Orders will
be subject to the terms and conditions of this Agreement, provided however, that
in the event of conflict between the terms contained in any Service Order and
terms in this Agreement, the terms contained in the Service Order shall control.
2.2. In the event of conflict between terms in this Agreement and Service Order,
and any terms contained in client-issued order form or purchase order, the terms
of this Agreement and Service Order shall supersede any terms and conditions
that may appear in such client-issued order form or purchase order.
2.3. CANCELLATION. In the event that Client cancels or terminates a Service
Order at any time for any reason, other than expiration of a Service Order or a
Service Interruption (as defined below), Client agrees to pay Global Center,
Inc. all Monthly Recurring Charges specified in the Service Order for the
balance of the term therefore, which shall become due and owing as of the
effective date of cancellation or termination. Upon the cancellation or
termination of a Service Order by Client, Global Center, Inc., shall upon
Client's written request and at no additional cost, give full cooperation and
assistance to Client to assure an orderly and efficient transition.
2.4. IP ADDRESSES. Global Center, Inc. will assign on a temporary basis a
reasonable number of Internet Protocol Addresses ("IP Addresses") from the
address space assigned to the Global Center, Inc. by InterNIC. Client
acknowledges that the IP Addresses are the sole property of Global Center, Inc.,
are assigned to Client as part of the Service, and are not "portable," as such
term is used by InterNIC. Global Center, Inc., reserves the right to change the
IP Address assignments at any time; however, Global Center, Inc. shall use
reasonable efforts to avoid any disruption to Client resulting from such
renumbering requirement. Global Center, Inc., will give Client reasonable notice
of any such renumbering. Client agrees that it will have no right to IP
Addresses upon termination of this Agreement, and that any renumbering required
of Client after termination shall be the sole responsibility of Client.
2.5. STAFFING. Except as otherwise agreed in any Service Order, Global Center,
Inc. shall be responsible for staffing decisions with respect to its personnel
and the provision of any Services under this Agreement, and shall have the right
to remove or replace any of its personnel assigned to perform Services under
this Agreement. Global Center, Inc., shall use reasonable efforts to maintain
the continuity of its personnel assigned to perform Services under this
Agreement.
3. SOFTWARE LICENSE AND RIGHTS
3.1. LICENSE. During the term of the applicable Service Order, Global Center,
Inc., grants Client a non-transferable, nonexclusive license to use the Software
in object code form only, solely on the Hardware, or Global Center, Inc.,
equipment, in conjunction with the Services.
3.2. PROPRIETARY RIGHTS. This Agreement transfers to Client neither title nor
any proprietary or intellectual property rights to the Software, documentation,
or any copyrights, patents, or trademarks, embodied or used in connection
therewith, except for the rights expressly granted herein.
3.3. LICENSE RESTRICTIONS. Client agrees that it will not itself, or through any
parent, subsidiary, affiliate, agent or other third party.
3.3.1. Copy the Software except as expressly allowed under this Agreement. In
the event Client makes any copies of the Software, Client shall reproduce all
proprietary notices of Global Center, Inc., on any such copies;
3.3.2. reverse, engineer, decompile, disassemble, or otherwise attempt to derive
source code from the software;
3.3.3. sell, lease, license or sublicense the Software or the documentation;
3.3.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.3.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a 'service bureau' basis.
3.4. SOFTWARE REPRESENTATIONS AND WARRANTIES. Global Center, Inc., represents
and warrants that: (i) it has the right, power and authority to license the
Software to Client pursuant to this Agreement free of all liens, encumbrances
and other restrictions; (ii) the Software shall operate and run in accordance
with the Service Specifications indicated in the Agreement or referenced in the
Service Order, (iii) the license furnished by Global Center, Inc., hereunder
and/or the use of the Software by Client in accordance with the terms and
conditions herein or in any Service Order, will not infringe upon nor violate
any patent, copyright, trade secret, or other proprietary right of any third
party; (iv) Client's use and possession of the Software consistent with the
terms of this Agreement, shall not be adversely affected, interrupted or
disturbed
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by Global Center, Inc., or any entity asserting a claim under or through Global
Center, Inc.; (v) the installation and use of the Software and any Upgrades
shall not degrade, impair or otherwise adversely affect the performance or
operation of the Hardware.
4. HARDWARE TERMS AND CONDITIONS
4.1. INSTALLATION. If so indicated on the Service Order, Global Center, Inc.,
will use commercially reasonable efforts to install the Hardware as the Hardware
is shipped to Global Center, Inc., Global Center, Inc., will work with the
Client on an installation plan to define installation time frame and
requirements.
4.2. PURCHASE AND TITLE OF HARDWARE. If so indicated on the Service Order,
Client shall purchase the Hardware and deliver, at Client's expense, the
Hardware to the Space. Client agrees that the Hardware shall reside at the Space
during the term of this Agreement.
4.3. LEASE OF HARDWARE. If so indicated on the Service Order, Client shall lease
the Hardware, and Global Center, Inc., shall obtain and deliver the Hardware to
the Space. In the event Client leases the Hardware, the following terms and
conditions shall apply: The Hardware is and shall remain the property of Global
Center, Inc. Client shall not have taken, or attempt to take, any right, title
or interest therein or permit any third party to take any interest therein.
Client will not transfer, sell, assign, sublicense, pledge, or otherwise dispose
of, encumber or suffer a lien or encumbrance upon or against the Hardware or any
interest in the Hardware. Client will use the Hardware only at the Space. Client
will not move the Hardware from that facility without Global Center, Inc.'s
prior written permission. Client shall be responsible for any damage to the
Hardware caused by Client negligent or willful acts or omissions. Client will
use the Hardware only for the purpose of exercising its rights under this
Agreement.
4.4. RENT TO OWN. If so indicated on the Service Order, Client shall lease the
Hardware on a "rent to own" plan. In such event, all of the terms and conditions
in Section 4.3 shall apply, and the following terms and conditions shall also
apply. At the end of the term of the Service Order, providing Client is not in
breach of this Agreement, Client shall have the option to purchase the Hardware.
The purchase price shall be as indicated on the Service Order. Upon payment by
Client of the purchase price, title of the Hardware shall pass to Client at the
Space. Unless the Service Order is extended by mutual Agreement, Client shall
immediately delete, or shall allow Global Center, Inc., to delete all copies of
the Software and associated documentation owned by Global Center, Inc., or any
other materials of Global Center, Inc., resident on the Hardware.
5. SPACE
5.1. Global Center, Inc., represents and warrants that (i) it has obtained all
necessary approvals to lease the Space to Client and to allow Client to occupy
and have access to the Space for the purpose of receiving the Services set forth
in the Service Order, (ii) it has the authority to grant Client a royalty-free,
non-transferable, non-exclusive license to occupy and have access to the Space,
and that the grant of such license shall not constitute a violation of the lease
or separate Agreement to which Global Center, Inc., is a party and/or by which
it is bound, and (iii) the Space shall conform with the Service Specifications
set forth in this Agreement or any Service Order.
5.2. LICENSE TO OCCUPY. Global Center, Inc. grants to Client a non-exclusive
license to occupy the Space. Client acknowledges that it has been granted only a
license to occupy the Space and that it has not been granted any real property
interests in the Space. Global Center, Inc., represents and warrants that it has
obtained all approvals necessary, including but not limited to, permissions from
the landlord and any regulatory authorities, to operate the facility in this
manner contemplated by this Agreement.
5.3. MATERIAL AND CHANGES. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any material alteration to cabling or power supplies for the Hardware,
without obtaining Global Center, Inc.'s prior written approval for Client to
have the work performed. Alternatively, Client may request Global Center, Inc.
to perform the work. Global Center, Inc., reserves the right to perform and
manage any construction or alterations within the Space areas at rates to be
negotiated between the Parties hereto, so long as the rates are commercially
reasonable. Client agrees not to erect any signs or devices to the exterior
portion of the Space without submitting the request to Global Center, Inc. and
obtaining Global Center, Inc.'s prior written approval.
5.4. DAMAGE. Client agrees to reimburse Global Center, Inc., for all reasonable
repair or restoration costs associated with damage or destruction in the Space
directly caused by the negligence or willful misconduct of Client's personnel,
Client's agents, Client's suppliers/contractors, or Client's visitors to the
Space during the term or as a consequence of Client's removal of the Hardware or
property installed in the Space, provided that Client shall not be liable for
any damage or destruction occurring from or out of any negligent act or omission
of Global Center, Inc., its officers, directors, agents and employees.
5.5. INSURANCE. Unless otherwise agreed, Client agrees to maintain, at Client's
expense, for each Space, (i) Comprehensive General Liability Insurance in an
amount not less than One Million Dollars ($1,000,000) per occurrence for bodily
injury or property damage, (ii) Employer's Liability in an amount not less than
Five Hundred Thousand Dollars ($500,000) per occurrence, and (iii) Worker's
Compensation in an amount not less than that prescribed by statutory limits.
Upon reasonable request of Global Center, Inc., Client shall furnish Global
Center, Inc., with certificates of insurance, which evidence these minimum
levels of insurance.
5.6. REGULATIONS. Client shall use its best efforts to comply with and not
violate Global Center, Inc.'s Safety, Health and Operation Rules and regulations
relating to use of it's premises and facilities, so long as those regulations
are provided to client in writing. Client's failure to comply materially with
Global Center, Inc. 's rules and regulations shall constitute a material default
under this Agreement. Global Center, Inc., may, in its sole discretion, limit
Client's access to a reasonable number of authorized Client employees or
designees. Client shall not interfere with any other clients of Global Center,
Inc., or such other clients' use of the Space.
5.7. DISCLAIMER. Except as expressly stated herein, Global Center, Inc., does
not make any representation or warranty as to the fitness of the Space for
Client's use.
6. SERVICE INTERRUPTIONS
6.1. 99% NETWORK UPTIME GUARANTEE. In the event of Network Downtime (as defined
below), the monthly fee payable for the Bandwidth, defined in the Service Order,
shall be reduced as follows:
6.1.1. if the total Downtime in the calendar month is more than seven and two
tenths (7.2) hours, but does not exceed fourteen and four tenths (14.4) hours,
the monthly Bandwidth fee for that month shall be reduced by one-third (33.3%);
and
6.1.2. if the total Downtime in the calendar month is more than fourteen and
four tenth hours (14.4) hours, but does not exceed twenty-one and six tenths
(21.6) hours, the monthly Bandwidth fee for that month shall be reduced by
two-thirds (66.6%); and
6.1.3. If the total Downtime in the calendar month is more than twenty-one and
six-tenths (21.6) hours the monthly Bandwidth fee for that month shall be
reduced by three-quarters (75%).
6.2. DOWNTIME DEFINED. For the purposes of this Section, Downtime shall mean any
interruption of sixty (60) seconds or more in the availability of, (i) the
connection between the Client's equipment and the Global Center, Inc. switch
fabric, (ii) the internetwork that connects the Global Center, Inc. switch
fabric with the Internet. For purposes of this Section, the Internet is deemed
to consist of services that commence where Global Center, Inc. transmits a
Client's content to Global Center,
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Inc.'s carrier(s) at the Global Center, Inc., border router port(s). Such
carriers provide Global Center, Inc., with private and dedicated bandwidth.
Global Center, Inc., undertakes no obligation for the circuit or link between
Global Center, Inc.'s facilities and such carrier's services. If router packet
loss is in excess of fifty percent (50%) and is sustained for sixty (60) seconds
or more, Global Center, Inc., will classify this as an "outage." If an "outage"
continues for a time period of more than two (2) minutes, then such outage will
be deemed Downtime. If the latency across the Global Center, Inc. national IP
backbone exceeds one hundred twenty (120) milliseconds, Global Center, Inc.,
will classify this as Downtime.
6.3. MAINTENANCE WINDOWS. Global Center, Inc., reserves three (3) regularly
scheduled maintenance windows per week, of three hour duration, in order to
maintain and upgrade the Global Center, Inc. IP Backbone infrastructure. Outages
or performance degradation during scheduled maintenance windows as a result of
router, switch or server maintenance, are not considered Downtime for purposes
of this section. Global Center, Inc. shall make all commercially reasonable
efforts to provide the client with prior notification of all scheduled and
emergency maintenance procedures.
6.4. 100% FACILITY UPTIME GUARANTEE. In the event of Facility Downtime (as
defined below), the Monthly Fee payable for the Co-location Services as set
forth in the applicable Service Order shall be reduced as follows:
6.4.1. If the total Facility Downtime in the calendar month is less than, or
equal to four minutes and thirty-two seconds (4.32) the monthly Co-location
service fee for that month shall be reduced by one-third (33.3%);
6.4.2. If the total Facility Downtime in the calendar month is more than four
minutes and thirty-two seconds (4.32) the monthly Co-location service fee for
that month shall be reduced by two-thirds (66.6%).
6.4.3. DOWNTIME DEFINED. For the purposes of this Section, Facility Downtime
shall mean any service interruption, only if such interruption is either due to
a facility power failure or environmental control failure.
6.5. INVESTIGATION OF SERVICE INTERRUPTIONS. At Client's request, Global Center,
Inc. will investigate any report of Downtime, and attempt to remedy any Downtime
expeditiously. If Global Center, Inc. reasonably determines that all facilities,
systems and equipment furnished by Global Center, Inc. are functioning properly,
and that Downtime arose from some other cause, Global Center, Inc. can continue
to investigate the Downtime cause at the client's request and expense for labor
and materials cost for services actually performed at the usual and customary
rates for similar services provided by Global Center, Inc. to clients in the
same locality.
6.6. TERMINATION. Client may terminate a Service Order in the event of Downtime
of either twenty-four (24) hours of cumulative time during any continuous twelve
(12) month period, or any continuous downtime of eight (8) or more hours.
6.7. SOLE REMEDY. The terms and conditions of this Section shall be Client's
sole remedy and Global Center, Inc.'s sole obligation for any Downtime.
7. USER CONTENT
7.1. Client is solely responsible for the content of any postings, data, or
transmissions using the Services ("Content"), or any other use of the Services
by Client or by any person or entity Client permits to access the Services (a
"User"). Client represents and warrants that it and any User will not use the
services for unlawful purposes (including without limitation infringement of
copyright or trademark, misappropriation of trade secrets, wire fraud, invasion
of privacy, pornography, obscenity and libel), or to interfere with or disrupt
other network users, network services or network equipment. Disruptions include
without limitation distribution of unsolicited advertising or chain letters,
repeated harassment of other network users, wrongly impersonating another such
user, falsifying one's network identity for improper or illegal purposes,
sending unsolicited mass e-mailings, propagation of computer worms and viruses,
and using the network to make unauthorized entry to any other machine accessible
via the network. If Global Center, Inc. has reasonable grounds to believe that
Client or a User is utilizing the Services for any such illegal or disruptive
purpose, Global Center, Inc. may suspend or terminate Services immediately upon
notice to Client. Client shall defend, indemnify, hold harmless Global Center,
Inc. from and against all liabilities and costs (including reasonable attorney's
fees) arising from any and all claims by any person arising out of Client's use
of the Services, including without limitation any content.
7.2. ACCEPTABLE USE POLICY. All Global Center, Inc. clients are responsible for
reviewing and complying with this Acceptable Use Policy. Global Center Inc.'s
clients who provide services to their own users must take steps to ensure
compliance by their users with this Acceptable Use Policy. This Policy is
subject to change without notice by publication at
http://www.globalcenter.net/aup. Clients are responsible for monitoring this web
site for changes.
Global Center, Inc. customers may not use Global Center, Inc.'s data
distribution network, machines, or services in any manner that violates any
applicable law, regulation, treaty, or tariffs. Also customers are prohibited
from activity that includes, but is not limited to unauthorized use (or
attempted unauthorized use) of any machines or networks, denial of service
attacks, falsifying header information or user identification information,
monitoring or scanning the networks of others without prior written permission
from Global Center, Inc.
7.2.1. EMAIL. Sending unsolicited bulk email is prohibited. Sending unsolicited
bulk email from another provider advertising or implicating the use of any
service hosted by Global Center Inc., including without limitation email, web,
FTP, and DNS services, is prohibited and is grounds for termination of those
services to users who engage in the practice. Users who send unsolicited bulk
email from Global Center Inc., accounts will be charged the cost of labor to
respond to complaints.
Continuing to send someone email after being asked to stop is considered
harassment and is prohibited. Using email to disrupt (e.g., mail bombing,
"flashing," etc.) is prohibited. Sending email with falsified header information
is prohibited. Chain letters, pyramid schemes, and hoaxes are prohibited.
7.2.2. USENET NEWSGROUPS. Global Center, Inc. places no content restrictions on
newsgroup postings by its users except that (a) no illegal content, including
pyramid/Ponzi schemes, is permitted and (b) all postings should conform to the
various conventions, guidelines and local culture found in each respective
newsgroup and Usenet as a whole.
7.2.3. Posting 20 or more copies of the same article in a 45-day period
("spamming") or continued posting of off-topic articles after being warned is
prohibited. Users who engage in spamming using Global Center, Inc. accounts will
be charged the cost of labor to issue cancellations and respond to complaints.
Users who engage in spamming from another provider advertising or implicating
the use of any service hosted by Global Center, Inc., including without
limitation email, web, FTP, and DNS services, is prohibited and is grounds for
termination of those services to those users.
7.2.4. Excessive crossposting (Breidbart Index of 20 or greater in a 45-day
period) is prohibited. The Breidbart Index (BI) is calculated by taking the sum
of the square roots of the number of newsgroups each copy of an article is
crossposted to. If two articles are posted, one crossposted to 9 newsgroups and
the other crossposted to 16 newsgroups, the BI = sqrt(9)+sqrt(16)=3+4=7.
Crossposting articles to newsgroups where they are off-topic is prohibited.
7.2.5. Posting articles with falsified header information is prohibited.
"Munging" header information to foil email address harvesting by "spammers" is
acceptable provided that a reasonable means of replying to the message
originator is given. Use of anonymous remailers is acceptable, so long as the
use is not otherwise a violation of this policy.
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7.2.6. Users may not issue cancellations for postings except those, which they
have posted themselves, those which have headers falsified so as to appear to
come from them or in newsgroups where they are the official moderators.
8. PRICING AND PAYMENT TERMS
8.1. PAYMENT TERMS. Client shall pay the fees set forth in the Services Order
Form according to the terms set forth therein. Client agrees to pay a late
charge of two percent (2%) above the prime rate as reported by the Wall Street
Journal at the time of assessment or the maximum lawful rate, whichever is less,
for all undisputed amounts not paid within thirty (30) days of receipt of
invoice.
8.2. LATE PAYMENTS. In the event of non-payment by Client of sums over-due
hereunder for more than forty-five (45) days, Global Center, Inc. may upon
written notice to Client either retain any equipment or other assets of Client
then in Global Center, Inc.'s possession and sell them in partial satisfaction
of such unpaid sums, or request Client to remove equipment from Global Center,
Inc.'s premises within ten (10) days. If Client fails to so remove, Global
Center, Inc. may deliver the equipment to Client at the latter's address for
notices at Client's expense for shipment and insurance, and Client shall be
obligated to accept such delivery.
8.3. PRICE INCREASES. Global Center, Inc. shall not increase the prices for
services during the initial term of any Service Order, but may thereafter change
prices upon sixty(60) days written notice.
9. MAINTENANCE AND SUPPORT
Global Center, Inc. shall provide Client with maintenance and support of the
Software and Hardware, if any ("Maintenance and Support") as specified in the
Service Specification.
9.1 EXCLUSIONS. Maintenance and Support shall not include services for problems
arising out of (a) modification, alteration or addition or attempted
modification, alteration or addition of the Hardware or Software undertaken by
persons other than Global Center, Inc. or Global Center, Inc.'s authorized
representatives; or (b) programs or hardware supplied by Client.
9.2. CLIENT DUTIES. Client shall document and promptly report all errors or
malfunctions of the Hardware or Software to Global Center, Inc. Client shall
take all steps necessary to carry out procedures for the rectification of errors
or malfunctions within a reasonable time after such procedures have been
received from Global Center, Inc. Client shall maintain a current backup copy of
all programs and data. Client shall properly train its personnel in the use and
application of the Hardware and Software.
10. TERM AND TERMINATION
10.1. TERM. The term of this Agreement shall commence on the Effective Date and
continue indefinitely unless terminated in accordance with this Section 10 or
the provisions contained in Section 6.6 The initial term of each Service Order
shall be as indicated therein.
10.2. TERMINATION UPON DEFAULT. Either party may terminate this Agreement in the
event that the other party materially defaults in performing any obligation
under this Agreement and such default continues unremedied for a period of
thirty (30) days following written notice of default. In the event this
Agreement is terminated due to Global Center, Inc.'s breach, Global Center,
Inc., shall refund to Client any Services fees on a straight-line prorated
basis.
10.3. TERMINATION UPON INSOLVENCY. This Agreement shall terminate, effective
upon delivery of written notice by a party, (i) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debts of the other party; (ii) upon the making of an
assignment for the benefit of creditors by the other party; or (iii) upon the
dissolution of the other party.
10.4. EFFECT OF TERMINATION. The provisions of Sections 1, 2.3, 3.2, 3.4, 7,
10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. All other
rights and obligations of the parties shall cease upon termination of this
Agreement. The term of any license granted hereunder shall expire upon
expiration or termination of this Agreement.
11. CONFIDENTIAL INFORMATION
All information identified disclosed by either party ("Disclosing Party") to the
other party ("Receiving Party"), if disclosed in writing, labeled as proprietary
or confidential, or if disclosed orally, reduced to writing within thirty (30)
days and labeled as proprietary or confidential ("Confidential Information")
shall remain the sole property of Disclosing Party. Except for the specific
rights granted by this Agreement, Receiving Party shall not use any Confidential
Information of Disclosing Party for its own account. Receiving Party shall use
the highest commercially reasonable degree of care to protect Disclosing Party's
Confidential Information. Receiving Party shall not disclose Confidential
Information to any third party without the express written consent of Disclosing
Party (except solely for Receiving Party's internal business needs, to employees
or consultants who are bound by a written Agreement with Receiving Party to
maintain the confidentiality of such Confidential Information in a manner
consistent with this Agreement). Confidential Information shall exclude
information (i) available to the public other than by a breach of this
Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving Party
without access to Confidential Information; (iv) known to Receiving Party at the
time of disclosure; or (v) produced in compliance with applicable law or a court
order, provided Disclosing Party is given reasonable notice of such law or order
and an opportunity to attempt to preclude or limit such production. Subject to
the above, Receiving Party agrees to cease using any and all materials embodying
Confidential Information, and to promptly return such materials to Disclosing
Party upon request.
12. LIMITATION OF LIABILITY
GLOBAL CENTER, INC.'S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT
SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO GLOBAL CENTER, INC.
UNDER THIS AGREEMENT. IN NO EVENT SHALL GLOBAL CENTER, INC. BE LIABLE FOR ANY
LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT
OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF
LIABILITY. THIS LIMITATION WILL APPLY EVEN IF GLOBAL CENTER, INC. HAS BEEN
ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
13. DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE STATED HEREIN, GLOBAL CENTER, INC. SPECIFICALLY DISCLAIMS
ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT OF THE SYSTEM OR SERVICES PROVIDED BY GLOBAL CENTER, INC.
HEREUNDER.
14. MISCELLANEOUS
14.1. INDEPENDENT CONTRACTOR. The relationship of Global Center, Inc. and Client
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to (i) give either party the
power to direct and control the day-to-day activities of the other; (ii)
constitute the parties as partners, joint ventures, co-owners or otherwise as
participants in a joint
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undertaking; or (iii) allow either party to create or assume any obligation
on behalf of the other party for any purpose whatsoever.
14.2. NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be given by registered or certified mail addressed to the addresses
first written above. Such notice shall be deemed to be given upon the earlier of
actual receipt or three (3) days after it has been sent, properly addressed and
with postage prepaid. Either party may change its address for notice by means of
notice to the other party given in accordance with this Section.
14.3. ASSIGNMENT. Neither party may assign this Agreement, in whole or in part,
either voluntarily or by operation of law without express written consent of the
other party, and any attempt to do so shall be a material default of this
Agreement and shall be void.
14.4. GOVERNING LAW. This Agreement shall be interpreted according to the laws
of the State of California without regard to or application of choice-of-law
rules or principles.
14.5. ENTIRE AGREEMENT AND Waiver. This Agreement, including all appendices,
attachments and Service Orders, shall constitute the entire Agreement between
Global Center, Inc. and Client with respect to the subject matter hereof and all
prior Agreements, representations, and statement with respect to such subject
matter are superseded hereby. This Agreement may be changed only by written
Agreement signed by both Global Center, Inc. and Client. No failure of either
party to exercise or enforce any of its rights under this Agreement shall act as
a waiver of subsequent breaches; and the waiver of any breach shall not act as a
waiver of subsequent breaches.
14.6. SEVERABILITY. In the event any provision of this Agreement is held by a
court of other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect.
14.7. NON-SOLICITATION. During the term of this Agreement and for a period of
one (1) year thereafter, client shall not directly solicit, nor directly attempt
to solicit the services, of any employee or subcontractor of Global Center, Inc.
without the prior written consent of the other party.
14.8. SUBSTITUTION. Global Center, Inc. may substitute, change or modify the
Software or Hardware at any time, but shall not thereby alter the technical
parameters of the Services.
141 Caspian Court
Sunnyvale, CA 94089
BY
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SERVICE SPECIFICATION
CO-LOCATION SERVICE
Global Center, Inc. will provide a level of service, which includes the
following features and options:
GENERAL FEATURES
MAINTENANCE OF THE SPACE (INCLUDING JANITORIAL SERVICES):
In connection with the Space made available hereunder, Global Center, Inc. or
its landlord shall perform services that support the overall operation of each
Space at no additional charge to Client. Those services include the following:
- - Janitorial Services
- - 24 x 7 Access to the Space
- - Authorized Security System Access to Raised Floor Collocation Space
- - Primary A/C 110 volt Power to the Space
- - Backup Power-UPS Systems & Battery Plant (30 - 60 minute survivability
objective)
- - Generator Back-up (Sustained backup power)
- - HVAC Systems for facility air conditioning
- - Fire Control Systems
- - Network Monitoring Systems
- - Redundant Network Connectivity and Hardware
- - 19" Rack Spaces for installation of Hardware
- - Custom configurations of space to accommodate cabinets
- - Lockable private caged customer areas
- - 10-base-T or 100-base-T switched port with direct high speed Internet
backbone connection.
24x7 NOC SUPPORT: Will provide proactive site monitoring with ExpressLane(TM)
statistics on Client information base; including bandwidth usage, statistics and
network availability reporting, host monitoring and management interface, access
to Global Center, Inc. incident tracking system to expedite fault resolution and
remote server reboot.
ESCALATION PLAN AND PROCEDURES: To be provided by Global Center, Inc. in the
Welcome Package 5-10 days after the contract is signed.
RIGHT-OF-WAY AND ACCESS
Global Center, Inc. will allow 24 x 7 access and right-of-way to Client Hardware
located in Global Center, Inc. facility at no charge. Clients will be escorted
at all times while in the facility. Access to the facilities will not be
unreasonably withheld by Global Center, Inc. to Clients for performing
appropriate procedures and maintenance of Hardware, facilities, and systems.
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