EXHIBIT 10.18
[LOGO] Internet Services and Co-Location Agreement
Please read this Internet Services and Co-Location Agreement (this "Agreement")
carefully before signing, since by signing this Agreement, you consent to all of
its terms and conditions. This Agreement is made by and between AboveNet
Communications, Inc. ("AboveNet") and Customer. This Agreement is effective
upon AboveNet's acceptance as indicated by its signature below on the date below
(the "Effective Date"). This Agreement may De executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Customer Signature: /s/ Larry Slotnick Customer ID #:
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Print Name: Larry Slotnick Contract No.:
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Title: Vice President Effective Date:
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Date: 7/20/99 AboveNet Signature:
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Company Name: NOOSH, Inc. Print Name:
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Address: 3401 Hillview Ave.
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Palo Alto, CA 94304
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Phone: (650) 858-8300 x333
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Fax: (650) 858-1015
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Thank you for choosing AboveNet to provide your Internet co-location services.
As used in this Agreement, the term "you" and "customer" refers to the above-
named corporation, partnership or other business entity that enters into this
Agreement, and "service" means the transmission of data to and from the Internet
through the network of routers, switches and communication channels owned and
controlled by AboveNet ("Network") together with co-location services including
24x7 connectivity to the Internet and Co-location Space, as further defined in
this Agreement and in your Order for AboveNet Services Form (the "Order Form").
The initial Order Form is attached to this Agreement as Exhibit A. AboveNet and
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Customer may enter into subsequent Order Forms, which may supercede or
complement prior Order Forms. As used in this Agreement, the term "Customer
Equipment" refers to any and all computer equipment, software, networking
hardware or other materials placed by or for Customer in the Co-location Space,
other than AboveNet Equipment.
AboveNet will begin installation, initiation and Service after it receives and
accepts: (1) your Order Form; (2) a copy of this Agreement signed by your
authorized representative and (3) payment of amounts due under Section 1.1
below, detailed on your Order Form.
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1. Service Fees And Billing. Customer agrees to pay the Service Activation
Charges, Monthly Service Fees, and other fees indicated on the Order Form
(collectively, "Service Fees").
1.1 Activation Charges. AboveNet will bill Customer for all Service
Activation Charges and first and last month Service Fees (the
"Activation Charges') upon AboveNet's acceptance of this Agreement and
the Order Form, AboveNet will not commence installation, Initiation
and Service unless and until it either has received payment in full of
all Activation Charges or has agreed, at its sole option, to extend
credit to Customer.
1.2 Recurring Fees. AboveNet will begin billing for recurring Service Fees
on the date that is the earlier of: (a) the Installation Date
specified in the Order Form; and (b) the date that Customer places
Customer Equipment in AboveNet's premises. If, however, Customer is
unable to use the Services commencing on the installation Date solely
as a result of delays caused by AboveNet, then the installation Date
specified in the Order Form shall be extended one day for each day of
delay caused by AboveNet. On or about the first day of each month,
AboveNet will bill Customer
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for Network services provided during the previous month, and for co-
location service to be provided in the current month. Recurring
Service Fees do not include monthly telephone company charges which
are billed separately by the local telephone company(s).
1.3 Payment. All Fees and charges will be due, in U.S. dollars, within
twenty (20) days of the date of each AboveNet invoice. Late payments
will accrue interest at a rate of one and one-half percent (1 1/2%)
per month, or the highest rate allowed by applicable law, whichever is
lower. If in its judgment AboveNet determines that Customer lacks
financial resources, AboveNet may, upon written notice to Customer,
modify the payment terms to secure Customer's payment obligations
before providing Services.
1.4 Taxes. All payments required by this Agreement are exclusive of
applicable taxes and shipping charges. Customer will be liable for and
will pay in full all such amounts, other than taxes based on AboveNet
net income.
2. Co-Location.
2.1 Installation. AboveNet grants you the right to operate Customer
Equipment at the Co-location Space, as specified on your Order Form.
The Co-location Space is provided on an "AS-IS" basis and you may use
the Co-location Space only for the purposes of maintaining and
operating Customer Equipment as necessary to support local access
communications facilities and links to AboveNet and to third parties.
Customer will install Customer Equipment in the Co-location Space
after obtaining the appropriate authorization from AboveNet to access
AboveNet promises. Customer will remove and be solely responsible for
all packaging for Customer Equipment.
2.2 Access. You may access the Co-location Space only in accordance with
the AboveNet Co-Location Access Policies located at
http://www.above.net/html/security.html as updated from time to time.
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Customer not provide or make available to any third party any portion
of the Co-location Space without AboveNet's prior written consent,
which consent AboveNet may withhold in its sole discretion.
2.3 Removal of Customer Equipment. Customer will provide AboveNet with
written notification two (2) days before Customer wishes to remove any
Customer Equipment. Before authorizing the removal of any Customer
Equipment, AboveNet's accounting department will verify that Customer
has no payments due to AboveNet. Once AboveNet authorizes removal of
Customer Equipment, Customer will remove such Customer Equipment, and
will be solely responsible to bring appropriate packaging and moving
materials. Should Customer use an agent or other third party (for
example, but without limitation, a common carrier such as U.P.S.) to
remove Customer Equipment, Customer will be solely responsible for the
acts of such party, and any damages caused by such party to Customer
Equipment or otherwise. At Customer's option, AboveNet will remove and
package Customer Equipment, and place such Customer Equipment in a
designated area for pick-up, on the condition that Customer either
provides all packaging needed or pays AboveNet to package Customer
Equipment, Customer may thereafter remove Customer Equipment from the
designated area, or may arrange for a carrier to remove and ship such
equipment with any necessary insurance to be paid by Customer.
3. Security. AboveNet does not guarantee security of Customer Equipment, the
Co-Location Space or of the Network. AboveNet requires that you and your
employees comply with all Co-Location Security Procedures, as modified from
time to time, in order to maximize the security of the Network and AboveNet
premises. AboveNet's current Co-Location Security Procedures are located at
http://www.above.net/html/security.html, In particular, you must establish
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a password with AboveNet for purposes of requesting any support services
with respect to Customer Equipment or your Network connection, either by
telephone or e-mail. Information detailing password requirements is
available on the World Wide Web at http://www.above.net /html/sug.html.
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Only individuals whom you have identified as "Customer Representatives" in
writing to AboveNet will be permitted to enter the Co-location Space, to
request Services on your behalf, or to request any support services with
respect to Customer Equipment or your Network connection, either by
telephone or email (for example, but without limitation, instructing
AboveNet to modify or reconfigure its Services or to remove Customer
Equipment). For good cause, AboveNet may suspend the right of any Customer
Representative or other person to visit the AboveNet premises and/or the
Co-location Space. AboveNet will assist in Network security breach
detection or identification, but shall not be liable for any inability,
failure or mistake in doing so.
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4. Local and Long Distance Carriers. AboveNet will provide Customer with a
list of approved third party carriers for data communications and
telecommunications. Customer is responsible for ordering all local and
long-distance lines from such third party carriers and ordering any and all
necessary cross-connects from AboveNet. AboveNet Service Fees for such
cross-connects are as indicated on the Order Form. The carriers will
install such circuits in Customer's name. Customer will be solely
responsible for such circuits and for all payments due to the carriers.
Customer will notify the carrier directly when Customer wishes to terminate
or modify such circuit.
5. Domain Information and Registration Application. If Customer has not
registered the domain name that it wishes to use, Customer may complete the
applicable sections of the Order Form to request registration or a change
in domain name,
6. Other Networks; Approval and Usage. Services include the ability to
transmit data beyond AboveNet's Network, through other networks, public and
private. Use of or presence on other networks may require approval of the
respective network authorities and will be subject to any acceptable usage
policies such networks may establish. Customer will not hold AboveNet
responsible for, and AboveNet will not be liable for, such approval or for
violation of such policies. Customer understands that AboveNet does not own
or control other networks outside of its Network, and AboveNet is not
responsible or liable for performance (or non-performance) within such
networks or within interconnection points between the Service and other
networks that are operated by third pages.
7. Resale. Customer may resell the Service after receiving AboveNet's prior
written approval as to the nature and scope of such resale as set forth In
Section 2.2. Should Customer resell any portion of the Service to any other
party, Customer assumes all liabilities arising out of or related to such
third party sites and communications. Customer agrees to enter into written
agreements with any and all parties to which it resells any portion of the
Services with terms and conditions at least as restrictive and as
protective of AboveNet's rights as the terms and conditions of this
Agreement, including, without limitation, Sections 2.3, 3, 6, 8, 9.6-9.8,
10, 11, 12, 14 and 16, and naming AboveNet as a third party beneficiary.
8. Acceptable Use Guidelines. Customer must at all times conform its use of
the Service to AboveNet's Acceptable Use Guidelines and Anti-SPAM Policy,
as AboveNet may update such Guidelines and Policy from time to time. The
current version of AboveNet's Acceptable Use Guidelines can be found at
http.//www.above.net/html/aug.html. AboveNet's Anti-SPAM Policy is located
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at http://www.above.net/html/anti-spam.html. If AboveNet Is informed by
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government authorities or other parties of inappropriate or illegal use of
AboveNet's facilities (including but not limited to the Network) or other
networks accessed through AboveNet, or AboveNet otherwise learns of such
use or has reason to believe such use may be occurring, then Customer will
cooperate in any resulting investigation by AboveNet or government
authorities. Any government determinations will be binding on Customer. If
Customer fails to cooperate with any such investigation or determination,
or fails to immediately rectify any illegal use, AboveNet may immediately
suspend Customer's Service. Further, upon notice to Customer, AboveNet may
modify or suspend Customer's Service as necessary to comply with any law or
regulation as reasonably determined by AboveNet. This includes, without
limitation, any use contrary to the Digital Millennium Copyright Act of
1998, 17 U.S.C. 512.
9. Limited Service Level Warrant. AboveNet warrants that it will use its
commercially reasonable efforts to minimize Excess Packet Loss and Latency,
and to avoid Downtime, and that AboveNet will provide the following
remedies to customer; (Excess Packet Loss, Latency and Downtime are defined
below).
9.1 Packet Loss and Latency. AboveNet does not proactively monitor the
packet loss or transmission latency of specific customers. AboveNet
does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that
AboveNet discovers (either from its own efforts or either being
notified by Customer) that Customer is experiencing packet loss in
excess of five percent (.5%) ("Excess Packet Loss") or transmission
latency In excess of 120 milliseconds round-trip time based on
AboveNet's measurements ("Latency") between any two routers within the
continental United States portion of the Network on average for each
hour, and Customer notifies AboveNet (or AboveNet has notified
Customer), then AboveNet will use its commercially reasonable actions
to determine the source of the Excess Packet Loss or Latency and
correct the problem.
9.2 Remedy for Failure. If either Excess Packet Loss or Latency occurs and
it stems from a source within the Network and not from the Customer or
beyond the Network, and if AboveNet fails to
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correct the Excess Packet Loss or Latency after using its commercially
reasonable efforts for a period of twenty-four (24) hours after the
onset of such Excess Packet Loss or Latency, then AboveNet will credit
Customer's account the pro-rata Bandwidth Fees (as set forth in the
applicable Order Form) for the continuous duration of such Excess
Packet Loss or Latency; provided that all such credits will not exceed
an aggregate maximum credit of Bandwidth Fees otherwise due from
Customer for one (1) calendar month for failures in any one (1)
calendar month.
9.3 Inability to Access the Internet (Downtime). AboveNet will use its
commercially reasonable efforts to avoid Downtime for 99.9% of the
hours as an average calculated over each calendar year. If Customer is
unable to transmit and receive information from the Network to other
portions of the Internet because AboveNet failed to provide Network
access Services ("Downtime") for more than four (4) continuous hours,
then AboveNet will credit Customer's account the pro-rata Bandwidth
Fees (as set forth In the applicable Order Form) for the continuous
duration of such Excess Packet Loss or Latency; provided that all such
credits will not exceed an aggregate maximum credit of Bandwidth Fees
otherwise due from Customer for one (1) calendar month for failures in
any one (1) calendar month. For purposes of the foregoing, "unable to
transmit and receive" shall mean sustained packet loss in excess of
fifty percent (50%) based on AboveNet measurements.
9.4 Year 2000. AboveNet hereby incorporates its Year 2000 Compliance
Disclosure found at http://www.above.net/html/y2k/html into this
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Agreement. If Customer experiences any Excess Packet Loss, Latency or
Downtime due to AboveNet's failure to be Year 2000 compliant (as
defined in the Year 2000 Compliance Disclosure), Customer will have
the remedies set forth in this Section 9, and the limitations sat
forth in this Section 9, Section 11 and the Year 2000 Compliance
Disclosure. The Year 2000 Compliance Disclosure, as incorporated into
this Agreement, is provided as a "Year 2000 Readiness Disclosure" as
defined in the Year 2000 Information and Readiness Disclosure Act of
1998 (Public Law 105-Z71, 112 Stat. 2386) enacted on October 19, 1998.
9.5 Customer Must Request Credit. Customer must notify AboveNet within
three (3) business days from the time Customer becomes eligible to
receive a credit under this Section 9 to receive such credit. Failure
to comply with this requirement will forfeit Customer's right to
receive a credit.
9.6 Limitation on Remedies. If Customer is entitled to multiple credits
under this Section 9, such credits shall not be cumulative beyond a
total of credits for one (1) calendar month of Bandwidth Fees in any
one (1) calendar month in any event. AboveNet will not apply a credit
under Section 9.2 for any Excess Packet Loss or Latency for which
Customer received a credit under Section 9.3. AboveNet will only apply
a credit to the month in which the Incident occurred. Further,
AboveNet will not apply a credit for any period in which Customer
received any bandwidth Services free of charge. Sections 9.2 and 9.3
above state Customer's sole and exclusive remedy for any failure by
AboveNet to provide services or adequate service levels, including,
but not limited to any outages or Network congestion. AboveNet's
blocking of data communications in contravention of its Anti-SPAM
Policy or Acceptable Use Guidelines shall not be deemed to be a
failure of AboveNet to provide adequate Service levels under this
Agreement.
9.7 No Other Warranty. Except for the express, warranty set out in this
Section 9 above, the Services are provided on an "As Is" basis, and
Customer's use of the Services is at its own risk. AboveNet does not
make, and hereby disclaims, any and all other express and implied
warranties, including, but not limited to, warranties of
merchantability, fitness for a particular purpose, noninfringement and
title, and any warranties arising from a course of dealing, usage, or
trade practice. AboveNet does not warrant that the Services will be
uninterrupted, error-free, or completely secure.
9.8 Disclaimer Of Third Party Actions and Control. AboveNet does not and
cannot control the flow of data to or from the Network and other
portions of the Internet. Such flow depends in large part on the
performance of Internet services provided or controlled by third
parties. At times, actions or inactions caused by these third parties
can produce situations in which AboveNet customers' connections to the
Internet (or portions thereof) may be impaired or disrupted. Although
AboveNet will use commercially reasonable efforts to take actions it
deems appropriate to remedy end avoid such events, AboveNet cannot
guarantee that they will not occur. Accordingly, AboveNet disclaims
any and all liability resulting from or related to such events.
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10. Insurance. Customer will keep in full force and effect during the term
of this Agreement: (i) business loss and interruption insurance in an
amount not less than that necessary to compensate Customer and its
customers for complete failure of Service; (ii) comprehensive general
liability insurance in an amount not less than one (1) million dollars
per occurrence for bodily injury and property damage; (ii) employer's
liability insurance in an amount not less than one (1) million dollars
per occurrence; and (iii) workers' compensation insurance in an amount
not less than that required by applicable law. Customer also agrees
that it will be solely responsible for ensuring that its agents
(including contractors end subcontractors) maintain other insurance at
levels no less than those required by applicable law and Customary in
Customer's end its agents' industries. Prior to installation of any
Customer Equipment in the Co-location Space or otherwise as AboveNet
may request, Customer will furnish AboveNet with certificates of
Insurance which evidence the minimum levels of Insurance set forth
above. Customer agrees that prior to the installation of any Customer
Equipment at AboveNet premises or the Co-location Space, Customer will
cause its insurance provider(s) to name both AboveNet and the AboveNet
landlord indicated on the applicable Order Form as additional insured
and notify AboveNet in writing of the effective data of such coverage.
Customer agrees that Customer and its agents and representatives shall
not pursue any claims against AboveNet for any liability AboveNet may
have under or relating to this Agreement unless and until Customer or
Customer's employee, as applicable, first makes claims against
Customer's insurance provider(s) and such insurance provider(s)
finally resolve(s) such claims. Any inability by Customer to furnish
the proof the insurance required under this Section 10 or failure to
obtain such insurance shall be a materiel breach of this Section 10
and of this Agreement.
11. Limitations of Liability.
11.1 Personal Injury. Each Customer Representative and any other
persons visiting AboveNet facilities does so at his or her own
risk and AboveNet shall not be liable for any harm to such
persons resulting from any cause other than AboveNet's gross
negligence or willful misconduct resulting in personal injury to
such persons during such a visit.
11.2 Damage to Customer Business. Except as expressly set forth In
Section 9 including the limited remedy and other limitations set
forth under Section 9, in no event will AboveNet be liable to
Customer, any Customer Representative, or any third party for
any claims arising out of or related to Customer's business,
Customer's customers or clients, Customer Representative's
activities at AboveNet or otherwise, or for any lost revenue,
lost profits, replacement goods, loss of technology, rights or
services, incidental, punitive, indirect or consequential
damages, loss of data, or interruption or loss of use of Service
or of any Customer's business, even if advised of the
possibility of such damages, whether under theory of contract,
tort (including negligence), strict liability or otherwise.
11.3 Damage to Customer Equipment. AboveNet assumes no liability for
any damage to, or loss of, any Customer Equipment resulting from
any cause other than AboveNet's gross negligence or willful
misconduct. To the extent AboveNet is liable for any damage to,
or loss of, the Customer Equipment for any reason, such
liability will be limited solely to the then-current value of
the Customer Equipment and further subject to the limitations
set forth in this Section 11.3 and in Section 11.4 below. In no
event will AboveNet be liable to Customer, any Customer
Representative, or any third party for any claims arising out of
or related to Customer Equipment for any lost revenue, lost
profits, replacement goods, loss of technology, rights or
services, incidental, punitive, indirect or consequential
damages, loss of data, or interruption or Ioss of use of any
Customer Equipment even if advised of the possibility of such
damages, whether under theory of contract, tort (including
negligence), strict liability or otherwise.
11.4 Maximum Liability. Notwithstanding anything to the contrary in
this Agreement, AboveNet's maximum aggregate liability to
Customer related to or in connection with this Agreement will be
limited to the total amount paid by Customer to AboveNet
hereunder for the Twelve (12) month period prior to the event or
events giving rise to such liability.
12. Defense of third party claims and Indemnification.
12.1 Defense. Customer will defend AboveNet, its directors, officers,
employees, affiliates and customers (collectively, the "Covered
Entities") from and against any end all claims, actions or
demands brought by or against AboveNet and/or any of the Covered
Entities alleging: (a) with respect to the Customer's business:
(i) infringement or misappropriation of any intellectual
property
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rights; (ii) defamation, libel, slander, obscenity, pornography,
or violation of the rights of privacy or publicity; or (iii)
spamming, or any other offensive, harassing or illegal conduct
or violation of the Acceptable Use Guidelines or Anti-Spam
Policy; (b) any damage or destruction to the co-location Space,
the Network, AboveNet premises, AboveNet Equipment or to any
other AboveNet customer which damage is caused by or otherwise
results from acts or omissions by Customer, Customer
Representative(s) or Customer's designees; (c) any personal
injury or property damage to any Customer employee, Customer
Representative or other Customer designee arising out of such
individual's activities related to the Services, unless such
injury or property damage is caused solely by AboveNet's gross
negligence or willful misconduct; or (d) any other damage
arising from the Customer Equipment or Customer's business
(collectively, the "Covered Claims").
12.2 Indemnification. Customer hereby agrees to indemnify AboveNet
and each covered Entity from and against all damages, costs, and
fees awarded in favor of third parties in each Covered Claim,
and Customer will indemnify and hold harmless AboveNet and each
Covered Entity from and against any and all claims, demands,
liabilities, losses, damages, expenses and costs (including
reasonable attorneys fees) (collectively, "Losses") suffered by
AboveNet and each Covered Entity which Losses result from or
arise out of a Covered Claim.
12.3 Notification. Customer will provide AboveNet with prompt written
notice of each Covered Claim of which Customer becomes aware,
and, at AboveNet's sole option, AboveNet may elect to
participate in the defense and settlement of any Covered Claim,
provided that such participation shall not relieve Customer of
any of its obligations under this Section 12.
13. Reliance on Disclaimer, Liability Limitations and Indemnification
Obligations. Customer acknowledges that AboveNet has set its prices
and entered into this Agreement in reliance upon the limitations and
exclusions of liability, the disclaimers of warranties and damages and
Customer's indemnity obligations set forth herein, and that the same
form an essential basis of the bargain between the parties. The
parties agree that the limitations and exclusions of liability and
disclaimers specified in this Agreement will survive and apply even if
this Agreement is found to have failed of their essential purpose.
14. Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology,
and products, including the terms and conditions of this Agreement
("Confidential Information"). Confidential Information will Include,
but not be limited to, each party's proprietary software and customer
information. Each party agrees that it will not use in any way, for
its own account or the account of any third party, except as expressly
permitted by this Agreement, nor disclose to any third party (except
as required by law or to that party's attorneys, accountants end other
advisors as reasonably necessary), any of the other party's
Confidential Information and will take reasonable precautions to
protect the confidentiality of such information. Information will not
be deemed Confidential Information hereunder if such information: (i)
is known to the receiving party prior to receipt from the disclosing
party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (ii) becomes
known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one
having an obligation of confidentiality to the disclosing party; (iii)
becomes publicly known or otherwise ceases to be secret or
confidential, except through a breach of this Agreement by the
receiving party; (iv) is independently developed by the receiving
party; or (vi) is required to be released by law or regulation,
provided that the receiving party provide prompt written notice to the
disclosing party of such impending release, and the releasing party
cooperate fully with the disclosing party to minimize such release.
15. Term. This Agreement will be effective beginning on the Effective Date
and ending at the end of the last "Term" specified in any Order Form
accepted by AboveNet, unless terminated as provided in Section 10
below. Use of any Service after the date specified on the Order Form
under which such Service was provided will constitute Customer's
acceptance of AboveNet's then current standard Agreement and the fee
rates then in effect, but be terminable by AboveNet upon notice.
16. Termination.
16.1 For Nonpayment. After fifteen (15) days of non-payment from the
due date, or such longer period as AboveNet's Billing Terms &
Conditions may provide, AboveNet may disable Service. To re-
enable Service, AboveNet will require a reconnection fee. After
thirty (30) days of nonpayment from the AboveNet invoice due
date, or such longer period as AboveNet's Billing Terms &
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Conditions may provide, AboveNet may terminate the Service
permanently. Termination does not remove Customer's obligations
under this Agreement, including the obligation to pay ail fees
for Service until termination or due for a committed, initial
Term.
16.2 Unacceptable Use; Bankruptcy. AboveNet may terminate this
Agreement upon written notice to Customer for Violation of the
Acceptable Use Guidelines or Anti-SPAM Policy or if Customer
becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors or
becomes the subject of an involuntary petition in bankruptcy or
any involuntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if
such petition or proceeding is not dismissed within sixty (60)
days of filing.
16.3 For Cause. Either party may terminate this Agreement if the
other party materially breaches any term or condition of this
Agreement and fails to cure such breach within thirty (30) days
after receipt of written notice of the same, except in the case
of failure to pay fees which failure is subject to Section 16.1
above or for failure to comply with AboveNet's Acceptable Use
Guidelines or Anti-SPAM Policy as set forth in Section 16.2.
16.4 No Liability for Termination. Neither party will be liable to
the other for any termination or expiration of this Agreement in
accordance with its terms. However, expiration or termination
will not extinguish claims or liability (including, without
limitation, for payments due) arising prior to such expiration
or termination.
16.5 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) AboveNet will immediately
cease providing the Services; (b) any and all payment
obligations of Customer under this Agreement will become due
immediately, including but not limited to Recurring Service Fees
through the end of the term indicated on the Order Form adjusted
for the net present value of the prospective payments except in
the case of termination per Section 16.2 above; (c) within
thirty (30) days after such expiration or termination, each
party will return all Confidential information of the other
party in its possession at the time of expiration or termination
and will not make or retain any copies of such Confidential
Information except as required to comply with any applicable
legal or accounting record keeping requirement; and (d) Customer
will remove from AboveNet's premises all Customer Equipment and
any of its other property on AboveNet premises within ten (10)
days of AboveNet's request (and only after Customer receives
authorization from AboveNet as provided in Section 2.3) and
return the Co-location Space to AboveNet In the same condition
as it was prior to Customer's installation. If Customer does not
remove such property (or cannot remove such property because of
payments due to AboveNet) within such ten (10) day period, then
AboveNet may move any and all such property to storage and
charge Customer for the cost of such removal and storage,
without being liable for related damages. If Customer does not
pay all amounts due to AboveNet and remove such property from
AboveNet premises or storage within thirty (30) days of such
AboveNet request, AboveNet may liquidate the property in any
reasonable manner, without being liable for related damages.
16.6 Survival. The following provisions will survive any expiration
or termination of the Agreement: Sections 1.3, 1,4, 2 (until all
Customer Equipment is removed from the Co-location Space), 3, 4,
6, 8, 9.5-9.8, 10-13, 14 (for a period of three (3) years),
16.4-16.6, and 17.
17. Miscellaneous Provisions.
17.1 Force Majeure. Except for the obligation to pay money, neither
party will be liable for any failure or delay in its performance
under this Agreement, or for credits under Section 9, due to any
cause beyond its reasonable control, including act of war, acts
of God, earthquake, flood, embargo, riot, sabotage, labor
shortage or dispute, governmental act or failure of the
Internet, provided that the delayed party: (a) gives the other
party prompt notice of such cause, and (b) uses its reasonable
commercial efforts to correct promptly such failure or delay in
performance.
17.2 No Lease. This Agreement is a services agreement and is not
intended to and will not constitute a lease of any real or
personal property. In particular, Customer acknowledges and
agrees that Customer has not been granted any real property
interest in the Co-location Space or other AboveNet premises,
and Customer has no rights as a tenant or otherwise under any
real property or landlord/tenant laws, regulations, or
ordinances,
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17.3 Marketing. Customer agrees that AboveNet may refer to Customer
by trade name and trademark, and may briefly describe Customer's
Business, in AboveNet marketing materials and web site. Customer
hereby grants AboveNet a limited license to use any Customer
trade names and trademarks solely in connection with the rights
granted to AboveNet pursuant to this Section 17.3. All goodwill
associated with Customer's trade name and trademarks will inure
solely to Customer. Customer may display the slogan "Powered by
AboveNet" together with the AboveNet logo, or any other AboveNet
trademark or service mark or logo, on Customer's web sites or
marketing literature only after obtaining AboveNet's written
approval on a case-by-case basis, and provided that Customer
abide by the AboveNet trademark guidelines and such other
guidelines as AboveNet may provide Customer. All goodwill
associated with AboveNet's trade name, trademarks, slogans and
Iogos will inure solely to AboveNet.
17.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any
regulated item or information to anyone outside the U.S. in
connection with this Agreement without first complying with all
export control laws and regulations which may be imposed by the
U.S. Government and any country or organization of nations
within whose Jurisdiction Customer operates or does business.
17.5 Assignment. Neither party may assign its rights or delegate its
duties under this Agreement either in whole or in part without
the prior written consent of the other party, except to a party
that acquires substantially all of the assigning party's assets
or a majority of its Stock as part of a corporate merger or
acquisition. Any attempted assignment or delegation without such
consent will be void. This Agreement will bind and inure to the
benefit of each party's successors and permitted assigns.
17.6 Notices. Any notice or communication required or permitted to be
given hereunder may be delivered personally, deposited with an
overnight courier, sent by confirmed facsimile, or mailed by
registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party
first indicated above, or at such other address as either party
may provide to the other by written notice. Such notice will be
deemed to have been given as of the date it is delivered, or
five (5) days after mailed or sent, whichever is earlier.
17.7 Relationship of Parties. AboveNet and Customer are independent
contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment,
franchise or agency between AboveNet and Customer. Neither
AboveNet nor Customer will have the power to bind the other or
incur obligations on the other's behalf without the other's
prior written consent, except as otherwise expressly provided
herein.
17.8 Choice of Law and Arbitration. This Agreement will be governed
by and construed in accordance with the laws of the State of
California, excluding its conflict of laws principles. Each
party agrees to submit any and all disputes concerning this
Agreement, if not resolved between the parties, to binding
arbitration under one (1) neutral, independent end impartial
arbitrator in accordance with the Commercial Rules of the
American Arbitration Association ("AAA"); provided, however, the
arbitrator may not vary, modify or disregard any of the
provisions contained in this Section 17.8. The decision and any
award resulting from such arbitration shall be final and
binding. The place of arbitration will be at AboveNet's offices.
The arbitrator is not empowered to award damages in excess of
compensatory damages and each party hereby irrevocably waives
any right to recover such damages with respect to any dispute
resolved by arbitration. Both parties shall equally share the
fees of the arbitrator. The language of arbitration will be
English; provided, however that an interpreter may be provided
for any witness that requires an interpreter. The cost of such
interpretation will be borne by the party requesting the
interpreter. Any final decision or award from arbitration under
this Section 17.8 will be in writing and reasoned. The
arbitrator may award attorney's fees to the prevailing party as
determined by the arbitrator with wide discretion considering
both (i) which party bettered its position most by the outcome
of the Arbitration, and (ii) that the parties intended that all
limitations on liability would be enforced by the arbitrator.
Except for attorney's fees as the arbitrator may award as
provided in the previous sentence, each will bear their own
costs and expenses that are reasonable and necessary for
participating in arbitration under this Section 17.8. As part of
any arbitration conducted under this Section 17.8, each party
may: (i) request from the other party documents and other
materials relevant to the dispute and likely to bear on the
issues in such dispute, (ii) conduct no more than five (5) oral
depositions each of which will be limited to a maximum of seven
hours in testimony, and (iii) propound to the other
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party no more than thirty (30) written interrogatories, answers
to which the other party will give under oath. All the dispute
resolution proceedings contemplated in this Section 17.8 will be
as confidential and private as permitted by law. The parties
will not disclose the existence, content or results of any
proceedings conducted in accordance with this Section 17.8, and
materials submitted in connection with such proceedings will not
be admissible in any other proceeding, provided however, that
this confidentiality provision will not prevent a petition to
vacate or enforce an arbitration award, and shall not bar
disclosures required by law. The parties agree that any decision
or award resulting from proceedings in accordance with this
Section 17.8 shall have no preclusive effect in any other matter
involving third parties. All applicable statutes of limitation
and defenses based upon the passage of time will be tolled while
the procedures specified in this Section 17.8 are pending. The
parties will take such action, if any, required to effectuate
such tolling. The arbitration shall be governed by the United
States Arbitration Act and judgement upon the award rendered by
the arbitrator may be entered by any court having jurisdiction.
17.9 Entire Agreement. This Agreement, together with the Order Form
and AboveNet policies referred to in this Agreement represents
the complete agreement and understanding of the parties with
respect to the subject matter herein, and supersedes any other
agreement or understanding, written or oral. This Agreement may
be modified only through a written instrument signed by both
parties. Both parties represent end warrant that they have full
corporate power and authority to execute and deliver this
Agreement end to perform their obligations under this Agreement
and that the person whose signature appears above is duly
authorized to enter into this Agreement on behalf of the
respective party. Should any terms of this Agreement be declared
void or unenforceable by any arbitrator or court of competent
jurisdiction, such terms will be amended to achieve as nearly as
possible the same economic effect as the original terms and the
remainder of this Agreement will remain in full force and
effect. If a conflict arises between Customer's purchase order
terms and this Agreement, this Agreement shall take precedence.
In the area of International, federal, state or local government
orders, Customer's purchase order must contain the following
language: "Notwithstanding any provisions to the contrary on the
face of this purchase order, attachments to this purchase order,
or on the reverse side of this purchase order, this purchase
order is being used for administrative purposes only, and this
purchase order is placed under and subject solely to the terms
and conditions of the AboveNet Network Agreement executed
between Customer and AboveNet."
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