ALCHEMY
COMMUNICATIONS, INC.
1200 West Seventh Street, Suite L1-100
Los Angeles, CA 90017
Ph: (213) 596-3000 Fax: (213) 596-3004
www.alchemy.net
EMERGENCY CONTACT LIST
----------------------
A complete list of contacts is required which will enumerate the appropriate
personnel to be advised in the event of an emergency. This list should be broken
down departmentally, and in order of priority. Please complete and return the
prepared register below via regular mail, fax, or E-mail to
nocstaff@alchemy.net. Alchemy should be immediately notified in writing to
advise of any updates.
# Last Name First Name Address Contact Numbers Access Type*
City, Town, State
- ----------------------------------------------------------------------------
1 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
2 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
3 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
4 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
5 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
6 Home:
Work:
Mobile:
Pager:
- ----------------------------------------------------------------------------
_________________________________________
Authorized Signature
*Access Rights: Full Rights, Remove Equipment, Access Only
ALCHEMY
COMMUNICATIONS, INC.
1200 West Seventh Street, Suite L1-100
Los Angeles, CA 90017
Ph: (213) 596-3000 Fax: (213) 596-3004
www.alchemy.net
EVIDENCE OF INSURANCE REQUIRED
------------------------------
Please provide evidence of insurance in accordance with the below excerpt from
the Alchemy Communications, Inc. Gigabit Data Center Services Agreement:
A. The customer agrees to maintain, at their own expense, during the
entire period of occupancy, for each collocation Space (i)
Comprehensive General Liability Insurance for bodily injury or
property damage, in an amount not less than one million dollars per
occurrence; (ii) Workers' Compensation Insurance, with a limit not
less than five hundred thousand dollars Bodily Injury each accident;
(iii) "All Risk" Property Insurance covering all of Client's personal
property located at GDC, (iv) commercial automotive liability
insurance (bodily injury and property damage) in an amount not less
than one million dollars per accident for all vehicles including
owned, non-owned, leased and hired vehicles; (v) Errors and Omissions
insurance. All property insurance covering customer's property located
in the GDC premises shall expressly waive any right of subrogation on
the part of the insurer against Alchemy, it's officers, directors,
employees, agents and contractors. CUSTOMER FURTHER AGREES TO NAME
ALCHEMY AND THE PARTY FROM WHOM ALCHEMY LEASES IT'S GDC SPACE, AS
"ADDITIONAL INSURED" ON THE APPROPRIATE POLICIES.
B. A reputable insurance company authorized to do business in the state
of California shall issue all policies subject to this provision.
PRIOR TO INSTALLATION OF EQUIPMENT IN CUSTOMER'S COLLOCATION SPACE,
CUSTOMER SHALL FURNISH ALCHEMY WITH CERTIFICATES OF INSURANCE WHICH
EVIDENCE THE MINIMUM LEVELS OF INSURANCE SET FORTH HEREIN. Customer
shall not materially alter or cancel insurance relating to GDC
occupancy without thirty (30) days written notification to Alchemy.
ALCHEMY
COMMUNICATIONS, INC.
1200 West Seventh Street, Suite Ll-100
Los Angeles, CA 90017
Ph: (213) 596-3000 Fax: (213) 596-3004
www.alchemy.net
GIGABIT DATA CENTER SERVICES AGREEMENT
--------------------------------------
As a Gigabit Data Center ("GDC") Customer you agree to be bound by the terms of
the GDC Services Agreement as set forth below. Please read this document
thoroughly and initial at the end of each page in acknowledgement of this
agreement.
1. GENERAL TERMS
- ------------------
A. This document, along with the Gigabit Data Center Service Order(s)
("GDCSO(s)") agreement (s), shall comprise a complete and binding
agreement between Customer and Alchemy. Each GDCSO agreement, and any
amendments thereto, when dated and subscribed by Customer and Alchemy,
shall incorporate the terms and conditions of this Agreement. In the
event of any conflict or inconsistency between this Agreement and the
terms set forth in a GDCSO agreement(s), the terms of the GDCSO
agreement(s) shall in all cases prevail.
B. In connection with the Space made available hereunder, Alchemy shall
perform services which support the overall operation of the Gigabit
Data Center ("GDC"), e.g., janitorial services, environmental systems
maintenance, and power plant maintenance, at no additional charge to
Customer. However, Customer shall be required to maintain the
Collocation Space in an orderly manner and shall be responsible for
the removal of trash, packing, cartons, etc. from the Space. Further,
Customer shall maintain the Space in a safe condition, including but
not limited to the preclusion of storing combustible materials in the
Space.
C. Any option granted to Customer to renew its license to occupy the
Space shall be contingent on the election by Alchemy to continue to
own or lease the Premises in which the Space is located for the
duration of the Renewal Period(s), such election to be exercised at
the sole discretion of Alchemy.
2. GDC SERVICES
- -----------------
A. Collocation Space: Alchemy shall provide Customer with shared or
private data center space as indicated in the GDCSO(s).
Alchemy Gigabit Data Center Agreement - Confidential
B. Connectivity: Alchemy shall provide Customer with connectivity to the
Internet through Alchemy's network as specified in the GDCSO(s).
Connectivity is measured and billed using a 95/5 Rule. The aggregate
of both inbound and outbound bandwidth is sampled at five-minute
intervals throughout the month. Once all samples have been
accumulated, the top 5% of the collected samples are discarded, the
highest remaining sample, rounded to the next full mega bit per second
(Mbps) times the negotiated rate, will be billed. Alchemy shall
provide cross-connectivity, where applicable, for an additional fee.
C. Virtual Hosting: Alchemy shall provide Customer with virtual hosting
on servers owned by either Alchemy or a third party supplier as
indicated in the GDCSO(s).
D. Streaming: Alchemy shall provide Customer with video and audio
streaming services as indicated in the GDCSO(s).
E. Storage: Alchemy shall provide Customer with storage on the EMC
Enterprise Storage System as indicated in the GDCSO(s).
F. Encoding and Production: Alchemy shall provide Customer with encoding
and production services as indicated in the GDCSO(s).
G. Equipment Leasing: Alchemy shall provide Customer with leased
equipment as indicated in a separate Equipment Lease contract.
H. Technical Support: Alchemy shall provide Customer with complete
technical support upon Customer's request and in accordance with
Alchemy's terms and conditions and listed rates.
I. Eyes Hands Support: Alchemy shall provide Customer with assistance to
observe conditions in their Collocation Space and offer light hands
assistance such as shutting off and turning on equipment as directed
by Customer.
3. TERM OF AGREEMENT
- -----------------------
A. Customer's license to occupy the Collocation Space shall begin on the
"Requested Service Date," as set forth in the GDCSO agreement(s) or on
the date Alchemy completes the build-out of the Space, whichever is
later. The minimum term of the Customer's license to occupy the Space
shall be one year, but may be longer as indicated on the GDCSO(s).
B. Should Alchemy fail, for any reason to tender possession of the Space
to Customer on or before the Requested Service Date (specified in the
GDCSO agreement(s) relevant thereto) this Agreement shall not be void
or voidable. If Alchemy fails to tender possession of the Space to
Customer within a sixty (60)
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Alchemy Gigabit Data Center Agreement - Confidential
day period after such Requested Service Date (due to any reason other
than the acts or omissions of Customer), Customer may, upon written
notice to Alchemy, declare the relevant GDCSO agreement(s) null and
void with no further obligation attributed to Customer, and Alchemy
shall refund all fees and charges paid in advance by Customer, except
in the case where the delay was caused by Customer, in which case,
Alchemy shall retain any funds necessary to recover the cost or
obligations incurred on behalf of Customer. Except as provided herein,
Alchemy shall not be liable to Customer in any way as a result of a
delay or failure to tender possession.
C. Following the expiration of the Term for each Space or failure of the
Parties to enter into any Renewal Periods, Customer's license to
occupy the Space and receive services shall continue in effect on a
month-to-month basis upon the same terms and conditions specified
herein, unless terminated by either Customer or Alchemy upon thirty
(30) days prior written notice.
4. TERMINATION
- ---------------
A. Either party shall have the right to terminate this agreement should
the other party breach a material term or condition of this Agreement
and fail to cure such breach within thirty (30) days after receipt of
written notice of the breach, except in the case of failure to make
timely payment to Alchemy, which must be cured within ten (10) days of
the payment due date. Alchemy has the option, at its sole discretion,
to terminate this Agreement should Customer become insolvent or the
subject of bankruptcy proceedings, a receivership, liquidation or a
sale for the benefit of creditors
B. Upon termination or expiration of the Term for each Space, Customer
agrees to do the following: (i) remove the Equipment and other
property that has been installed by Customer or Customer's agent(s)
and return the Space to Alchemy in substantially the same condition as
it was on the date of installation, Alchemy at its sole discretion may
refuse to allow the removal of some or all Customer equipment until
all outstanding amounts owed to Alchemy are paid in full; (ii) pay any
outstanding fees within five (5) days of termination of service; (iii)
return any confidential information it has received from Alchemy and
(iii) return any equipment or supplies that are the property of
Alchemy. In the event such Equipment or property has not been removed
within thirty (30) days of the effective termination or expiration
date, the Equipment shall be deemed abandoned and Customer shall lose
all rights and title thereto.
C. In the event the GDC becomes the subject of a taking by eminent domain
by any authority having such power, Alchemy shall have the right to
terminate this Agreement. Alchemy shall attempt to give Customer
reasonable advance notice of the removal schedule. Customer shall have
no claim against Alchemy for any
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Alchemy Gigabit Data Center Agreement - Confidential
relocation expenses, any part of any award that may be made for such
taking or the value of any unexpired term or renewed periods that
result from a termination by Alchemy under this provision, or any loss
of business from full or partial interruption or interference due to
any termination. However, nothing contained in this Agreement shall
prohibit Customer from seeking any relief or remedy against the
condemning authority in the event of an eminent domain proceeding or
condemnation that affects the Space.
5. DEFAULT
- -----------
A. If Customer fails to perform its obligations, or fails to pay for
services rendered hereunder, Alchemy may, at its sole option and with
written notice, issue a default notice letter to Customer, demanding
the default condition be cured. If the default condition is not
remedied within the time period specified in the notice letter,
Alchemy may then, without the necessity of any further notice,
discontinue performance and terminate this Agreement, for default, and
pursue any other remedies available at law or in equity, including
reimbursement of the cost of collection and reasonable attorney fees.
Alchemy's failure to exercise any of its rights hereunder shall not
constitute or be construed by Customer as being a waiver of any past,
present, or future right or remedy. In the case of Customer's failure
to make timely payments, Alchemy may discontinue any or all services
for any period of time as it deems appropriate without written notice
to Customer, and such action shall not be deemed a breach of this
Agreement by Alchemy.
B. At any time during the term of this Agreement, Alchemy may, at it's
sole option, immediately terminate this Agreement if Customer is not
then maintaining the Equipment solely for the purpose of originating
and/or terminating telecommunications transmissions carried over the
Alchemy Network or as otherwise set forth in this Agreement, or
pursuant to the terms and conditions, if any, contained in any
Collocation Schedule identified herewith.
C. If Customer commits an act of default under any Collocation Schedule
to which this Agreement pertains, Alchemy may, in its sole discretion,
declare Customer to be in default of any and all other Collocation
Schedules then in effect, without the necessity of showing separate
failures, acts or omissions by Customer.
D. If Customer commits an act of default with respect to the purchase of
telecommunications services that would entitle Alchemy under its
separate tariffs and agreements to terminate its services to Customer,
then Alchemy and all Alchemy's Affiliates shall be entitled to
terminate this Agreement and all GDC services to which this Agreement
pertains.
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Alchemy Gigabit Data Center Agreement - Confidential
E. Alchemy may, without notice, suspend or terminate services to customer
if Customer is found to be engaged in unlawful activities or upon the
request to do so by any legal or governmental agencies.
F. At the termination of this agreement for any reason or if Customer has
failed to make timely payments of amounts owed, Alchemy at its sole
discretion may refuse to allow the removal of some or all of Customer
equipment from Alchemy's facilities until all outstanding amounts owed
to Alchemy are paid in full. In order to satisfy outstanding balances
owed, Customer specifically herein consent and agree that Alchemy may
take possession and ownership of all or part of Customer equipment, if
Customer fails to bring all payments up to date within thirty (30)
days of receiving written notice from Alchemy of its intent to take
possession of said equipment. If the value of the equipment in which
Alchemy has taken possession and ownership of has a resale value that
is less than the amount owed, Alchemy is entitled to take whatever
legal actions are necessary to collect the difference.
6. PRICES AND PAYMENT TERMS
- -------------------------------
A. Customer shall pay ALCHEMY monthly recurring fees (the "Recurring
Fees"), which shall include charges for use and occupancy of the Space
(the "Occupancy Fees"), connectivity (or cross-connect fees, if
applicable), power charges and, where applicable, technical support
and system administration. In addition to any Recurring Fees, Customer
shall be charged non-recurring fees for build-out of the Space (the
"Build-Out Charges"), where applicable, Escort charges, and other
services, which shall be set forth in the GDCSO agreement(s). If
Customer requests that Alchemy provide services not delineated herein
or in the GDCSO agreement(s) at any time during the Term, Customer
agrees to pay the fee for such services in effect at the time such
service was rendered. All payments will be made in U.S. dollars. Late
payments hereunder 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 Alchemy determines that
Customer is not creditworthy or is otherwise not financially secure,
Alchemy may, upon written notice to Customer, modify the payment terms
to require assurances to secure Customer's payment obligations
hereunder.
B. All payments required by this Agreement are exclusive of all national,
state, municipal or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding
taxes and obligations and other levies now in force or enacted in the
future, all of which Customer will be responsible for and will pay in
full. Customer agrees to pay or reimburse Alchemy for any applicable
taxes that are levied based on the transactions hereunder, exclusive
of taxes on income and real estate taxes on the GDC. Any such charges
shall be invoiced and payable within the payment terms of this
Agreement.
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Alchemy Gigabit Data Center Agreement - Confidential
Alchemy agrees to provide Customer with reasonable documentation to
support invoiced amounts applied to taxes within thirty (30) calendar
days of receipt of a Customer's written request.
C. The Occupancy Fee and/or Power Charges shall be increased to reflect
any increases incurred by and required under the lease relevant to the
Premises in which the Space is located. Customer shall pay to Alchemy
its pro rata share of any such increases based on the number of square
feet of the Space compared to the number of square feet leased by
Alchemy under the applicable lease. Alchemy shall notify Customer of
any such increase as soon as practicable.
D. Payments shall be due upon Customer's receipt of each monthly invoice.
Late payment charges will be calculated based on 1.5% per month of the
unpaid amount.
E. Charges delineated in the Collocation Schedule for build-out of the
Space shall be invoiced and paid by Customer when invoiced. Alchemy
may require payment of the "Build Out Fees" prior to commencing
construction.
F. Customer agrees to reimburse Alchemy for all reasonable repair or
restoration costs associated with damage or destruction caused by
Customer's personnel, Customer's agent(s) or Customer's
suppliers/contractors or Customer's visitors during the Term or as a
consequence of Customer's removal of the Equipment or property
installed in the Space.
7. ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE AND INSTALLATION OF
- --------------------------------------------------------------------------------
EQUIPMENT
- ---------
A. Before beginning any delivery, installation, replacement or removal
work, Customer must obtain Alchemy 's written approval of Customer's
choice of suppliers and contractors which approval shall not be
unreasonably withheld or delayed. Alchemy may request additional
information before granting approval and may require scheduling
changes and substitution of suppliers and contractors as conditions of
its approval. Approval by Alchemy is not an endorsement of Customer's
supplier or contractor, and Customer will remain solely responsible
for the selection of the supplier or contractor and all payments to
Alchemy for construction work performed on their behalf.
B. Customer shall not make any construction changes or material
alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Equipment, without
obtaining Alchemy's written approval for Customer to have the work
performed. Alchemy reserves the right to perform and manage any
construction or material alterations within the GDC and Collocation
Space areas at rates to be negotiated between the Parties hereto.
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Alchemy Gigabit Data Center Agreement - Confidential
C. Customer's use of the Space, installation of Equipment and access to
the GDC shall at all times be subject to Customer's adherence to the
generally accepted industry standards, security rules and rules of
conduct established by Alchemy for the GDC. Except where advanced
written permission has been given by Alchemy, Customer's access to the
GDC shall be limited to the individuals identified and authorized by
Customer to have such access. Customer agrees not to erect any signs
or devices to the exterior portion of the Space without submitting the
request to Alchemy and obtaining Alchemy's written approval.
D. Customer may not provide, or make available to any third party, space
within Collocation Space without Alchemy's prior written consent. If
Customer should provide, or make available to any third party, space
within the Collocation Space without obtaining the written consent of
Alchemy, Customer shall be in breach of this Agreement and Alchemy may
pursue any legal or equitable remedy, including but not limited to the
immediate termination of this Agreement.
E. Customer is responsible for maintaining the cleanliness of the
Collocation Space. There shall be no trash or dust allowed to
accumulate within the Space. Neither food nor drink is permitted
within the Collocation area, including within individual cages.
G. Customer is responsible for retrieving entry passes from its
terminated employees or others whom Customer no longer wishes to have
access to its Collocation space.
H. Alchemy shall not arbitrarily or discriminatorily require Customer to
relocate the Equipment; however, upon sixty (60) days prior written
notice or, in the event of an emergency, such time as may be
reasonable, Alchemy reserves the right to change the location of the
Space or the GDC to a site which shall afford comparable environmental
conditions for the Equipment and comparable accessibility to the
Equipment. Alchemy and Customer will work together in good faith to
minimize any disruption of Customer's services as a result of such
relocation. Alchemy shall be responsible for the cost of improving the
Space to which the Equipment may be relocated, and for relocation of
Equipment interconnected to Alchemy services, except that Alchemy
shall not be responsible for relocating facilities installed in
violation of this Agreement.
I. All equipment brought into or taken out of the GDC facility must be
cleared through Alchemy's equipment control system. Alchemy shall not
be held responsible for the condition of equipment shipped to the GDC
that arrives in damaged condition.
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Alchemy Gigabit Data Center Agreement - Confidential
8. INSURANCE
- -------------
A. Customer agrees to maintain, at Customer's expense, during the entire
period of occupancy, for each Collocation Space (i) Comprehensive
General Liability Insurance for bodily injury or property damage, in
an amount not less than one million dollars per occurrence; (ii)
Workers' Compensation Insurance, with a limit not less than five
hundred thousand dollars Bodily Injury each accident (iii) "All Risk"
Property insurance covering all of Client's personal property located
at the GDC, (iv) commercial automobile liability insurance (bodily
injury and property damage) in an amount not less than one million
dollars per accident for all vehicles including owned, non-owned,
leased and hired vehicles; (v) Errors and Omissions insurance. All
property insurance covering customer's property located in the GDC
premises shall expressly waive any right of subrogation on the part of
the insurer against Alchemy, its officers, directors employees, agents
and contractors. Customer further agrees to name Alchemy and the party
from whom Alchemy leases its GDC space, as "Additional Insured" on the
appropriate policies.
B. A reputable insurance company authorized to do business in the state
of California shall issue all policies subject to this provision.
Prior to installation of equipment in Customer's collocation space,
customer shall furnish Alchemy with certificates of insurance which
evidence the minimum levels of insurance set forth herein. Customer
shall not materially alter or cancel insurance relating to GDC
occupancy without notification to Alchemy of not less than thirty
days.
9. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
- --------------------------------------------------
A. Equipment: Customer represents and warrants that it owns or has the
legal right and authority, and will continue to own or have such right
and authority during the term of this Agreement, to place and use the
Customer Equipment as contemplated by this Agreement. Customer further
represents and warrants that its placement, arrangement, and use of
the Customer Equipment in the Gigabit Data Center complies with the
Customer Equipment Manufacturer's environmental and other
specifications.
B. Customer's Business: Customer represents and warrants that Customer's
services, products, materials, data, information and equipment used in
connection with this Agreement and Customer's use of GDC Services
(collectively, "Customer's Business") does not as of the Installation
Date, and will not during the term of this Agreement operate in any
manner that would violate any applicable federal, state or local law
or regulation or infringe in any way upon the rights of third parties.
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Alchemy Gigabit Data Center Agreement - Confidential
C. Breach of Warranties: In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to
any other remedies available in law or equity, Alchemy shall have the
right, at Alchemy's sole discretion, to suspend any related GDC
Services if deemed reasonably necessary by Alchemy to prevent any harm
to its business.
10. DISCLAIMERS AND LIMITATION OF LIABILITY
- ------------------------------------------------
A. The collocation space is accepted "as is" by customer. Customer
acknowledges that no representation has been made by alchemy as to the
fitness of the collocation space for customer's intended purpose.
Except for the warranties set forth in this article, there are no
warranties, whether express, implied, oral, or written, with respect
to the collocation space or services covered or furnished pursuant to
this agreement, including but not limited to, any implied warranty of
merchantability or fitness for a particular purpose. Moreover, the
remedies provided in this article are exclusive and in lieu of all
other remedies.
B. Customer and its representatives visit the GDC at their own risk and
Alchemy assumes no liability for any harm to such persons resulting
from any cause other than Alchemy's negligence or willful misconduct
resulting in personal injury to such visitors.
C. Alchemy assumes no liability for damage or loss relating to customers
business. To the extent Alchemy is liable for any damage to or loss of
Customer's equipment, such liability shall be limited solely to the
then-current value of Customer's equipment.
D. The liability of Alchemy for damages arising out of the services
provided herein, including, without limitation, mistakes, omissions,
interruptions, delays, tortious conduct or errors, or failure to
furnish space, whether caused by acts of commission or omission, shall
be limited to a prorated refund of the charges paid by client for the
use of the space. The receipt of such refunds shall be the sole remedy
afforded to customer.
E. Customer is responsible for providing Alchemy with emergency contacts,
including phone numbers and pager numbers. Alchemy shall use
reasonable efforts to contact Customer in the event of a malfunction
affecting Customers equipment (e.g. a power outage affecting
Customer's equipment). However, Alchemy shall not be liable for
damage, which may occur as a result of an inability to make contact
with Customer's emergency representative.
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Alchemy Gigabit Data Center Agreement - Confidential
11. CONFIDENTIAL INFORMATION
- ------------------------------
A. 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 and 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.
B. 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; or (iv) is independently developed by the
receiving party.
12. NON-SOLICITATION
- ---------------------
Customer understands and acknowledges that; due to the highly
technical nature of Alchemy's business Alchemy would suffer
significant financial damage from the loss of GDC or other Alchemy
employees. Therefore, Customer agrees that it shall refrain, during
the term of this Agreement and for a period of one year after the
expiration of this Agreement, from directly or indirectly employing or
seeking or attempting to employ or solicit for employment, in any
capacity (whether as a full or part time employee or as a consultant
or independent contractor) any person who is employed at Alchemy.
13. EXCUSED PERFORMANCE
- -------------------------
Neither Party shall be liable to the other Party under this Agreement
for any failure nor delay in performance that is due to causes beyond
its reasonable control, including but not limited to, acts of nature,
governmental actions, fires, civil disturbances, interruptions of
power, or transportation problems.
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Alchemy Gigabit Data Center Agreement - Confidential
14. ASSIGNMENTS OR TRANSFER
- ------------------------------
Customer shall not assign or transfer the rights or obligations
associated with this Agreement, in whole or in part, without Alchemy's
prior written consent.
15. PUBLICITY
- --------------
Customer shall not use Alchemy's name in publicity or press releases
without Alchemy's prior written consent.
16. LIMITATION OF LIABILITY
- ------------------------------
A. In no event shall Alchemy or any of its officers, directors, agents,
contractors or employees, be liable for any loss of profit or revenue
or for indirect, incidental, special, punitive or exemplary damages
incurred or suffered Customer arising from or pertaining to Customer's
use or occupancy of the Collocation Space including, without
limitation, damages arising from interruption of electrical power or
HVAC services.
B. Customer shall indemnify and hold harmless Alchemy, its officers,
directors, agents, contractors and employees, from and against any and
all third party claims, costs, expenses or liabilities arising from or
in connections with Customer's use of the GDC facility. Customer
further agrees to indemnify Alchemy against Customer's acts of
negligence resulting in damage to third parties.
17. FORCE MAJEUR
- ------------------
Neither party shall be deemed in default of this Agreement to the
extent that performance of their obligations or attempts to cure any
breach were delayed or prevented by acts of nature, including
earthquakes and floods, fire, natural disaster, accident, acts of
government, labor strikes or any other cause beyond the control of
such party.
18. GOVERNING LAW
- -------------------
This Agreement shall be governed and construed by the laws of the
State of California except as they pertain to its conflict of law
provisions. The courts of the State of California, County of Los
Angeles shall have jurisdiction over any legal disputes relating to or
in connection with this Agreement.
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Alchemy Gigabit Data Center Agreement - Confidential
19. ENTIRE AGREEMENT
- ----------------------
This Agreement constitutes the entire understanding between the
parties and supercedes all other agreements, whether written or oral.
This Agreement may not be modified except in a writing, which is
signed, by both parties or their duly authorized representatives.
20. NOTICE
- -----------
Any and all notices to be provided under this agreement shall be in
writing. Notice shall be considered received, delivered and effective
three (3) business days following posting when mailed, postage
prepaid, by United States mail (certified or registered mail, return
receipt requested), addressed to the party to be notified. If
delivered in person, notice shall be considered received, delivered
and effective the date so delivered. For purposes of notice, the
addresses of the parties, until changed as herein provided, shall be
as follows. If intended for Alchemy, shall be addressed: Alchemy
Communications, Inc., 1200 West 7th Street, Suite Ll-100, Los Angeles,
CA 90017, attention: Jamie Daquino; with a copy addressed to: Alchemy
Communications, Inc., 1200 West 7th Street, Suite L1-100, Los Angeles,
CA 90017, attention: Zane Alsabery. If intended for Customer, shall be
addressed: _______________________________________, attention:
____________________. Any party hereto, by written notice to the other
party, may change the address for notices to be sent to them.
__________________________________________
Authorized Signature Date
__________________________________________
Name (printed)
__________________________________________
Title
__________________________________________
Company
Page 12 of 12
ALCHEMY
COMMUNICATIONS, INC.
1200 West Seventh Street, Suite Ll-100
Los Angeles, CA 90017
Ph: (213) 596-3000 Fax: (213) 596-3004
www.alchemy.net
CLIENT ACCESS AUTHORIZATION LIST
--------------------------------
An all-inclusive list of personnel authorized to access the GDC is required.
This list should indicate the respective level(s) of access to be granted, and
should also specify the appropriate contact from whom any alterations to this
list will be accepted. The following is an excerpt from the Alchemy
communications, Inc. Gigabit Data Center Services Agreement:
A. Customer's use of the Space, installation of Equipment and access to the
GDC shall at all times be subject to Customer's adherence to the generally
accepted industry standards, security rules and rules of conduct
established by Alchemy for the GDC. EXCEPT WHERE ADVANCED WRITTEN
PERMISSION HAS BEEN GIVEN TO ALCHEMY, CUSTOMER'S ACCESS TO THE GDC SHALL BE
LIMITED TO THE INDIVIDUALS IDENTIFIED AND AUTHORIZED BY CUSTOMER TO HAVE
SUCH ACCESS.
Please complete and return the below list via regular U.S. mail, fax, or E-mail
to NOCSTAFF@ALCHEMY.NET
--------------------
Alchemy should be immediately notified in writing to advise of any updates.
LAST NAME* FIRST NAME* DATE AUTHORIZATION GRANTED TYPE OF ACCESS**
COMMENTS
*Appropriate identification (i.e. driver's license, state identification card or
passport) may be required for verification.
**Access Rights: Full Rights, Remove Equipment, Access Only
______________________ ____________________
Authorized Signature Date
ALCHEMY COMMUNICATIONS, INC
Client Access Authorization List
LAST NAME* FIRST NAME* DATE TYPE OF COMMENTS
AUTHORIZATION ACCESS**
GRANTED
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
* Appropriate identification (i.e. driver's license, state identification
card or passport) may be required for verification.
** Access Rights: Full Rights, Remove Equipment, Access Only
_____________________ ____________________
Authorized Signature Date
ALCHEMY COMMUNICATIONS, INC.
GIGABIT DATA CENTER SERVICE ORDER
Customer Name: Nettaxi Online Communities, Inc. Date February 16, 2001
Address: 1696 Dell Ave.
Campbell, CA. 95008 Sales Rep. JMD
Contact Name: Robert A. Rositano Contract No. 825
Telephone: (408) 879-9880
Fax: (408) 374-4929 Terms Net 30
E-Mail Address: rar@hq.nettaxi.com
------------------
Non-Recurring Monthly
Description Qty. Unit Price Fees Fees Total
- ------------------------------- --- --------- ---------- ---------- ----------
SPACE REQUIREMENTS
- ------------------
DEDICATED RACK SPACE
Individual Servers $ - $ -
1/2 Rack $ - $ -
Full Rack $ $ -
CUSTOM SPACE
Secured Cabinet (7'x19"x36") $ - $ -
Standard Private Cage (7'x8') $ - $ -
Custom Cage $ - $ -
CONNECTIVITY*
- -------------
Connectivity / Mbps 25 $ 450.50 $ - $13,500.00 $13,500.00
Additional Switches $ - $ -
Power $ - $ -
NON-RECURRING COSTS
- -------------------
One time fee 1 $ - $12,000.00 $ - $12,000.00
TECHNICAL SUPPORT
- -----------------
Premium Network Services 1 $4,995.00 $ - $ 4,995.00 $ 4,995.00
Professional Support Package 53 $ 175.00 $ - $ 9,275.00 $ 9,275.00
========== ========== ==========
TOTAL $12,000.00 $27,770.00 $39,770.00
REMARKS: *Connectivity measured in Megabits/second using 95/5 Rule (measured
at 5 minutes avg., excluding top 5%), charged in Mbps. The first month's Monthly
Fees and the Non-Recurring Fees are due and payable with the signing of this
agreement. This agreement is subject to customer's credit being approved by
Alchemy.
TERM:[X]1 YEAR [ ]2 YEARS [ ]3 YEARS [ ]N/A BY SIGNING THIS DOCUMENT YOU
ACKNOWLEDGE YOUR ACCEPTANCE OF THIS
CONTRACT START DATE: 02/01/01 SERVICE ORDER AND AGREE AND
CONTRACT END DATE: 01/31/04 TO THE TERMS CONDITIONS OF
SERVICES THE GIGABIT DATA CENTER
ALCHEMY COMMUNICATIONS, INC. CUSTOMER: NETTAXI ONLINE COMMUNITIES, INC.
- ---------------------------- -----------------------------------------
Name: /s/ Zane Alsaberry Name: /s/ Robert A. Rositano, Jr.
----------------------- ---------------------------------
Signed:_____________________ Signed:_______________________________
Title:______________________ Title:________________________________
Date:_______________________ Date:_________________________________