EXHIBIT 10.57
EXODUS COMMUNICATIONS, INC.
MASTER SERVICES AGREEMENT
AGREEMENT No. _______
THIS MASTER SERVICES AGREEMENT (this "Agreement") is made effective as of the
Acceptance Date ( ____________, 199__ ) indicated in the Services and Price Form
attached hereto as Attachment I, by and between Exodus Communications, Inc., a
California corporation doing business at 2650 San Tomas Expressway, Santa Clara,
California 95051 ("Exodus") and the customer identified below ("Customer").
A. Exodus is in the business of providing managed Internet data center
services to its Customers.
B. Customer desires to engage Exodus to provide such services to Customer,
and Exodus desires to provide such services, on the terms and conditions of this
Agreement.
C. Customer and Exodus have agreed to enter into this Agreement for
Exodus's provision of, and Customer's payment to Exodus for such services.
This Agreement, including all Attachments hereto listed below, which are
incorporated herein by this reference, constitutes the complete and exclusive
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces any and all prior or contemporaneous discussions,
negotiations, understandings and agreements, written and oral, regarding such
subject matter.
EXODUS COMMUNICATIONS, INC. Customer Name: INTERNET ASSOCIATES
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2650 San Tomas Expressway Address: 2165 S. BASCOM AVE
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Santa Clara, CA 95051 CAMPBELL, CA 95008
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Phone:(408) 346-2200 Phone: 408-260-6500
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Fax:(408) 346-2206 Fax: 408-260-6601
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Signature: _____________________ Signature: ______________________
Print Name: ___________________ Print Name: ____________________
Title: _________________________ Title: __________________________
Date: __________________________ Date: ___________________________
INCLUDES: ____ ATTACHMENT I: SERVICES AND PRICE ORDER FORM
____ ATTACHMENT 2: TERMS AND CONDITIONS
____ ATTACHMENT 3: RULES AND RFGULATIQNS
____ ATTACHMENT 4: CUSTOMER EQUIPMENT
____ ATTACHMENT 5: REGISTRATION FORM
____ ATTACHMENT 6: NEGOTIATED CHANGES
Exodus Communications, Inc. Confidential
EXODUS COMMUNICAT1ONS, INC.
INTERNET DATA CENTER SERVICES
ORDER FORM
Customer Name: Nettaxi Online Communities
Form Date: 4/I2/99
Form No: NT-499
IMPORTANT INFORMATION:
(1) By submitting this Internet Data Center Services Order Form (Form) to
Exodus Communications, Inc. (Exodus), Customer hereby places an order for
the Internet Data Center Services described herein pursuant to the terms
and conditions of the Internet Data Center Services Agreement between
Customer and Exodus (IDC Agreement).
(2) Billing, with the exception of Setup Fees, will commence on the earlier of
the Installation Date indicated below or the date Customer actually
installs its equipment or Exodus begins providing Internet Data Center
Services. All Setup Fees will be billed upon receipt of a Customer signed
IDC Services Order Form.
(3) Exodus will provide the Internet Data Center Services pursuant to the terms
and conditions of the IDC Agreement, which incorporates this Form. The
terms of this Form supersede, and by accepting this Form, Exodus hereby
rejects any conflicting or additional terms provided by Customer in
connection with Exodus' provision of Internet Data Center Services. If
there is a conflict between this Form and any other Form provided by
Customer and accepted by Exodus, the Form with the latest date will
control.
(4) Exodus will not be bound by or required to provide lnternet Data Center
Services pursuant to this Form or the IDC Agreement until each is signed by
an authorized representative of Exodus.
Customer to complete:
CUSTOMER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER
Installation Date: 4/19/99
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Submitted By: /s/ Submission Date: 4/15/1999
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(Authorized Signature) (Effective Date
of IDC Agreement)
Print Name:
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Title: V.P and I.S.
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Exodus Communications, Inc. Acceptance
/s/ Sue Irvine Date: 6/4/99
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(Authorized Signature)
CUSTOMER'S INITIALS BS
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EXODUS COMMUNICATIONS, INC. PROPRIETARY AND CONFIDENTIAL (Rev 6/05)
ATTACHMENT 2
TERMS AND CONDITIONS
1.DEFINITIONS.
1.1 "Customer Area" means the portion of the Internet Data Centers made
available to Customer hereunder for the placement of Customer Equipment
1.2 "Customer's Business" means Customer's services and/or products to be made
available via the Internet in connection with this Agreement.
1.3 "Customer Equipment" means Customer's computer hardware and other tangible
equipment identified in Attachment 4, as amended from time to time, that
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Customer places in the Customer Area pursuant to this Agreement. All changes in
Customer Equipment, including but not limited to installation and removal of
Customer Equipment, must be approved by Exodus.
1.4 "Customer Materials" means all software,
data, information contained in documentation, and other information and
intangibles used by Customer to operate, install, and/or maintain Customer's
Business through the Customer Equipment or provided to Exodus by Customer for
such purposes.
1.5 "Installation Date" means the earlier to occur of (i) the date indicated in
the Services and Price Form by which Customer intends to install Customer
Equipment in the Customer Area and (ii) the date the Customer Equipment is
actually installed and operational.
1.6 "Internet Date Centers" means the sites owned or leased by Exodus containing
the Customer Area and equipment used by Exodus to provide Internet Data Center
Services.
1.7 "Internet Data Center Services" means the services and other benefits to be
provided by Exodus to Customer under this Agreement, as described in Attachment
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1 as amended from time to time, or substantially similar services if, in the
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reasonable opinion of Exodus, such substantially similar services would provide
Customer with substantially similar benefits.
1.8 "Representatives" means the individuals identified and authorized by
Customer to have access to the Internet Data Centers and the Customer Area in
accordance with this Agreement, whose names are listed in Section 4.4 herein.
The Representatives may be changed by Customer from time to time by written
notice to Exodus.
1.9 "Rules and Regulations" means the general rules and regulations issued by
Exodus relating to its provision of Internet Data Center Services to its
customers, the current version of which is attached as Attachment 3, which may
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be updated by Exodus from time to time.
2 INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, during the term of this
Agreement, Exodus will provide to Customer the Internet Data Center Services.
3. FEES AND BILLING.
3.1 Fees. Customer will pay all fees due hereunder according to the Services and
Price Form attached as Attachment 1, as amended from time to time. Exodus may
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increase the fees after the first (1st) anniversary of the Installation Date,
and Customer agrees to pay such increased fees.
3.2 Billing Commencement. Billing for Internet Data Center Services indicated
in the initial Services and Price Form shall commence on the Installation Date,
regardless of whether Customer has installed the Customer Equipment or commenced
use of the Internet Data Center Services; provided, however, that if Customer is
unable to install the Customer Equipment and/or use the Internet Data Center
Services by the Installation Date due to the fault of Exodus, billing will not
begin until the date Exodus has remedied such fault. In the event that the
Services and Price Form is amended after the Installation Date to include
additional Internet Data Center Services, billing for such services shall
commence on the date Exodus first provides such additional Internet Data Center
Services to Customer.
3.3 Billing and Payment Terms. Customer will be billed monthly in advance of
the provision of Internet Data Center Services, and payment of such fees will be
due within thirty (30) days of the date of each Exodus invoice. All payments
will be made in U.S. dollars at Exodus' address set forth in this Agreement or
at such other address, as Exodus may from time to time indicate by proper notice
to Customer. Late payments hereunder will accrue interest at a rate of one and
one-half percent (1 /2%) per month, or the highest rate allowed by applicable
law, whichever is lower. If in its judgment Exodus determines that Customer is
not creditworthy or is otherwise not financially secure, Exodus may, upon
written notice to Customer modify' the payment terms to require full payment
before the provision of Internet Data Center Services or other assurances to
secure Customer's payment obligations hereunder.
3.4 Taxes. 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, except for taxes based on
Exodus' net income.
4. CUSTOMER'S OBLIGATIONS.
4.1 Compliance with Law. Customer agrees that in connection with the exercise
of its rights and performance of its obligations under this Agreement, Customer
will comply with all applicable laws and regulations. Customer acknowledges
that Exodus exercises no control whatsoever over the content of the information
passing through its Internet Data Centers, and that it is the sole
responsibility of Customer to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
4.2 Compliance with Rule and Regulations. Customer agrees that it will comply
at all times with Exodus' Rules and Regulations in existence from time to time.
4.3 Customer's Costs. CUSTOMER AGREES
THAT IT WILL BE SOLELY RESPONSIBLE, AND AT ECODUS'S REQUEST WILL REIMBURSE
EXODUS, FOR ALL COSTS AND EXPENSES (OTHER THAN THOSE INCLUDED AS PART OF THE
INTERNET DATA CENTER SERVICES), AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS
USE OF, OR ACCESS TO, THE INTERNET DATA CENTERS AND/OR CUSTOMER AREA, INCLUDING
BUT NOT LIMITED TO ANY UNAUTHORIZED USE OF ANY ACCESS DEVICES PROVIDED BY EXODUS
HEREUNDER. EXCEPT WITH THE ADVANCED WRITTEN CONSENT OF EXODUS, CUSTOMER'S
ACCESS TO THE INTERNET DATA CENTERS WILL BE LIMITED SOLELY TO ITS
REPRESENTATIVES LISTED ON THE REGISTRATION FORM ATTACHED HERETO AS ATTACHMENT 5,
AS AMENDED FROM TIME TO TIME.
4.4 Access and Security. CUSTOMER WILL. BE FULLY RESPONSIBLE FOR ANY CHARGES,
COSTS, EXPENSES (OTHER THAN THOSE INCLUDED IN THE INTERNET DATA CENTER
SERVICES), AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS USE OF, OR ACCESS TO,
THE INTERNET DATA CENTERS AND/OR CUSTOMER AREA, INCLUDING BUT NOT LIMITED TO ANY
UNAIJTHORIZED USE OF ANY ACCESS DEVICES PROVIDED BY EXODUS HEREUNDER. EXCEPT
WITH THE ADVANCED WRITTEN CONSENT OF EXODUS, CUSTOMER'S ACCESS TO THE INTERNET
DATA CENTERS WILL BE LIMITED SOLELY TO ITS REPRESENTATIVES LISTED ON THE
REGISTRATION FORM ATTACHED HERETO AS ATTACHMENT 5, AS AMENDED FROM TIME TO TIME.
4.5 No Competitive Services. Customer may not
at any time permit any Internet Data Center Services to be utilized for the
provision of any services that compete with any Exodus services, without Exodus'
prior written consent.
4.6 Insurance
(a) Minimum Levels. Customer will keep in force and effect during the terms
of this Agreement (I) comprehensive general liability insurance in an amount not
less than $5 million per occurrence for bodily injury and property damage; (ii)
employer's liability insurance in an amount not less than $I million per
occurrence; and (iii) workers compensation insurance in any amount not less than
that required by applicable law. Customer also agrees that it and its agents
(including contractors and subcontractors) will maintain other insurance at
levels no less than those required by applicable law and customary in Customer's
and its agents' industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish Exodus with certificates
of insurance which evidence the minimum levels of insurance set forth above.
(c) Naming Exodus as an Additional Insured.
Customer agrees that prior to the installation of any Customer Equipment.,
Customer will cause its insurance provider(s) to name Exodus as an additional
insured and notify Exodus in writing of the effective date thereof.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment and Customer Materials. Customer represents and
warrants that it owns or has the legal right and authority, and will continue to
own or maintain the legal right and authority during the term of this Agreement,
to place and use the Customer Equipment as contemplated by this Agreement, and
to use, modify, transmit, and distribute the Customer Materials without
infringing, misappropriating, or otherwise violating any intellectual property
rights of any third party. Customer further represents and warrants that its
placement, arrangement, and use of the Customer Equipment in the Internet Data
Centers complies with the Customer Equipment and Customer Materials
Manufacturer's environmental and other specifications.
(b) Rules and Regulations. Customer has read the Rules and Regulations
and represents and warrants that Customer and Customer's Business are currently
in full compliance with the Rules and Regulations, and will remain so at oil
times during the term of this Agreement.
(c) Customer's Business. Customer is familiar with the laws and
regulations applicable to Customers Business. Customer represents and warrants
that Customer's Business does not as of the Installation Date, and will not
during the term of this Agreement, contain or transmit any material that would
violate any applicable local, state, national, foreign or international law. In
the event of any breach, or reasonably anticipated breach, of such warranty, in
addition to any other remedies available at law or in equity, Exodus will have
the right immediately, in Exodus' sole discretion: (i) to terminate or restrict
access to any such materiaIs in any manner; and/or (ii) to suspend any related
Internet Data Center Services.
5.2 Warranties and Disclaimers by Exodus.
(a) Service Level Warranty. In the event Customer is unable to transmit
and receive information from Exodus' Internet Data Centers to other portions of
the Internet and Customer notifies Exodus immediately of such event and Exodus
determines in its reasonable judgment that such inability was caused by Exodus'
failure to provide Internet Data Center Services for reasons within Exodus'
reasonable control and not as a result of any actions or inactions of Customer
or any third parties, Exodus will, upon Customer's request, credit Customer's
account as follows: If Exodus failed to provide the Internet Data Center
Services for (i) more than two (2) consecutive hours in a calendar month, Exodus
will credit Customer's account the connectivity charges for one (I) day of
service; and (ii) more than eight (8) consecutive hours in a calendar month.
Exodus will credit Customer's account the connectivity charges for one (I) wcek
of service. The foregoing credits shall not be cumulative, regardless of the
number of such occurrences. Exodus' scheduled maintenance of the Internet Data
Centers and Internet Data Center Services, as described in the Rules and
Regulations, shall not be deemed to be a failure of Exodus to provide Internet
Data Center Services. THIS SECTION 5.2(a) STATES CUSTOMER'S SOLE AND EXCLUSIVE
REMEDY (OTHER THAN TERMINATION OF THIS AGREEMENT) FOR ANY FAILURE BY EXODUS TO
PROVIDE INTERNET DATA CENTER SERVICES.
(b) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN
SUBSECTION (a) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS PROVIDED AND SPACE
MADE AVAILABLE BY EXODUS HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVABABLE ON
AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA CENTERS IS AT ITS OWN
RISK. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXODUS
DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES PROVIDED HEREUNDER WILL
BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(c) Disclaimer of Actions Caused by and/or Under the Control of
Third Parties. WHILE EXODUS' INTERNET DATA CENTER SERVICES PROVIDE CUSTOMERS
WITH CONNECTIVITY TO THE INTERNET. EXODUS DOES NOT AND CANNOT CONTROL THE FLOW
OF INFORMATION TO OR FROM EXODUS INTERNET DATA CENTERS TO 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 EXODUS' CUSTOMERS'
CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED.
ALTHOUGH EXODUS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT
DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT
THEY WILL NOT OCCUR ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY
RESULTING FROM OR REATED TO SUCH EVENTS.
6. LIMITATIONS OF LIABILITY.
6.1 Personal Injury. EACH REPRESENTATIVE, AND ANY OTHER PERSONS, VISITING THE
INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO LIABILITY
WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING IN PERSONAL INJURY TO SUCH
PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Materials
(a) CERTAIN CUSTOMER EQUIPMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER
EQUIPMENT LOCATED ON CYBERRACKS, MAY BE DIRECTLY ACCESSABLE BY OTHER CUSTOMERS.
EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER
EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. TO THE EXTENT EXODUS 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.
(b) EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY
CUSTOMER MATERIALS RESULTING FROM ANY CAUSE WHATSOEVER.
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1 AND D 6.2, IN NO EVENT
WILL EXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR:
(a) ANY CLAIMS ARISING OUT OF OR RELATED TO THE CUSTOMER EQUIPMENT, THE
CUSTOMER MATERIALS, THE CUSTOMER'S BUSINESS, OR OTHERWISE; AND
(b) ANY LOST ADVERTISING OR OTHER 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 EQUIPMENT OR CUSTOMER MATERIALS, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING
nEGLIGENCE), PRODUCTS LIABILITY OR OTHERWISE.
6.4 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, EXODUS'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 EXODUS HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD.
6.5 Customer's Insurance. Customer agrees that it will not pursue any claims
against Exodus for any liability Exodus may have under this Agreement until
Customer first makes claims against Customer's insurance provider(s) and such
insurance provider(s) finally resolve(s) such claims.
6.6 Basis of the Bargain: Failure of Essential Purpose. Customer acknowledges
that Exodus has set its prices and entered into this Agreement in reliance upon
the limitations of liability and the disclaimers of warranties and damages 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 found
to have failed of their essential purpose.
7. Indemnification
7.1 Customer's Indemnification of Exodus. Customer will indemnify and hold
Exodus, its affiliates, shareholders, officers, directors, employees, agents,
representatives, and customers harmless from and against any and all costs,
liabilities, losses, and expenses (including, but not limited to, reasonable
attorneys' fees and fees of experts) arising out of any claim, suit, action, or
proceeding (each, an "Action"), and Customer will pay any settlement reached or
judgment entered thereon against Exodus or such third party, to the extent such
Action arises from an allegation that any of the following has occurred or will
occur:
(a) with respect to the Customer's Business, Customer Materials, or
Customer Equipment: (i) infringement of any intellectual property rights, (ii)
misappropriation of any intellectual property rights; (iii) defamation, libel,
slander, obscenity, pornography, or violation of the rights of privacy or
publicity; or (iv) spamming, or any other offensive, harassing or illegal
conduct or violation of the Rules and Regulations; or
(b) any damage or destruction to the Customer Area, the Internet Data
Centers or the equipment of Exodus or any other customer by Customer or
Representative(s) or Customer's designess; or
(c) any other damage arising from the Customer Equipment, Customer
Materials, or Customer's Business.
7.2 Exodus' Indemnification of Customer. Exodus will indemnify and hold
Customer, its affiliates, shareholders, officers, directors, employees, agents,
and Representatives harmless from and against any and all reasonable costs,
liabilities, losses, and expenses ( including, but not limited to, reasonable
attorneys' fees) arising out of (i) the infringement of any third party
registered U.S. copyright or issued U.S. patent resulting
7.3 Notice. Each pazty will provide the other party prompt written notice upon
of the existence of any such event of which it becomes aware, and an opportunity
to participate in the defense thereof.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of two (2) years from
the Installation Date, unless earlier terminated according to the provisions of
this Section 8. The Agreement will automatically renew for additional terms of
one (I) year each.
8.2 Termination.
(a) For Convenience. Either party may terminate this Agreement for
convenience at any time effective after the second (2nd) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other parry.
(b) For Cause. Either party will have the right to terminate this
Agreement if (i) the other party breaches any term or condition of this
Agreement and fails to cure such breach within thirty (30) days after written
notice of the same, except in the case of failure to pay fees, which must be
cured within five (5) days after receipt of written notice from Exodus; (ii) the
other party 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 (iii) the other party 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.
(c) By Customer for Failure to Agree on Fee Increases. If Exodus increases
the fees after the first (1") anniversary of the Installation Date, Customer may
terminate this Agreernent if it refuses to pay such increased fees by providing
written notice to Exodus within thirty (30) days of the effective date of any
such increase. The effective date of such termination will be ninety (90) days
after Exodus receives notice of such termination.
8.3 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.
8.4 Effect of Termination. Upon the effective date of expiration or termination
of this Agreement:
(a)Exodus will immediately cease providing the Internet Data Center
Services;
(b)any and all payment obligations of Customer which have accrued as of
such expiration or termination will become due immediately;
(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 the Internet Data Centers all Customer
Equipment, Customer Materials, and any of its other property within the Internet
Data Centers within five (5) days of such expiration or termination and return
the Customer Area to Exodus in the same condition as it was on the Installation
Date, normal wear and tear excepted. If Customer does not remove such property
within such five-day period, Exodus will have the option to (i) move any and all
such property to secure storage and charge Customer for the cost of such removal
and storage, and/or (ii) liquidate the property in any reasonable manner.
8.5 SurvivaL. The following provisions will Survive any expiration or
termination of the Agreement: Sections 3, 4, 5,6,7, 3,9, and 10.
9. CONFIDENTIAL 1NFORMATION.
9.1 ConfidentiaL Information. Each party acknowledges that it will have access
to certain confidential information and materials 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 lnforrnation 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.
9.2 Exceptions. 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.
10. MISCELLANEOIJS PROVISIONS.
10.1 Governing Law. This Agreement is made under and will be governed by and
construed in accordance with the laws of the State of California, United States
of America (except that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations
Convention on the International Sale of Goods.
10.2 Arbitration. Any dispute relating to the terms, interpretation or
performance of this Agreement (other than claims for preliminary injunctive
relief or other pre-judgment remedies) will be resolved at the request of either
party through binding arbitration. Arbitration will be conducted in Santa Clara
County, California, under the rules and procedures of the Judicial Arbitration
and Mediation Society ("JAMS"). The parties will request that JAMS appoint a
single arbitrator possessing knowledge of online services agreements; however
the arbitration will proceed even if such a person is unavailable.
10.3 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 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.
10.4 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. Customer
acknowledges and agrees that it has been granted only a license to occupy the
Customer Space and use the Internet Data Centers in accordance with this
Agreement, Customer has not been granted any real property interest in the
Customer Space or Internet Data Centers, and Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations, or
ordinances. For good cause, Exodus may suspend the right of any Representative
or other Customer personnel to visit the Internet Data Centers.
10.5 Inherently Dangerous Applications. The Internet Data Center are not
intended nor provided for use in connection with, and Customer will not use them
for, any nuclear, aviation, mass transit, life-support, or any other inherently
dangerous applications or services, the
failure of which could result in denth, personal injury, catastrophic damage, or
mass destruction.
10.6 Marketing. Customer agrees that Exodus may refer to Customer by trade
name and trademark, and may briefly describe Customer's Business, in Exodus'
marketing materials and web site. Customer hereby grants Exodus a license to use
any Customer trade names, trademarks or service marks solely in connection
with the rights granted to Exodus pursuant to this Section10.6.
10.7 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. Govermnent and any country or organization of nations within
whose jurisdiction Customer operates or does business.
10.8 Non-.Solicitation. During the period beginning on the 1ntallation Data
and ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, Customer and its affiliates agree that
they will not, directly or indirectly, solicit or attempt to solicit for
employment any persons employed by Exodus during such period.
10.9 Severability. In the event any provision of this Agreement is held by a
tribunal of competent jurisdiction to be contrary to the law, the remaining
provisions of this Agreerntmt will remain in full force and effect.
10.10 Waiver. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
10.11 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 that this Agreement may be assigned in whole
as part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets, provided that it notifies such other parry at
least thirty (30) days prior to the effective date of such event. 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.
10.12 Notices. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, 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
indicated on the signature page hereof, or at such other address as may
hereafter be furnished in writing by either party hereto to the other. Such
notice will be deemed to have been given as of the date it is delivered, mailed
or sent by facsimile or overnight courier, whichever is earlier.
10.13 Counterparts. This Agreement may be 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.
10.14 Relationship of Parties. Exodus and Customer are independent contractors
and this Agreement will not establish any relationship of partnership, joint
venture, employment, franchise or agency between Exodus and Customer. Neither
Exodus 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.
10.15 Priority. The following order of precedence will govern any conflict or
discrepancy between any portions of this Agreement:
(1) Attachment 6.
(2) Attachment 2.
(3) Attachment 3.
(4) Signature Page
(5) Attachment 4.
(6) Attachment(s) I(in reverse chronological order).
(7) Attachment 5.
ATTACHMENT 3
RULES AND REGULATiONS
All Exodus Customers and their Representatives, employees, contractors,
customers, agents and users of Customers' online facilities are subject to these
Rules and Regulations in connection with their use of Exodus' Internet Data
Center Services.
ACCESS TO (NTERNET DATA CENTtRS
- Only those individuals identified by Customer as its Representatives
may access the Internet Data Centers. Customer may not allow any
unauthorized persons to access the Internet Data Centers.
- Customer will notify Exodus in writing of any change in Customer's
Representatives.
- Customer agrees to adhere at all times to security measures that have
been established by Exodus to protect the Internet Data Centers, its
equipment and its customers' equipment.
USE OF INTERNET DATA CENTER FACILITY
Customer must keep the Customer Area clean at all times. Customncr may not store
any paper products or materials of any kind in the Customer Area (other than
equipment manuals).
Customer may not bring, or make use of, any of the following into the Facility:
- Food or drink - Alcohol or other intoxicants.
- Tobacco products - Electro-magnetic devices.
- Explosives - Radioactive materials.
- Weapons - Photographic or recording equipment of
- Chemicals any kind (oilier than tape back-up
- Illegal drugs equipment).
EQUIPMENT AND CONNECTIONS
- All Customer Equipment must be clearly labeled with Customer's name
(or code name provided to Exodus) and individual component
identification.
- Customers may not connect or disconnect any Customer Equipment or
other equipment except as specifically pre-approved by an authorized
employee of Exodus, at least 48 hours in advance of proposed
installation, except as otherwise approved by Exodus.
- All connections to and from Customer Equipment must be clearly
labeled.
- Customer Equipment must be configured and run at all times in
compliance with the manufacturer's specifications, including power
outlet, power consumption and clearance requirements.
- Exodus makes available at its Data Centers certain equipment for the
temporary use by Customers at the Internet Data Centers. This
equipment is provided on an "AS IS" basis without any warranties of
any kind. Customer may borrow and/or use any Exodus property or
equipment, at its own risk, after receiving permission from Exodus.
SCHEDULED MAINTENANCE
Periodically, Exodus will conduct routine scheduled maintenance of its
Internet Data Centers
and Internet Data Center Services pursuant to a schedule posted on Exodus' World
Wide Web site
(http://www.bengi.exodus.net/exo_maintenance_frame.html). During such time,
Customer's
Equipment may be unable to transmit and receive data and Customer may be unable
to access its
Equipment. Customer agrees to cooperate with Exodus during the scheduled
maintenance so that
Exodus may keep such period or time to a minimum.
MISCONDUCT
Customer and its Representatives may not:
- Misuse or abuse any Exodus property or equipment;
- Make any unauthorized use or interfere with any property or equipment
of any other Exodus customer.
- Harass any individual, including Exodus personnel and representatives
of other customers of Exodus; or
- Engage in any activity that is in violation of the law, or aid in
ct-imirial activity while on Exodus property or in connection with the
Internet Data Center Services.
ONLINE CONDUCT
Customer will not, and will not permit any persons using Customer's online
facilities (including but not limited to Customer's Web site(s) and transmission
capabilities), to do any of the following:
- Send Spam (unsolicited commercial messages or communications in any
form)
- Infringe or misappropriate the intellectual property rights of others.
This includes posting copyrighted materials without appropriate
permission, using trademarks of others without appropriate permission
or attribution, and posting or distributing trade secret information
of others in violation of a duty of confidentiality.
- Violate the persona] privacy rights of others. This includes
collecting and distributing information about Internet users without
their permission, except as expressly permitted by applicable law.
- Send, post or host harassing, abusive, libelous or obscene materials
or take arty similar actions.
- Intentionally omit, delete, forge or misrepresent transmission
information, including headers, return addressing information and IP
addresses or take any other actions intended to cloak Customer's or
its users' indentity or contact information.
- Use the online facilities for any illegal purposes.
- Assist or permit any persons in engaging in any of the activities
described above.
If Customer becomes aware of any such activities, Customer will take all actions
necessary to stop such activities immediately, including, if necessary,
terminating Customer's user's access to Customer's online facilities.
M0DIFICATI0N OF RULES AND REGULATIONS
Exodus reserves the right to change these Rules and Regulations at any
time. Customer is responsible for regularly reviewing these Rules and
Regulations. Continued use of the Internet Data Center Services following any
such changes shall constitute the Customer's acceptance of such changes.