EXHIBIT 10.62
NETTAXI.COM, INC.
DATA CENTER SERVICE AGREEMENT
THIS AGREEMENT made this 15th day of July, 1999, (the "Effective Date") by
and between NETTAXI.COM, INC. a Nevada corporation (hereinafter called
"Nettaxi"), located at 1696 Dell Avenue, Campbell, California 95008 and
Whitehorn Ventures Limited (hereinafter called "Customer"), Located at 2001
Central Plaza, 18 Harbour Road, Wanchai, Hong Kong.
1. GENERAL TERMS
A. This document, along with the Data Center Service Order ("DCSO")
agreement, shall comprise a complete and binding agreement between Customer and
Nettaxi regarding services to be provided at the location known as 1200 West 7th
Street, Suite L1-100, Los Angeles, California 90017 (hereinafter called the
"Data Center".) Each DCSO agreement, and any amendments thereto, when dated and
subscribed by Customer and Nettaxi, 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 DCSO agreement, the terms of the DCSO
agreement shall in all cases prevail.
B. In connection with the Space, if any, made available hereunder, Nettaxi
shall cause to be performed services which support the overall operation of a
Data Center, e.g., environmental systems maintenance and power plant
maintenance, at no additional charge to Customer.
C. Any option granted to Customer to renew its license hereunder shall be
contingent on the election by Nettaxi to continue to own or lease the Premises
in which the services provided herein are located for the duration of the
Renewal Period(s), such election to be exercised at the sole discretion of
Nettaxi.
2. DATA CENTER SERVICES
A. Connectivity: Nettaxi shall provide Customer with connectivity to the
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Internet through Nettaxi's network as specified in the DCSO. Nettaxi shall
provide cross-connectivity, where applicable, for an additional fee.
B. Technical Support: Nettaxi shall provide Customer with complete
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technical support upon Customer's request and in accordance with Nettaxi's terms
and conditions and listed rates.
C. Eyes Hands Support: Nettaxi shall provide Customer with assistance to
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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 shall begin on the "Requested Service Date," as set
forth in the DCSO agreement or on a date specified by Nettaxi, whichever is
later. The minimum term of the Customer's license shall be one year, but may be
longer as indicated on the DCSO.
B. Should Nettaxi fail, for any reason to provide services to Customer on
or before the Requested Service Date (specified in the DCSO agreement relevant
thereto) this Agreement shall not be void or voidable. If Nettaxi fails to
provide services to Customer within a sixty (60) 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 Nettaxi, declare the relevant DCSO
agreement null and void with no further obligation attributed to Customer, and
Nettaxi 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, Nettaxi shall
retain any funds necessary to recover the cost or obligations incurred on behalf
of Customer. Except as provided herein, Nettaxi shall not be liable to Customer
in any way as a result of a delay or failure to provide services.
C. Following the expiration of the Term or failure of the Parties to enter
into any Renewal Periods, Customer's license to 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 Nettaxi 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 Nettaxi, which
must be cured within ten (10) days of the payment due date. Nettaxi 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, Customer agrees to do the
following: (i) remove any Equipment or other property that may have been set up
by Customer or Customer's agent(s) and return to Nettaxi all services that had
been provided to Customer by Nettaxi; (ii) pay any outstanding fees within five
(5) days of termination of service; (iii) return any confidential information it
has received from Nettaxi and (iii) return any equipment or supplies that are
the property of Nettaxi. 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.
5. DEFAULT
A. If Customer fails to perform its obligations, or fails to pay for services
rendered hereunder, Nettaxi 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, Nettaxi 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. Nettaxi'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, Nettaxi may discontinue
any or all services for any period of time as it deems appropriate without
written notice to Customer, and Nettaxi shall not deem such action a breach of
this Agreement.
B. At any time during the term of this Agreement, Nettaxi may, at it's sole
option, immediately terminate this Agreement if Customer is not then maintaining
the services being rendered solely for the purpose of originating and/or
terminating telecommunications transmissions carried over the Nettaxi Network or
as otherwise set forth in this Agreement.
C. If Customer commits an act of default with respect to the purchase of
telecommunications services which would entitle Nettaxi under its separate
tariffs and agreements to terminate its services to Customer, then Nettaxi and
all Nettaxi's Affiliates shall be entitled to terminate this Agreement and all
Data Center services to which this Agreement pertains.
D. Nettaxi 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.
6. PRICES AND PAYMENT TERMS
A. Customer shall pay Nettaxi monthly recurring fees (the "Recurring Fees"),
which shall include charges for 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 where applicable, Escort charges, and other services, which
shall be set forth in the DCSO agreement. If Customer requests that Nettaxi
provide services not delineated herein or in the DCSO agreement 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.
If in its judgment Nettaxi determines that Customer is not creditworthy or is
otherwise not financially secure, Nettaxi 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
Nettaxi for any applicable taxes that are levied based on the transactions
hereunder, exclusive of taxes on income and real estate taxes on the Data
Center. Any such charges shall be invoiced and payable within the payment terms
of this Agreement. Nettaxi 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. Payments shall be due upon Customer's receipt of each monthly invoice.
D. Customer agrees to reimburse Nettaxi 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.
7. ADDITIONAL TERMS GOVERNING USE OF SERVICES RENDERED BY NETTAXI
A. Before beginning any delivery, replacement or removal work, Customer
must obtain Nettaxi 's written approval of Customer's choice of suppliers which
approval shall not be unreasonably withheld or delayed. Nettaxi may request
additional information before granting approval and may require scheduling
changes and substitution of suppliers as conditions of its approval. Approval by
Nettaxi is not an endorsement of Customer's supplier and Customer will remain
solely responsible for the selection of the supplier and all payments to Nettaxi
for work performed on their behalf.
B. Customer shall not make any changes or material alterations to any
cabling or power supplies for the Equipment, without obtaining Nettaxi's written
approval for Customer to have the work performed. Nettaxi reserves the right to
perform and manage any material alterations at rates to be negotiated between
the Parties hereto.
C. Customer's access to the Data Center shall at all times be subject to
Customer's adherence to the generally accepted industry standards, security
rules and rules of conduct established by Nettaxi for the Data Center. Except
where advanced written permission has been given by Nettaxi, Customer's access
to the Data Center shall be limited to the individuals identified and authorized
by Customer to have such access
D. All equipment brought into or taken out of the Data Center facility must
be cleared through Nettaxi's equipment control system
8. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
A. Equipment: Customer represents and warrants that, in the
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event it places or uses Equipment, 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 Data Center complies with
the Customer Equipment Manufacturer's environmental and other specifications.
B. Customer's Business: Customer represents and warrants that
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Customer's services, products, materials, data, information and equipment used
in connection with this Agreement and Customer's use of Data Center Services
(collectively, "Customer's Business") does not as of the Requested Service 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.
C. Breach of Warranties: In the event of any breach, or
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reasonably anticipated breach, of any of the foregoing warranties, in addition
to any other remedies available in law or equity, Nettaxi shall have the right,
at Nettaxi's sole discretion, to suspend any related Data Center Services if
deemed reasonably necessary by Nettaxi to prevent any harm to its business.
9. DISCLAIMERS AND LIMITATION OF LIABILITY
A. CUSTOMER AND ITS REPRESENTATIVES VISIT THE DATA CENTER AT THEIR OWN RISK
AND NETTAXI ASSUMES NO LIABILITY FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY
CAUSE OTHER THAN NETTAXI'S NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN
PERSONAL INJURY TO SUCH VISITIORS.
B. NETTAXI ASSUMES NO LIABILITY FOR DAMAGE OR LOSS RELATING TO CUSTOMERS
BUSINESS. TO THE EXTENT NETTAXI 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 NETTAXI FOR DAMAGES ARISING OUT OF THE SERVICES
PROVIDED HEREIN, INCLUDING, WITHOUT LIMITATION, MISTKES, 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.
10. 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.
11. 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.
12. ASSIGNMENT OR TRANSFER
Customer shall not assign or transfer the rights or obligations associated
with this Agreement, in whole or in part, without Nettaxi's prior written
consent.
13. PUBLICITY
Customer shall not use Nettaxi's name in publicity or press releases
without Nettaxi's prior written consent.
14. LIMITATION OF LIABILITY
A. In no event shall Nettaxi 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 of the Data
Center Facility including (without limitation) damages arising from interruption
of electrical power or HVAC services.
B. Customer shall indemnify and hold harmless Nettaxi, its officers,
directors, agents and employees, from and against any and all third party
claims, costs, expenses or liabilities arising from or in connection with
Customer's use of the Data Center facility. Customer further agrees to
indemnify Nettaxi against Customer's acts of negligence resulting in damage to
third parties.
15. FORCE MAJEURE
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.
16. 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.
17. 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 that is signed by both parties or their duly
authorized representatives.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
NETTAXI.COM, INC.
BY: /s/
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Authorized Signature
TITLE:
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WHITEHORN VENTURES LIMITED
BY: /s/
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Authorized Signature
TITLE: Director