EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
This Internet Data Center Services Agreement (this "Agreement") is made
effective as of the Submission Date (February 24, 1999) indicated in the
initial Internet Data Center Services Order Form accepted by Exodus, by
and between Exodus Communications, Inc. ("Exodus") and the customer
identified below ("Customer").
PARTIES:
Customer Name: Global Business Information Directory (Inc.
Address: 000 Xxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
EXODUS COMMUNICATIONS, INC.
0000 Xxx Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
1. 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 services
described in the Internet Data Center Services Order Form(s) ("IDC
Services Order Form(s)") accepted by Exodus, or substantially
similar services if such substantially similar services would
provide Customer with substantially similar benefits
("Internet Data Center Services"). All IDC Services Order
Forms accepted by Exodus are incorporated herein by this
reference, each as of the Submission Date indicated in such form.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services,
other than Setup Fees, indicated in the initial IDC Services Order Form
shall commence on the earlier to occur of (i) the "Installation Date"
indicated in the initial IDC Services Order Form, regardless of whether
Customer has commenced use of the Internet Data Center Services,
unless 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, then billing will not begin until the date
Exodus has remedied such fault and (ii) the date the "Customer
Equipment" (Customer's computer hardware and other tangible equipment,
as identified in the Customer Equipment List which is incorporated
herein by this reference) is placed by Customer in the "Customer
Area" (the portion(s) of the Internet Data Centers, as defined in
Section 3.1 below, made available to Customer hereunder for the
placement of Customer Equipment) and is operational. All Setup Fees
will be billed upon receipt of a Customer signed IDC Services Order
Form. In the event that Customer orders 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 or as otherwise agreed to by Customer and Exodus.
2.3 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. 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 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.
2.4 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.
3. Customer's Obligations.
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and
regulations and Exodus' general rules and regulations relating to its
provision of Internet Data Center Services, as updated by Exodus from
time to time ("Rules and Regulations"). Customer acknowledges that
Exodus exercises no control whatsoever over the content of the
information passing through its sites containing the Customer Area
and equipment and facilities used by Exodus to provide Internet Data
Center Services ("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.
3.2 Customer's Costs. Customer agrees that it will be solely responsible,
and at Exodus's request will reimburse Exodus, for all costs and expenses
(other than those included as part of the Internet Data Center Services
and except as otherwise expressly provided herein) it incurs in connection
with this Agreement.
3.3 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 the
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 the individuals
identified and authorized by Customer to have access to the
Internet Data Centers and the Customer Area in accordance with this
Agreement, as identified in the Customer Registration Form, as amended
from time to time, which is hereby incorporated by this
reference ("Representatives").
3.4 No Competitive Services. Customer may not at any time permit any
Internet ata Center Services to be utilized for the provision of any
services that compete with any Exodus services, without Exodus'
prior written consent.
3.5 Insurance.
(a) Minimum Levels. Customer will keep in full force and effect during
the term 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 $1 million per occurrence; and (iii) workers' compensation
insurance in an amount not less than that required by applicable law.
Customer also agrees that it will, and will be solely responsible for
ensuring that its agents (including contractors and subcontractors)
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.
4. Confidential Information.
4.1 Confidential Information. Each party acknowledges that it will
have access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology, and
products, including the terms and conditions of this Agreement
("Confidential Information"). Confidential Information will include, but not
be limited to, each party's proprietary software and customer
information. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly
permitted by this Agreement, nor disclose to any third party (except as
required by law or to that party's attorneys, accountants 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.
4.2 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.
5. Representations and Warranties.
5.1 Warranties by Customer.
(a) Customer Equipment. 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.
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 Manufacturer's environmental
and other specifications.
(b) Customer's Business. Customer represents and warrants that
Customer's services, products, materials, data, information and Customer
Equipment used by Customer in connection with this Agreement as well as
Customer's and its permitted customers' and users' use of the Internet
Data Center 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 law or regulation.
(c) 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 all times during the term of this Agreement.
(d) 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 at law or in equity, Exodus will have
the right immediately, in Exodus' sole discretion, to suspend any
related Internet Data Center Services if deemed reasonably
necessary by Exodus to prevent any harm to Exodus and its
business.
5.2 Warranties and Disclaimers by Exodus.
5.2(a) Service Level Warranty. In the event Customer experiences any
of the following 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
(including Customer Equipment and third party equipment), Exodus will,
upon Customer's request in accordance with paragraph (iii) below, credit
Customer's account as described below:
(i) Inability to Access the Internet (Downtime). If Customer is unable
to transmit and receive information from Exodus' Internet Data
Centers (i.e., Exodus' LAN and WAN) to other portions of the Internet
because Exodus failed to provide the Internet Data Center Services
for more than fifteen (15) consecutive minutes, Exodus will credit
Customer's account the pro-rata connectivity charges (i.e., all
bandwidth related charges) for one (1) day of service, up to an
aggregate maximum credit of connectivity charges for seven (7)
days of service in any one calendar (1) month. 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. For purposes of the foregoing, "unable to transmit and
receive" shall mean sustained packet loss in excess of 50%
based on Exodus' measurements.
(ii) Packet Loss and Latency. Exodus does not proactively monitor the
packet loss or transmission latency of specific customers. Exodus
does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that Exodus
discovers (either from its own efforts or after being notified by Customer)
that Customer is experiencing packet loss in excess of one percent
(1%) ("Excess Packet Loss") or transmission latency in excess of 120
milliseconds round trip time (based on Exodus' measurements) between
any two Internet Data Centers within Exodus' U.S. network (collectively,
"Excess Latency", and with Excess Packet Loss "Excess Packet
Loss/Latency"), and Customer notifies Exodus (or confirms that Exodus has
notified Customer), Exodus will take all actions necessary to determine
the source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency;
Notification of Customer. Within two (2) hours of discovering the
existence of Excess Packet Loss/Latency, Exodus will determine whether
the source of the Excess Packet Loss/Latency is limited to the
Customer Equipment and the Exodus equipment connecting the Customer
Equipment to Exodus' LAN ("Customer Specific Packet Loss/Latency").
If the Excess Packet Loss/Latency is not a Customer Specific Packet
Loss/Latency, Exodus will determine the source of the Excess Packet
Loss/Latency within two (2) hours after determining that it is not
a Customer Specific Packet Loss/Latency. In any event, Exodus will
notify Customer of the source of the Excess Packet Loss/Latency
within sixty (60) minutes after identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency remedy is within the sole control of Exodus, Exodus will
remedy the Excess Packet Loss/Latency within two (2) hours of determining
the source of the Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency is caused from outside of the Exodus LAN or WAN, Exodus will
notify Customer and will use commercially reasonable efforts to notify
the party(ies) responsible for the source and cooperate with it(them) to
resolve the problem as soon as possible.
(C) Failure to Determine Source and/or Resolve Problem. In the
event that Exodus is unable to determine the source of and remedy the
Excess Packet Loss/Latency within the time periods described above (where
Exodus was solely in control of the source), Exodus will credit
Customer's account the pro-rata connectivity charges for one (1) day of
service for every two (2) hours after the time periods described above
that it takes Exodus to resolve the problem, up to an aggregate maximum
credit of connectivity charges for seven (7) days of service in any one
(1) month.
(iii) Customer Must Request Credit: To receive any of the credits described
in this section 5.2(a), Customer must notify Exodus within three (3)
business days from the time Customer becomes eligible to receive a credit.
Failure to comply with this requirement will forfeit Customer's
right to receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit: In the event that
Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be
entitled to receive only the maximum single credit available for such
event. In no event will Exodus be required to credit Customer in any one
(1) calendar month connectivity charges in excess of seven (7) days of
service. A credit shall be applied only to the month in which there was the
incident that resulted in the credit. Customer shall not be
eligible to receive any credits for periods in which Customer received any
Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems: If, in any single calendar
month, Customer would be able to receive credits totaling fifteen (15)
or more days (but for the limitation in paragraph (iv) above) resulting from
three (3) or more events during such calendar month or, if any
single event entitling customer to credits under paragraph 5.2(a)(i) exists
for a period of eight (8) consecutive hours, then, Customer may
terminate this Agreement for cause and without penalty by notifying Exodus
within five (5) days following the end of such calendar month. Such
termination will be effective thirty (30) days after receipt of such notice
by Exodus.
This warranty does not apply to any Internet data center services that
expressly exclude this warranty (as described in the specification sheets
for such products). This Section 5.2(a) states customer's sole and exclusive
remedy 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, the Internet Data Center Services are provided
on an "as is" basis, and Customer's use of the Internet Data Center Services
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, noninfringement and title, and any warranties arising from a course
of dealing, usage, or trade practice. Exodus does not warrant that
the Internet Data Center Services will be uninterrupted, error-free, or
completely secure.
(c) Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
Exodus does not and cannot control the flow of data to or from
Exodus' Internet Centers and other portions of the Internet. Such flow depends
in large part on the performance 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 related
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 from any cause
other than exodus' negligence or willful misconduct resulting in personal
injury to such persons during such a visit.
6.2 Damage to Customer Equipment or Business. Exodus assumes no liability for
any damage to, or loss relating to, Customer's Business resulting from any
cause whatsoever. Certain Customer Equipment, including but not limited to
Customer Equipment located on CyberRacks, may be directly accessible 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.
6.3 Exclusions. Except as specified in Sections 6.1 and 6.2, in no event
will Exodus be liable to Customer, any Representative, or any third
party for any claims arising out of or related to this Agreement, Customer
Equipment, Customer's Business or otherwise, and any lost revenue,
lost profits, replacement goods, loss of technology, rights or
services, incidental, punitive, indirect or consequential damages,
loss of data, or interruption or loss of use of service or of any
Customer Equipment or Customer's Business, even if advised of the
possibility of such damages, whether under theory of contract, tort
(including negligence), strict 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 or
relating to 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 Exodus' Indemnification of Customer. Exodus will indemnify, defend
and hold Customer harmless from and against any and all costs, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys'
fees) (collectively, "Losses") resulting from any claim, suit, action, or
proceeding (each, an "Action") brought against Customer alleging (i) the
infringement of any third party registered U.S. copyright or issued U.S.
patent resulting from the provision of Internet Data Center Services
pursuant to this Agreement (but excluding any infringement contributorily
caused by Customer's Business or Customer Equipment) and (ii) personal
injury to Customer's Representatives from Exodus's gross negligence or
willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify,
defend and hold Exodus, its affiliates and customers harmless from and
against any and all Losses resulting from or arising out of any Action
brought by or against Exodus, its affiliates or customers alleging:(a) with
respect to the Customer's Business: (i) infringement or misappropriation
of any intellectual property rights; (ii) defamation, libel, slander,
obscenity, pornography, or violation of the rights of privacy or publicity;
or (iii) spamming, or any other offensive, harassing or illegal conduct or
violation of the Rules and Regulations; (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 designees; or
(c) any other damage arising from the Customer Equipment or Customer's
Business.
7.3 Notice. Each party 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 (25) months
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 (1) year each.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may terminate this
Agreement for convenience by providing written notice to Exodus at any time
during the thirty (30) day period beginning on the Installation Date.
(ii) By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the (25th) twenty fifth month
following the Installation Date by providing ninety (90) days' prior written
notice to the other party at any time thereafter.
(b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition
of this Agreement and fails to cure such breach within thirty (30) days
after receipt of written notice of the same, except in the case of failure
to pay fees, which 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.
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 under this Agreement 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 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 Customer Equipment as Security. In the event that Customer fails to
pay Exodus all amounts owed Exodus under this Agreement when due, Customer
Agrees that upon written notice, Exodus may take possession of any Customer
Equipment and store it, at Customer's expense, until taken in full or
partial satisfaction of any lien or judgment, all without being to
prosecution or for damages.
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. Miscellaneous Provisions.
9.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this
Agreement 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.
9.2 No Lease. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property.
Customer acknowledges and agrees that (i) it has been granted only a license
to occupy the Customer Space and use the Internet Data Centers and any
equipment provided by Exodus in accordance with this Agreement, (ii)
Customer has not been granted any real property interest in the Customer
Space or Internet Data Centers, and (iii) Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations,
or ordinances. For good cause, including the exercise of any rights under
Section 8.5 above, Exodus may suspend the right of any Representative or
other person to visit the Internet Data Centers.
9.3 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 and trademarks solely in connection with the
rights granted to Exodus pursuant to this Section 9.3.
9.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated
item or information to anyone outside the U.S. in connection with this
Agreement without first complying with all export control laws and
regulations which may be imposed by the U.S. Government and any country or
organization of nations within whose jurisdiction Customer operates or does
business.
9.5 Non-Solicitation. During the period beginning on the Installation
Date and ending on the first anniversary of the termination or expiration of
this Agreement in accordance with its terms, Customer agrees that it will
not, and will ensure that its affiliates do not, directly or indirectly,
solicit or attempt to solicit for employment any persons employed by Exodus
during such period.
9.6 Governing Law; Dispute Resolution, Severability; Waiver. This
Agreement is made under and will be governed by and construed in accordance
with the laws of the State of California (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. 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 Xxxxx 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. 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 Agreement will
remain in full force and effect. 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.
9.7 Assignment; Notices. Customer may not assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of Exodus, except that Customer may assign this Agreement in
whole as part of a corporate reorganization, consolidation, merger, or sale
of substantially all of its assets. Any attempted assignment or delegation
without such consent will be void. Exodus may assign this Agreement in
whole or part. This Agreement will bind and inure to the benefit of each
party's successors and permitted assigns. 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 will
be deemed to have been given as of the date it is delivered, mailed or sent,
whichever is earlier.
9.8 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.
9.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by 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. 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.
Customer's and Exodus' authorized representatives have read the foregoing
and all documents incorporated therein and agree and accept such terms
effective as of the date first above written.
CUSTOMER EXODUS
EXODUS COMMUNICATIONS, INC
Signature:/s/Xxxxxxx Xxxxxxxxxx Signature:/s/Xxx Xxxxxx
Print Name:Xxxxxxx Xxxxxxxxxx Print Name: Xxx Xxxxxx
Title: President/CEO Title: Contracts Mgr
