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EXHIBIT 10.47
CO-LOCATION AGREEMENT
(Home-Com )
CO-LOCATION AGREEMENT made as of June 10, 1998 between SAGE NETWORKS,
INC., a Delaware corporation, having an office at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Sage Networks") and HOMECOM COMMUNICATIONS, INC. a
Delaware corporation having an address at Fourteen Piedmont Center, Suite 100,
0000 Xxxxxxxx Xxxx X.X., Xxxxxxx, XX 00000 ("Customer").
WHEREAS, on the date hereof, Customer, as seller, sold substantially
all of its Internet Web hosting assets to an affiliate of Sage Networks, as
buyer, pursuant to the terms of that certain Asset Purchase Agreement between
said seller and buyer dated even date herewith (the "Purchase Agreement");
WHEREAS, Sage Networks is an Internet Web hosting service provider and
makes available to customers webservers and other computer equipment and service
that provides connectivity and access to the Internet;
WHEREAS, Customer desires to utilize Sage Networks Internet Web hosting
services and to co-locate one or more servers and other equipment with Sage
Networks in order to comply with its Web hosting obligations under and pursuant
to the License and Services Agreement dated as of June 18, 1997, between
Customer and Excalibur Group (the "Customer Agreement");
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Customer Obligations" shall mean each of the obligations of the
Customer under this Agreement.
(b) "Default" shall have the meaning ascribed to it in Section 7 herein.
(c) "Hosting Services" shall mean the hosting services to be provided by
Sage Networks under this Agreement.
(d) "Term" shall have the meaning ascribed to it in Section 3 herein.
2. CO-LOCATION ARRANGEMENTS. (a) Sage Networks will permit Customer to locate
certain network and computer equipment and software (the "Customer's Equipment")
at Sage Network's data center (the "Customer Accessible Space"). The
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Customer Accessible Space is hereby accepted by Customer "as is". Sage Networks
shall provide network uptime availability for the Customer Equipment of 99%.
Network uptime is defined as the periods when the Customer has access to the
internet via Sage Networks network hardware and Sage Network's internet
bandwidth. Sage Networks shall provide or cause to be provided services which
support the overall operation of the Customer Accessible Space, such as
janitorial services, environmental systems maintenance and power plant
maintenance, at no additional charge to Customer.
(b) Customer may use the Customer Accessible Space only for the purposes of
installing, maintaining and operating hardware and software necessary to provide
Web hosting services in accordance with and pursuant to the Customer Agreement
(the "Co-Location Hosting"). Customer shall not interconnect the Customer
Equipment with equipment or services of any entity without the prior written
consent of Sage Networks. The Customer will provide the Customer's Equipment at
Customer's sole cost and expense. Customer shall setup, install, configure and
generally make ready the Customer's Equipment and software necessary to provide
the Co-Location Hosting. Sage Networks may move the Customer's Equipment to any
Sage Networks data center located in the Atlanta metropolitan area.
3. TERM. The term of this Agreement shall commence on the date that Sage
Networks vacates the Customer's premises and end on the last day of the latest
of the Initial Term and any Renewal Period (as such terms are defined in the
Customer Agreement) under the Customer Agreement (the Term ). Sage Networks may,
in its sole discretion, terminate this Agreement on 60 days prior written notice
to Customer.
4. FEES AND PAYMENT. (a) In consideration of the Hosting Services, Customer
shall pay Sage Networks a monthly fee (or ratable portion thereof for a partial
month) in an amount equal to the greater of (i) $3,500 per month or (ii) the sum
of 20% of the aggregate amounts payable to the Customer pursuant to the
Customer Agreement during such month. If the percentage of Sage Network's
bandwidth used by the Customer in relation to the number of customers served
under the Customer Agreement increases, the parties shall negotiate, in good
faith, an increase in the monthly fee payable to Sage Networks under this
Agreement.
(b) Payment in full of a portion of the monthly fee payable under this
Agreement in the amount of $3,500 per month is due within ten (10) days after
the first business day of each month during the Term. The balance of the monthly
fee payable under this Agreement is due within ten (10) days after receipt by
Customer of its payment with respect to such month under the Customer Agreement.
Sage Networks may impose and Customer shall pay, a debt service charge equal to
one and one-half percent (1. 5%) of the overdue balance (or such lesser amount
as may be required by law) for each month or fraction thereof that any monthly
fee payable hereunder remains unpaid.
(c) If Customer orders additional services from Sage Networks from its then
offered services, then such services will be paid for in accordance with Sage
Networks'
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standard fee and payment terms and conditions which will be provided to Customer
at the time of its ordering such services.
(d) All international, national, state and local taxes, fees, levies,
assessments and governmental charges, however designated, which are levied or
imposed with respect to the Hosting Services provided hereunder (other than
income taxes of Sage Networks) shall be paid by Customer and Sage Networks
shall have no liability with respect thereto.
5. WARRANTIES; ASSUMPTION OF RISK. CUSTOMER ACKNOWLEDGES THAT SAGE NETWORKS
HAS NOT MADE, AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESSED
OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO THE HOSTING SERVICES PROVIDED
HEREUNDER INCLUDING BUT NOT LIMITED TO: (1) ANY WARRANT OF DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, (2) AS TO ANY MATERIALS
OR WORKMANSHIP, (3) AS TO ANY LATENT DEFECTS, (4) AS TO ANY PATENT OR TRADEMARK
INFRINGEMENT, AND (5) AS TO THE COMPLIANCE WITH ANY REQUIREMENTS OF ANY LAW,
RULE, SPECIFICATION, OR CONTRACT PERTAINING THERETO. CUSTOMER FURTHER
ACKNOWLEDGES THAT THE INTERNET IS NEITHER OWNED NOR CONTROLLED BY ANY ONE
ENTITY; AS A RESULT, SAGE NETWORKS EXPRESSLY DISCLAIMS ANY AND ALL
REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE CUSTOMER EQUIPMENT SHALL BE
ABLE TO ACCESS THE INTERNET AT ANY GIVEN TIME. SAGE NETWORKS REPRESENTS THAT IT
SHALL MAKE EVERY GOOD FAITH EFFORT THAT THE CUSTOMER EQUIPMENT HAS INTERNET
AVAILABILITY AS TO AS MANY USERS WITH AS MINIMAL INTERRUPTIONS OF HOSTING
SERVICE AS POSSIBLE; NEVERTHELESS, SAGE NETWORKS CANNOT AND DOES NOT WARRANT
THAT THERE WILL BE SATISFACTORY AND/OR UNINTERRUPTED CONNECTIONS TO THE
INTERNET. CUSTOMER USES SAG E NETWORK'S HOSTING SERVICES AT CUSTOMER'S OWN RISK.
6. ACCESS TO SYSTEM.
(a) During the Term and provided Customer is not then in default of any of
the material terms of this Agreement, including any payment terms, Customer and
its employees will be allowed root access to Customer Equipment so that Customer
can comply with its Web hosting obligations under the Customer Agreement.
Customer agrees not to attempt or allow any of its users to attempt access to
other webservers, computers, routers, hubs or any other devices connected to any
of Sage Networks' networks to which Customer does not have an account. If this
provision is breached, in addition to any other remedies Sage Networks may have
available at law, in equity or under this Agreement, Sage Networks will
immediately deny root access to Customer without penalty to Sage Networks.
(b) Customer is also entitled to physical access of the Customer Equipment
at Sage Networks' data center where the Customer Equipment is located 24 hours
per day,
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seven days a week; provided Customer is then in compliance with the terms of
this Agreement. Each such visit shall be subject to Sage Networks rules and
regulations then in effect concerning access to its data center, including,
without limitation, that all visitors (i) must sign in and out when entering and
leaving the premises, (ii ) must show proper identification and proof of
authorization from Customer in form satisfactory to Sage Networks, and (iii) may
be required to be in the company of Sage Networks personnel while at the
premises. In addition, Customer must maintain, at Customer's expense, during
the entire time this Agreement is in effect (i) Comprehensive General Liability
Insurance in an amount not less than Two Million U.S. Dollars ($2,000,000) per
occurrence for bodily injury and property damage, (ii) Employer's Liability
Insurance in an amount not less than Five Hundred Thousand U.S. Dollars
($500,000) per occurrence, and (iii) Worker's Compensation in an amount not less
than that prescribed by statutory limits. Within ten (10) days of the date
hereof, Customer shall furnish Sage Networks with certificates of insurance
which evidence the minimum levels of insurance set forth herein and which name
Sage Networks as additional insured.
7. DEFAULT, OFFSET AND ACCELERATION.
(a) As used herein, "Default" shall mean, with respect to Customer, any or
all of the following: (i) Customer's failure to pay when due any fees required
to be paid to Sage Networks pursuant to this Agreement; (ii) Customer's breach
of any other material provision of this Agreement including, without
limitation, the provisions contained in Section 10 "Prohibited Uses"; or (iii)
any breach by Customer of any law, statute or regulation, which, in the case of
a breach described in clause (ii) or (iii), remains uncured following a
reasonable period in the light of the circumstances of such breach after receipt
by Customer of written notice from Sage Networks advising it with specificity of
such Default, unless within such period Customer commenced curing such Default
and continues to act diligently until such Default is cured.
(b) Upon any Default by Customer, in addition to any and all other remedies
available at law or in equity to Sage Networks, Sage Networks may, at its option
(i) restrict access by Customer and/or the public to all or any part of
Customer's Equipment immediately upon Default and without notice to Customer,
(ii) terminate, withhold or suspend the Hosting Services, and/or (iii) terminate
this Agreement and accelerate the payment of the then unpaid fees for the
balance of the Initial Term of this Agreement and any other fees or charges
then due hereunder, and declare the same immediately due and payable whereupon
Customer shall pay all of such fees and/or charges immediately upon delivery of
written notice to Customer advising it of such acceleration of payment. Before
proceeding with any of the above remedies, Sage Networks may, but is not
required to, deliver a notice to cure such Default to Customer upon terms that
Sage Networks deems to be acceptable, which may include but is not limited to,
written assurance provided by Customer that such Default will not recur and the
charging of a reinstatement fee to be determined by Sage Networks.
(c) If Sage Networks asserts its rights under this Agreement and/or files
suit to enforce the terms and conditions hereof, Customer shall be liable for
any and all of
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Sage Networks' costs incurred in connection therewith, including but not limited
to, reasonable attorney's fees (whether or not litigation is commenced) and
court costs.
(d) As used herein, "Default" shall mean, with respect to Sage Networks,
Sage Network's breach of (i) any provision of this Agreement, which breach
materially and adversely affects the Customer's ability to perform its
obligations under the Customer Agreement and remains uncured after 24 hours
receipt by Sage Networks of written notice from Customer advising it with
specificity of such Default, unless within 48 hours of such notice such Default
is cured or (ii) any other material provision of this Agreement, which breach
remains uncured following a reasonable period in the light of the circumstances
of such breach after receipt by Customer of written notice from Sage Networks
advising it with specificity of such Default, unless within such period Sage
Networks commenced curing such Default and continues to act diligently until
such Default is cured.
(e) The provisions of this Section 7 are subject to the following
limitations: if by reason of acts of God; strikes; lockouts or other industrial
disturbances; acts of public enemies; orders of any kind of the Government of
the United States, of the State of Georgia or of the State of New York, or any
department, agency, political subdivision, court or official of either of them,
or any civil or military authority; insurrections; riots; epidemics; landslides;
floods; washouts; droughts; arrests; restraint of government and people; civil
disturbances; explosions; breakage or accident to machinery; partial or entire
failure of utilities; or any cause or event not reasonably within the control of
such party, a party hereto is unable in whole or in part to carry out any one
or more of its agreements or obligations contained in this Agreement, other than
the obligations of the Customer pursuant to Section 4 hereof, such party shall
not be deemed in Default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during the continuance
of such inability. Any failure of the Customer to perform its obligations under
Section 4 hereof shall constitute a Default regardless of the reason for such
failure to perform.
8. INDEMNIFICATION. Customer shall defend, indemnify, save and hold Sage
Networks, its officers, directors, contractors, employees, successors and/or
assigns harmless from any and all demands, liabilities, losses, costs and
claims, including reasonable attorneys' fees, compensatory damages, punitive
damages, trebled damages, and statutory damages which may be asserted against or
incurred by Sage Networks, its agents, directors, officers, contractors,
employees, successors and/or assigns arising or resulting from any service
provided or performed or agreed to be performed by Customer, its agents,
employees or assigns, or any product distributed, offered or sold by Customer,
its agents, employees or assigns under this Agreement.
9. CONTENT. Sage Networks will exercise no control whatsoever over, nor have
any responsibility or liability whatsoever for, the content of the information
passing through the Customer's Equipment, which shall be the sole responsibility
of Customer. Sage Networks shall make no effort to validate any information
passing through the Customer's Equipment for content, correctness, usability or
for any other reason.
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10. PROHIBITED USES.
(a) Customer shall not use, nor permit the use of or by any person, of
Customer's Equipment or any part thereof, including any links to other web
space, (i) to transmit any obscene communications with intent to annoy another
person or persons or to any person under 18 years of age, (ii) in violation of
any patent, trademark, service xxxx, or copyright law, or (iii) to transmit
unsolicited advertisements of services or products, a practice also known as
"spamming" or mail relay "spamming".
(b) Customer shall not use, nor permit the use of or by any person,
Customer's Equipment or any part thereof, including any links to other web
space, in violation of Sage Networks Usage Policy. Said Usage Policy is
incorporated into this Agreement as if fully set forth herein. Customer
acknowledges that it has reviewed the aforementioned Usage Policy and will
comply with its terms and conditions. Sage Networks reserves the right to amend
the Usage Policy from time to time and Customer shall be bound by any such
amendments, provided, however, if any such amendments materially modify
Customer's obligations hereunder, Customer shall promptly notify Sage Networks
of such effect and that it intends to terminate this Agreement if the Usage
Policy is not further amended to reasonably avoid such effect. Such termination
shall be effective 90 days following Sage Networks receipt of such notification
from Customer unless Sage Networks, in its sole discretion, further amends the
Usage Policy to reasonably avoid such effect and notifies Customer of such
amendment. Customer shall have the obligation to periodically visit Sage
Networks' Web site to review the Usage Policy and to make certain Customer is in
full compliance therewith other than as stated in the preceding sentence.
11. LIMITED LIABILITY.
(a) Under no circumstances, including negligence, shall Sage Networks, its
officers, agents or anyone else acting through or on Sage Networks behalf,
involved in creating, producing or distributing the Hosting Services provided
pursuant to this Agreement be liable for any claims, cause of action, direct,
indirect, incidental, special, or consequential, trebled, or punitive damages
that result or have alleged to have resulted from the use of or inability to use
the Hosting Services provided pursuant to this Agreement or that results from
mistakes, omissions, interruptions, deletion of files, errors, defects, delays
in operation, or transmission or any failure of performance, whether or not
limited to acts of God, communications failure, theft, destruction or
unauthorized access to Sage Networks' records, programs or services. Customer
hereby acknowledges that this paragraph shall apply to all content of the
Hosting Services provided pursuant to this Agreement.
(b) Notwithstanding the above, Customer's remedies for all damages, losses
from any and all claims, costs or causes of action, whether in contract, quasi-
contract, statutory, tort including negligence, or otherwise, arising under or
in connection with this
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Agreement, shall be limited to the aggregate dollar amount which Customer has
theretofore paid to Sage Networks under this Agreement.
(c) Nothing in this Agreement is intended to limit the obligations of the
parties thereto to provide indemnification pursuant to and in accordance with
the Purchase Agreement.
12. RESPONSIBILITY AND CONTROL.
(a) Customer shall inspect and monitor web space associated with the
Customer's Equipment weekly (or more frequently at Customer's option) to ensure
that no material therein is in violation of Section 10 "Prohibited Uses".
(b) Customer shall be solely responsible for the handling, processing and
filling any Customer orders generated by the Customer's Equipment, if any, and
for handling Customer inquires and/or complaints arising therefrom. Sage
Networks shall not b e liable for any taxes or other fees to be paid in
accordance with or related to the handling, processing or filling of Customer
orders or the sales generated from the Customer Equipment. Customer agrees to
take full responsibility for all taxes and fees of any nature associated with
such products sold or services provided.
13. TERMINATION. Except as may otherwise be provided in Section 3 or Section 7
hereof, this Agreement may not be terminated by either party prior to the
expiration of the Term. Any and all of Sage Networks proprietary software,
source code or other confidential information and trade secrets must be
returned to Sage Networks immediately upon the expiration of the Term of the
Agreement.
14. ASSIGNMENT PROHIBITED; SUCCESSORS. The Customer shall not assign this
Agreement without the prior written consent of Sage Networks. This Agreement
shall inure to the benefit of and be binding upon Customer and Sage Networks and
their successors and permitted assigns and any third party which succeeds to
all or substantially all of the assets and business of either such party.
15. CHOICE OF LAW AND FORUM. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia.
16. ENTIRE AGREEMENT; SEVERABILITY. This Agreement sets forth the entire
agreement between Sage Networks and Customer with respect to the subject matter
hereof and supersedes all previous representations, understandings or agreements
and shall prevail notwithstanding any variance with terms and conditions of any
other prior writing between the parties. If any provision of this Agreement is
held to be invalid by a court of competent jurisdiction, then the remaining
provisions shall nevertheless continue in full force and effect.
17 NOTICES. All notices hereunder must be sent by certified mail, return
receipt requested, hand delivery to an officer of the party receiving the notice
against receipt, or
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by a commercial overnight courier service for next day delivery, to the ad
dresses stated above in this Agreement for the respective parties. Notice by any
method other than as provided herein shall be ineffective and without force
unless otherwise agreed to in writing by the receiving party. Notice is deemed
effective upon receipt. A copy of each notice to Sage Networks shall be sent to
the following:
Xxxxxx Xxxxx
Chief Executive Officer
Sage Networks, Inc.
00 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx 00, Xxxxx 000
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx, Esq.
General Counsel
Sage Networks, Inc.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000
A copy of each notice to Customer shall be sent to the following:
Xxxx Xxxx Xxxxx & Xxxxx LLP
Suite 310 - 400 Northpart Town Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
The notice addresses set forth in this Agreement may be changed by giving
written notice in accordance with this Agreement.
18. RISK OF LOSS. Sage Networks shall not bear the risk of loss or damage of
the Customer Equipment. Sage Networks shall bear the risk of loss or damage of
equipment that it provides for the Hosting Services. Neither the Customer nor
Sage Networks shall bear the risk of loss or damage of third party equipment
used in providing the Hosting Services.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date indicated above.
SAGE NETWORKS, INC.
By: /s/ Xxxxxxx X. Frassler
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Xxxxxxx X. Xxxxxxx,
Co-Chairman
HOMECOM COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, President
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