EXHIBIT 10.20
NAVISITE
SITEHARBOR
CO-LOCATION
SERVICES AGREEMENT
This Agreement is entered into on this 30th day of June 1998 (the "Effective
Date"), by and between NaviSite Internet Services Corporation ("NaviSite"), with
an address of 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 and Vicinity
("Client"), with an address of 0000-x XXX Xxxxxxx Xxxx, Xxxx Xxxx, XX 00000.
1. DEFINITIONS
The following capitalized terms shall have the meanings set forth below for
purposes of this Agreement:
1.1 "Client Equipment" means the servers and any other equipment provided
by the Client and installed by the Client or at the direction of the Client
within the Client Space.
1.2 "Client Materials" means all Client Equipment, Content and any other
materials provided by Client or acquired on behalf of Client in connection with
the XXXXXXXXXX.XX Services.
1.3 "Client Space" means the server racks, cabinets and the space
contained therein to be provided by NaviSite for the installation of the Client
Equipment, as described on Schedule A.
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1.4 "Confidential Information" means, subject to the exceptions set forth
in Section 11.2 below, any information and data, regardless of whether it is in
tangible form, of either party that such party has either marked as confidential
or proprietary, or has identified in writing as confidential or proprietary
within ten (10) days of diSiteHarbor.CLosure to the other party. Confidential
Information shall include, without limitation, information regarding business
plans, strategies, technology, customers and products, each party's proprietary
software and the terms of this Agreement.
1.5 "Content" means any information, data, software, programs, operating
systems and any other materials installed by Client or at the direction of the
Client on the Client Equipment.
1.6 "Designated NaviCenter" means NaviSite's Internet data center where
the Client Equipment will be installed, as designated on Schedule A.
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1.7 "XXXXXXXXXX.XX Services" has the meaning set forth in Section 2.1.
2. SERVICES
2.1 Services. NaviSite will provide Client the XXXXXXXXXX.XX Services as
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described in Schedule A attached hereto in accordance with the terms and
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conditions of this Agreement.
The information contained in this document is confidential and
proprietary.
2.2 Access to Client Space. NaviSite will provide Client access to the
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Client Space within the Designated NaviCenter seven (7) days per week,
twenty-four (24) hours per day for the term of this agreement; provided,
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however, that such access shall be (i) limited solely to the individuals
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identified and authorized by Client to have access to the Client Space and the
Designated NaviCenter, as named on Schedule C ("Representatives"), and (ii)
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subject to such Representatives compliance with the terms of this Agreement.
2.3 Consulting Services. Client may request that NaviSite provide
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additional services outside the scope of XXXXXXXXXX.XX Services which will
described in Schedule D attached hereto ("Statement of Work"). Such Consulting
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Services, if any, will be subject to the terms and conditions contained this
Agreement and any additional terms and conditions described in the Statement of
Work.
3. FEES, PAYMENTS AND TAXES
3.1 Fees. The fees and charges for XXXXXXXXXX.XX Services and Consulting
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Services will be as set forth in Schedule B.
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3.2. Billing and Payment. Payment of fees and charges are due within
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thirty (30) calendar days after the date of each NaviSite invoice. All payments
shall be made in U.S. dollars. Amounts past due shall be subject to an
interest charge equal to one and one-half percent (1.5%) per month, or, if less,
the highest rate allowed by applicable law.
3.3 Taxes. Client will be responsible for and agrees to pay in full any
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and all taxes resulting from this Agreement or any activities under this
Agreement except for taxes based upon NaviSite's net income.
4. CLIENT CONTENT
Client shall retain title to and all rights in the Content; provided,
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however, NaviSite shall retain title to and all rights in materials owned,
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licensed or developed by NaviSite and installed on the Client Equipment by
NaviSite or at the direction of NaviSite including any hardware, software, or
know-how, related to NaviSite's products or network services, owned, licensed or
developed by NaviSite.
5. CLIENT OBLIGATIONS
As a condition to NaviSite's performance of the XXXXXXXXXX.XX Services and
Consulting Services, Client agrees to the following:
5.1 Provide Content and Client Equipment. Client shall be responsible for
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providing at its own expense all Client Materials and any other materials
necessary for the installation of the Client Materials within the Client Space
and necessary to NaviSite's offering of the XXXXXXXXXX.XX Services and
Consulting Services.
5.2 Cooperation. Client shall reasonably cooperate with NaviSite in
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performing the XXXXXXXXXX.XX Services and Consulting Services, including
providing NaviSite with timely access to Client Equipment, personnel (executive
and staff), utilities and information reasonably necessary to the performance of
the XXXXXXXXXX.XX Services and Consulting Services, at no charge to NaviSite.
Client is responsible for the accuracy and completeness of the information and
data Client supplies to NaviSite for use hereunder.
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5.3 Access and Security. Client agrees that Client's access to and use of
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the Client Space and the Designated NaviCenter shall comply with the then
current security measures that NaviSite has imposed for the protection of the
Client, Client Space, Designated NaviCenter and other clients. Client will be
fully responsible for any damages, losses, charges, costs, expenses, and any
third party claims resulting from its access to, or, use of, the Client Space
and the Designated NaviCenters.
5.5 No Competitive Services. Client may not at any time permit any
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XXXXXXXXXX.XX Services or Consulting Services to be utilized for the provision
of any services that compete with any NaviSite services, without NaviSite's
prior written consent.
5.6 Insurance. Client shall keep in full force and effect during the term
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of this Agreement, comprehensive general liability for bodily injury and
property damage insurance in an amount not less than $1 million per occurrence.
Client 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 Client's and its agents' industries. Client will furnish NaviSite with
certificates of insurance which evidence the minimum levels of insurance set
forth above. Client will cause its insurance providers to name NaviSite as an
additional insured and notify NaviSite in writing of the effective date thereof.
6. CLIENT REPRESENTATIONS AND WARRANTIES
6.1 Client Equipment. Client represents and warrants that it owns or has
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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
Client Materials as contemplated by this Agreement. Client further represents
and warrants that its placement, arrangement, and use of the Client Materials in
the Designated NaviCenters complies with the Client Material manufacturers'
environmental and other technical specifications.
6.2 Content. Client warrants and represents that the Content: (i) does
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not infringe or violate the rights of any third party including, but not limited
to, intellectual property rights; (ii) will not result in any harm to NaviSite
or NaviSite's business, as determined in NaviSite's good faith reasonable
discretion; (iii) is not defamatory or obscene and does not violate any right of
privacy or publicity; and (iv) does not violate any applicable law or
regulation.
6.3 Compliance with Law. Client warrants and represents that Client's use
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of the XXXXXXXXXX.XX Services will comply with U.S. law and any other applicable
law and regulations, including laws and regulations regarding the transmission
of technical data which is exported from the United States. Client further
represents and warrants that it will not to use the XXXXXXXXXX.XX Services or
Consulting Services for any illegal purposes.
6.4 Non-interference. Client warrants and represents that Client will not
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use the XXXXXXXXXX.XX Services or Consulting Services to interfere with or
disrupt other NaviSite clients, network users, network services or network
equipment. Interference or disruptions include, but are not limited, to
distribution of unsolicited advertising or chain letters, propagation of
computer worms and viruses, and use of the XXXXXXXXXX.XX Services or Consulting
Services to make unauthorized entry to any other computer or machine accessible
via the Internet.
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6.5 Breach of Warranties. In the event of any breach, or reasonably
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anticipated breach, of any of the foregoing warranties and representations, in
addition to any other remedies available at law or in equity, NaviSite will have
the right to immediately, in NaviSite's sole discretion, to suspend the
XXXXXXXXXX.XX Services or Consulting Services if deemed reasonably necessary by
NaviSite to prevent any harm to NaviSite and its business. NaviSite also
reserves the right (but shall have no obligation) to delete any Content
installed on a server at a Designated NaviCenter which it believes in good faith
breaches any of the foregoing warranties.
7. WEB LINK AND MARKETING
7.1 Banner Link. Client will display a banner indicating that Client's
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web site is being hosted by NaviSite and permit users of the Client's web site
to access NaviSite's web site by a direct link from the banner, provided the
appearance of the banner is mutually agreeable to both parties.
7.2 Marketing. Client consents to NaviSite's reference to Client by trade
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name and trademark in NaviSite's marketing materials and on NaviSite's web site.
8. NAVISITE WARRANTIES AND DISITEHARBOR.CLAIMERS
8.1 Service Warranty. NaviSite warrants that the XXXXXXXXXX.XX Services
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and Consulting Services, if any, provided hereunder will be performed in a
workmanlike manner in accordance with reasonable commercial standards.
8.2 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN
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SECTION 8.1 ABOVE, NAVISITE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND
HEREBY XXXXXXXXXXXX.XXXXXX THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. NAVISITE DOES NOT WARRANT THAT THE
XXXXXXXXXX.XX SERVICES AND CONSULTING SERVICES WILL BE UNINTERRUPTED, ERROR-FREE
OR COMPLETELY SECURE.
9. LIMITATION OF LIABILITY
NAVISITE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR DAMAGES
RESULTING FROM LOSS OF USE OR LOSS OF CONTENT. NAVISITE SHALL HAVE NO LIABILITY
FOR ANY DAMAGES RESULTING FROM CLIENT'S FAILURE TO PERFORM CLIENT'S OBLIGATIONS
HEREUNDER. IN NO EVENT SHALL NAVISITE'S LIABILITY FOR DAMAGES HEREUNDER EXCEED
THE CHARGES PAID BY THE CLIENT HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD.
10. INDEMNIFICATION
10.1 NaviSite's Indemnification of Client. NaviSite will indemnify,
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defend and hold Client harmless from and against any and all costs, liabilities,
losses, damages and expenses, including reasonable attorney's fees, and amounts
paid in settlement, resulting from or arising out of any claim, suit, action or
proceeding brought against Client as a consequence of (i) NaviSite's
infringement of any third party copyright, trademark or trade secret, or (ii)
personal injury to Client's Representatives due to NaviSite's gross negligence
or willful misconduct.
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10.2 Client's Indemnification of NaviSite. Client will indemnify, defend
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and hold NaviSite, its affiliates and its clients harmless from and against any
and all costs, liabilities, losses, damages and expenses, including reasonable
attorney's fees, and amounts paid in settlement resulting from or arising out of
any claim, suit, action or proceeding brought against NaviSite, its affiliates
or other clients as a consequence of (i) infringement of any third party
copyright, trademark or trade secret, (ii) breach or alleged breach of Client's
obligations, representations and warranties set forth herein, or (iii) the
Client Materials or any Client action or inaction related to the Client
Materials.
11. CONFIDENTIALITY AND PROPRIETARY INFORMATION
11.1 Confidential Information. Each party acknowledges that it will have
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access to Confidential Information. Each party agrees that it will not use in
any way, for its own account or the account of any third party, except for the
performance of this Agreement, nor diSiteHarbor.CLose 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.
11.2 Exceptions. Information will not be deemed Confidential Information
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hereunder if such information: (i) is known to the receiving party prior to
receipt from the diSiteHarbor.CLosing party directly or indirectly from a source
other than one having an obligation of confidentiality to the
diSiteHarbor.CLosing party; (ii) becomes known (independently of
diSiteHarbor.CLosure by the diSiteHarbor.CLosing party) to the receiving party
directly or indirectly from a source other than one having an obligation of
confidentiality to the diSiteHarbor.CLosing party; (iii) becomes publicly known
or otherwise ceases to be secret or confidential, except through a breach of
this Agreement by the receiving party; or (iv) is independently developed by the
receiving party.
12. TERM AND TERMINATION
12.1 Term. The initial term of this Agreement shall be one (1) year from
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the Effective Date, unless terminated sooner as provided herein. On the first
anniversary of the Effective Date, this Agreement shall be automatically renewed
for additional one (1) year terms, unless either party gives written notice to
terminate ninety (90) days prior to the expiration of the initial term or any
renewal term.
12.2 Termination for Cause. Either party shall have the right to
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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 ten (10) days after receipt of written
notice from NaviSite; (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.
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12.3 Effect of Termination. Upon the effective date of expiration or
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termination of this Agreement: (a) NaviSite will immediately cease providing
XXXXXXXXXX.XX Services and Consulting Services; (b) any and all payment
obligations of Client 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; and (d) Client will remove from the Designated
NaviCenters all Client Equipment and any of its other property within the
Designated NaviCenters within ten (10) days of such expiration or termination
and return the Client Space to NaviSite in the same condition as it was prior to
installation of the Client Equipment, normal wear and tear excepted. If Client
does not remove such property within such ten-day period, NaviSite will have the
option to (i) move any and all such property to secure storage and charge Client
for the cost of such removal and storage, and/or (ii) liquidate the property in
any reasonable manner. Neither party will be liable to the other for any
termination or expiration of this Agreement in accordance with its terms;
provided, however, the Client shall remain liable for all applicable fees
accrued prior to any termination provided hereunder.
12.4 Survival. Sections 9, 10, 11, 12.3, 12.4, 13.1, 13.5 and 13.6 shall
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survive any termination of this Agreement.
13. GENERAL
13.1 Relationship of the Parties. Nothing in this Agreement shall be
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construed to imply a joint venture, partnership, or agency relationship between
the parties, and NaviSite shall be considered an independent contractor when
performing services under this Agreement.
13.2 No Lease. This Agreement is a services agreement and is not intended
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to and will not constitute a lease of any real or personal property.
13.3 Assignment. Neither party may assign this Agreement, in whole or in
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part, without the prior written consent of the other party. Notwithstanding the
previous sentence, NaviSite may transfer or assign its rights and obligations
under this Agreement to a subsidiary or entity controlling, controlled by or
under common control with NaviSite or to an entity that acquires NaviSite by
merger or purchase of all or substantially all of NaviSite's assets.
13.4 Force Majeure. Either party shall not be in default of its
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obligations to the extent its performance is delayed or prevented by causes
beyond its control, including but not limited to acts of God, earthquake, flood,
embargo, riots, sabotage, utility or transmission failures, fire or labor
disturbances.
13.5 Non-Solicitation. During the term of this Agreement and for a period
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of one year after termination of this Agreement, Client agrees 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 NaviSite.
13.6 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts, excluding its
conflict of law rules. Any action, suit or other legal proceeding which the
parties commence to resolve any matter arising under or relating to any
provision of this Agreement shall be commenced only in a court of the
Commonwealth of Massachusetts (or if appropriate, the federal district court
located in Boston, Massachusetts), and the parties hereby consent to the
jurisdiction of such court with respect to any action, suit or proceeding
commenced in such court by the either party.
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13.7 Severability. In the event any provision of this Agreement is held
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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.
13.8 Entire Agreement. This Agreement and Schedules A, B, C and D
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constitutes the entire agreement between the parties as of the Effective Date
and may only be modified by an instrument in writing signed by both parties.
This Agreement cancels and supersedes any and all prior proposals (oral or
written), understandings, representations, conditions, warranties, covenants and
other communications between the parties which relate to the subject matter of
this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement by their authorized
representatives.
NAVISITE INTERNET SERVICES ("CLIENT")
By:________________________________ By:_____________________________
Name: Xxxxxx X. Xxxxx Name:___________________________
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Title: Director of Sales Title:__________________________
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Date: June 30, 1998 Date:___________________________
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SCHEDULE A
XXXXXXXXXX.XX SERVICES
Installation:
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Installation of Client Equipment including: Network cabling, electrical wiring,
data center preparation and permanent racking/shelving. In addition, NaviSite
will provide initial DNS domains (up to 10 domains), DNS and IP addresses, IP
and routing, network topology documentation, and project management during
implementation.
Description of Service:
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The basic XxxxXxxxxx.XX service includes:
. Burstable bandwidth (up to 90Mbps) from multiple backbone providers
. Dedicated 100mbps Ethernet segment
. Monitoring of bandwidth services, routers and switches (7x24)
. Network connectivity monitoring and notification (7x24)
. Monthly bandwidth utilization reporting
. 7x24 physical access
. Placement in a secure cabinet
. UPS power with diesel generator back-up
Designated NaviCenter (Type in the appropriate NaviCenters):
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NaviCenter West (Scotts Valley, CA)
SERVER FARM (Indicate Number and Type of Servers below):
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Server(s): 2 Sun Enterprise 5000 and 6 NT servers
Specifications:
Power Requirements:
Environmental Requirements:
The information contained in this document is confidential and proprietary.
SCHEDULE B
FEES
Installation and Service Fees:
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Service Description Fees
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Installation Network cabling, electrical $2000
(one time fee) wiring, data center and
location preparation.
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Server management Burstable bandwidth from $ 2340/ per month
(XxxxXxxxxx.XX) multiple backbone providers,
dedicated 100mbps Ethernet
segment, monitoring of
bandwidth services, routers
and switches (7x24), network
connectivity monitoring and
notification (7x24), monthly
bandwidth utilization
reporting,7x24 physical
access, placement in a
secure cabinet, and UPS
power with diesel generator
back-up
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Bandwidth:
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Bandwidth Tier Cost/Month
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0 to 10 Mbps $750/Mbps
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Each Mbps above 10Mbps $700
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(3) 100/Mbps Ethernet port $750each / one time set-up
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Additional Services:
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Tape Back-up Weekly, full and 6 daily incremental - $200/month
One time set-up - $500
ISP Backend connection - $300 / month
One time set-up $1000
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SCHEDULE C
CLIENT REPRESENTATIVES
Name Phone
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1) Xxxxx Xxxxx 000-000-0000 (x208)
2) Xxxxx Xxxxxx 000-000-0000
3)
4)
5)
6)
7)
8)
9)
10)
The information contained in this document is confidential and proprietary.
SCHEDULE D
CONSULTING SERVICES/STATEMENT OF WORK
Remote Hands consulting is available to Vicinity at $100/hour. The minimum
charge is 1/2 hour. Remote hands consulting can include, but is not limited to
the following activities:
. Configuration changes
. Operating system management
. Problem resolution, and
. System architectural consulting.
The information contained in this document is confidential and proprietary.
