Los Angeles, CA 90017
0000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx x0-000
Xxx
Xxxxxxx, XX 00000
xxx.xxxxxxx.xxx
Tel:
(000) 000-0000 Fax: (000) 000-0000
Exhibit
10.27
GIGABIT
DATA CENTER SERVICES AGREEMENT
As
a
Gigabit Data Center ("GDC") Customer you agree to be bound by the terms of
the
GDC Services Agreement as set forth below. Please read this document thoroughly
and initial at the end of each page in acknowledgement of this agreement.
1.
GENERAL TERMS
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A.
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This
document, along with the Gigabit Data Center Service Order(s) ("GDCSO(s)")
agreement (s), shall comprise a complete and binding agreement between
Customer and Alchemy. Each GDCSO agreement, and any amendments thereto,
when dated and subscribed by Customer and Alchemy, 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
GDCSO
agreement(s), the terms of the GDCSO agreement(s) shall in all cases
prevail.
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B.
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In
connection with the Space made available hereunder, Alchemy shall
perform
services which support the overall operation of the Gigabit Data
Center
("GDC"), e.g., janitorial services, environmental systems maintenance,
and
power plant maintenance, at no additional charge to Customer. However,
Customer shall be required to maintain the Collocation Space in an
orderly
manner and shall be responsible for the removal of trash, packing,
cartons, etc. from the Space. Further, Customer shall maintain the
Space
in a safe condition, including but not limited to the preclusion
of
storing combustible materials in the
Space.
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C.
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Any
option granted to Customer to renew its license to occupy the Space
shall
be contingent on the election by Alchemy to continue to own or lease
the
Premises in which the Space is located for the duration of the Renewal
Period(s), such election to be exercised at the sole discretion of
Alchemy.
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2.
GDC SERVICES
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A.
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Collocation
Space: If contracted for, Alchemy shall provide Customer with shared
or
private data center space as indicated in the
GDCSO(s).
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B.
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Connectivity:
If contracted for, Alchemy shall provide Customer with connectivity
to the
Internet through Alchemy's network as specified in the GDCSO(s).
Connectivity is measured and billed using a 95/5 Rule. The aggregate
of
both inbound and outbound bandwidth is sampled at five-minute intervals
throughout the month. Once all samples have been accumulated, the
top 5%
of the collected samples are discarded, the highest remaining sample,
rounded to the next full mega bit per second (Mbps) times the negotiated
rate, will be billed. Alchemy shall provide cross-connectivity, where
applicable, for an additional fee.
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C.
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Virtual
Hosting: If
contracted for, Alchemy
shall provide Customer with virtual hosting on servers owned by either
Alchemy or a third party supplier as indicated in the
GDCSO(s).
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D.
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Streaming:
If
contracted for, Alchemy
shall provide Customer with video and audio streaming services as
indicated
in this agreement and
in
the GDCSO(s).
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E.
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Content
Distribution: If contracted for, Alchemy shall provide Customer with
content distribution services as indicated in the
GDCSO(s).
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F.
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Storage:
If
contracted for, Alchemy
shall provide Customer with storage on the EMC Enterprise Storage
System
as indicated in the GDCSO(s).
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G.
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Encoding
and Production: If
contracted for, Alchemy
shall provide Customer with encoding and production services as indicated
in the GDCSO(s).
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H.
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Equipment
Leasing: If
contracted for, Alchemy
shall provide Customer with leased equipment as indicated in the
GDCSO(s).
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I.
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Technical
Support: If contracted for, Alchemy shall provide Customer with complete
technical support upon Customer's request and in accordance with
Alchemy's
terms and conditions and listed
rates.
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J.
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Eyes
Hands Support: If contracted for, Alchemy shall provide Customer
with
assistance to observe conditions in their Collocation Space and offer
light hands assistance such as shutting off and turning on equipment
as
directed by Customer.
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3. STREAMING
SERVICES
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A.
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Content
Preparation:
If contracted for, Alchemy shall prepare Content consisting of fully
encoded audio or video product provided by Content Provider for placement
on Alchemy servers. (Alchemy may also perform encoding for an additional
fee, as agreed by the parties). Customer shall provide Alchemy with
timely
access to its Content as required for Alchemy to prepare said Content
and
provide all services Customer has elected to receive. Customer understands
and acknowledges that Alchemy’s performance depends, in part, upon
Customer’s assistance and cooperation in all matters pertaining to this
Agreement.
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B.
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Connectivity
and Content Streaming:
If contracted for, Utilizing Alchemy’s servers, Customer shall be provided
with Content storage and Internet connectivity. Customer’s content shall
be distributed on an “On-demand” basis on the Internet utilizing the
Internet video and or audio formats specified by Customer, which
may
include, Microsoftâ
Windows Media Server’
(“WMS”), Appleâ
QuickTime Server’
(“QuickTime”), Server Push and Web Page serving. Customer shall agree to a
committed amount of minimum monthly transfer of content, measured
in
megabytes, as stated in the GDCSO(s). Although it is Alchemy’s policy to
accommodate usage above committed amounts, megabyte transfer levels
beyond
the committed amounts are not
guaranteed.
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C.
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Technical
Support/Maintenance:
If contracted for, shall provide Customer with technical support
upon
Customer's request
and in accordance with Alchemy's terms and conditions and applicable
fees.
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4. LICENSES
Customer
hereby grants Alchemy a worldwide, non-exclusive license to host, distribute,
display, cache and transmit Content in connection with the Web Content
Distribution Services.
5. OWNERSHIP
Customer
retains all right, title and interest in and to the Content it places with
Alchemy. Alchemy, its heirs, successors and/or assigns retain all right, title
and interest in and to all software, hardware, products, equipment and other
intellectual properties created by or for Alchemy in connection with the Web
Content Distribution Services.
6.
TERM OF AGREEMENT
|
A.
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Customer's
license to occupy the Collocation Space shall begin on the "Start
Date,"
as set forth in the GDCSO agreement(s) or on the date Alchemy completes
the build-out of the Space, whichever is later. The term of the Customer's
license to occupy the Space shall be indicated on the
GDCSO(s).
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B.
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Should
Alchemy fail, for any reason to tender possession of the Space to
Customer
on or before the Requested Service Date (specified in the GDCSO
agreement(s) relevant thereto) this Agreement shall not be void or
voidable. If Alchemy fails to tender possession of the Space 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 Alchemy, declare the relevant GDCSO agreement(s)
null and void with no further obligation attributed to Customer,
and
Alchemy 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,
Alchemy shall retain any funds necessary to recover the cost or
obligations incurred on behalf of Customer. Except as provided herein,
Alchemy shall not be liable to Customer in any way as a result of
a delay
or failure to tender possession.
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C.
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Following
the expiration of the Term, as set forth in the GDCSO agreement(s)
noted
“End Date,” for each Space and/or Service or failure of the Parties to
enter into any Renewal Periods, Customer's license to occupy the
Space and
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 Alchemy upon thirty (30) days prior written notice.
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7.
TERMINATION
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A.
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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
Alchemy, which must be cured within ten (10) days of the payment
due date.
Alchemy 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.
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B.
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Upon
termination or expiration of the Term for each Space, Customer agrees
to
do the following: (i) remove the Equipment and other property that
has
been installed by Customer or Customer's agent(s) and return the
Space to
Alchemy in substantially the same condition as it was on the date
of
installation, Alchemy at its sole discretion may refuse to allow
the
removal of some or all Customer equipment until all outstanding amounts
owed to Alchemy are paid in full; (ii) pay any outstanding fees within
five (5) days of termination of service; (iii) return any confidential
information it has received from Alchemy and (iii) return any equipment
or
supplies that are the property of Alchemy. 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.
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C.
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In
the event the GDC becomes the subject of a taking by eminent domain
by any
authority having such power, Alchemy shall have the right to terminate
this Agreement. Alchemy shall attempt to give Customer reasonable
advance
notice of the removal schedule. Customer shall have no claim against
Alchemy for any relocation expenses, any part of any award that may
be
made for such taking or the value of any unexpired term or renewed
periods
that result from a termination by Alchemy under this provision, or
any
loss of business from full or partial interruption or interference
due to
any termination. However, nothing contained in this Agreement shall
prohibit Customer from seeking any relief or remedy against the condemning
authority in the event of an eminent domain proceeding or condemnation
that affects the Space.
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8.
DEFAULT
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A.
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If
Customer fails to perform its obligations, or fails to pay for services
rendered hereunder, Alchemy 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, Alchemy 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. Alchemy'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, Alchemy may discontinue
any or
all services for any period of time as it deems appropriate without
written notice to Customer, and such action shall not be deemed a
breach
of this Agreement by Alchemy.
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B.
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At
any time during the term of this Agreement, Alchemy may, at it's
sole
option, immediately terminate this Agreement if Customer is not then
maintaining the Equipment solely for the purpose of originating and/or
terminating telecommunications transmissions carried over the Alchemy
Network or as otherwise set forth in this Agreement, or pursuant
to the
terms and conditions, if any, contained in any Collocation Schedule
identified herewith.
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C.
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If
Customer commits an act of default under any Collocation Schedule
to which
this Agreement pertains, Alchemy may, in its sole discretion, declare
Customer to be in default of any and all other Collocation Schedules
then
in effect, without the necessity of showing separate failures, acts
or
omissions by Customer.
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D.
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If
Customer commits an act of default with respect to the purchase of
telecommunications services that would entitle Alchemy under its
separate
tariffs and agreements to terminate its services to Customer, then
Alchemy
and all Alchemy's Affiliates shall be entitled to terminate this
Agreement
and all GDC services to which this Agreement
pertains.
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E.
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Alchemy
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.
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F.
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At
the termination of this agreement for any reason or if Customer has
failed
to make timely payments of amounts owed, Alchemy at its sole discretion
may refuse to allow the removal of some or all of Customer equipment
from
Alchemy’s facilities until all outstanding amounts owed to Alchemy are
paid in full. In order to satisfy outstanding balances owed, Customer
specifically herein consent and agree that Alchemy may take possession
and
ownership of all or part of Customer equipment, if Customer fails
to bring
all payments up to date within thirty (30) days of receiving written
notice from Alchemy of its intent to take possession of said equipment.
If
the value of the equipment in which Alchemy has taken possession
and
ownership of has a resale value that is less than the amount owed,
Alchemy
is entitled to take whatever legal actions are necessary to collect
the
difference.
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9.
PRICES AND PAYMENT TERMS
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A.
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Customer
shall pay ALCHEMY monthly recurring fees (the "Recurring Fees"),
which
shall include charges for use and occupancy of the Space (the "Occupancy
Fees"), connectivity (or cross-connect fees, if applicable), power
charges, streaming charges and, where applicable, technical support
and
system administration. In addition to any Recurring Fees, Customer
shall
be charged non-recurring fees for build-out of the Space (the "Build-Out
Charges"), where applicable, Escort charges, and other services,
which
shall be set forth in the GDCSO agreement(s). If Customer requests
that
Alchemy provide services not delineated herein or in the GDCSO
agreement(s) 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. Late payments hereunder will
accrue
interest at a rate of one and one-half percent (1 ½%) per month, or the
highest rate allowed by applicable law, whichever is lower. If in
its
judgment Alchemy determines that Customer is not creditworthy or
is
otherwise not financially secure, Alchemy may, upon written notice
to
Customer, modify the payment terms to require assurances to secure
Customer's payment obligations
hereunder.
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B.
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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 Alchemy for any applicable taxes that
are
levied based on the transactions hereunder, exclusive of taxes on
income
and real estate taxes on the GDC. Any such charges shall be invoiced
and
payable within the payment terms of this Agreement. Alchemy 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.
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C.
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The
Occupancy Fee and/or Power Charges shall be increased to reflect
any
increases incurred by and required under the lease relevant to the
Premises in which the Space is located. Customer shall pay to Alchemy
its
pro rata share of any such increases based on the number of square
feet of
the Space compared to the number of square feet leased by Alchemy
under
the applicable lease. Alchemy shall notify Customer of any such increase
as soon as practicable.
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D.
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Payments
shall be due upon Customer's receipt of each monthly invoice. Late
payment
charges will be calculated based on 1.5% per month of the unpaid
amount.
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E.
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Charges
delineated in the Collocation Schedule for build-out of the Space
shall be
invoiced and paid by Customer when invoiced. Alchemy may require
payment
of the "Build Out Fees" prior to commencing
construction.
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F.
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Customer
agrees to reimburse Alchemy 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 or as a consequence of Customer's removal
of the
Equipment or property installed in the Space.
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10.
ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE AND INSTALLATION OF
EQUIPMENT
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A.
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Before
beginning any delivery, installation, replacement or removal work,
Customer must obtain Alchemy 's written approval of Customer's choice
of
suppliers and contractors which approval shall not be unreasonably
withheld or delayed. Alchemy may request additional information before
granting approval and may require scheduling changes and substitution
of
suppliers and contractors as conditions of its approval. Approval
by
Alchemy is not an endorsement of Customer's supplier or contractor,
and
Customer will remain solely responsible for the selection of the
supplier
or contractor and all payments to Alchemy for construction work performed
on their behalf.
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B.
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Customer
shall not make any construction changes or material alterations to
the
interior or exterior portions of the Space, including any cabling
or power
supplies for the Equipment, without obtaining Alchemy's written approval
for Customer to have the work performed. Alchemy reserves the right
to
perform and manage any construction or material alterations within
the GDC
and Collocation Space areas at rates to be negotiated between the
Parties
hereto.
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C.
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Customer's
use of the Space, installation of Equipment and access to the GDC
shall at
all times be subject to Customer's adherence to the generally accepted
industry standards, security rules and rules of conduct established
by
Alchemy for the GDC. Except where advanced written permission has
been
given by Alchemy, Customer's access to the GDC shall be limited to
the
individuals identified and authorized by Customer to have such access.
Customer agrees not to erect any signs or devices to the exterior
portion
of the Space without submitting the request to Alchemy and obtaining
Alchemy's written approval.
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D.
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Customer
may not provide, or make available to any third party, space within
Collocation Space without Alchemy's prior written consent. If Customer
should provide, or make available to any third party, space within
the
Collocation Space without obtaining the written consent of Alchemy,
Customer shall be in breach of this Agreement and Alchemy may pursue
any
legal or equitable remedy, including but not limited to the immediate
termination of this Agreement.
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E.
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Customer
is responsible for maintaining the cleanliness of the Collocation
Space.
There shall be no trash or dust allowed to accumulate within the
Space.
Neither food nor drink is permitted within the Collocation area,
including
within individual cages.
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F. Customer's
use of Alchemy services shall at all times comply with Alchemy's then-current
Acceptable Use Policy, as amended by Alchemy from time to time. The sending
of
unsolicited bulk email is specifically forbidden under this Agreement. Customer
activities that result in IP address blocking, filtering, or other such actions
by outside third party entities which cause Alchemy or any of Alchemy’s other
customers to be negatively impacted is also specifically forbidden under this
Agreement. If Customer is found by Alchemy to be in violation of any part of
this section, Alchemy has the right to immediately terminate services to
customer and/or this Agreement.
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G.
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Customer
is responsible for retrieving entry passes from its terminated employees
or others whom Customer no longer wishes to have access to its Collocation
space.
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H.
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Alchemy
shall not arbitrarily or discriminatorily require Customer to relocate
the
Equipment; however, upon sixty (60) days prior written notice or,
in the
event of an emergency, such time as may be reasonable, Alchemy reserves
the right to change the location of the Space or the GDC to a site
which
shall afford comparable environmental conditions for the Equipment
and
comparable accessibility to the Equipment. Alchemy and Customer will
work
together in good faith to minimize any disruption of Customer's services
as a result of such relocation. Alchemy shall be responsible for
the cost
of improving the Space to which the Equipment may be relocated, and
for
relocation of Equipment interconnected to Alchemy services, except
that
Alchemy shall not be responsible for relocating facilities installed
in
violation of this Agreement.
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I.
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All
equipment brought into or taken out of the GDC facility must be cleared
through Alchemy's equipment control system. Alchemy shall not be
held
responsible for the condition of equipment shipped to the GDC that
arrives
in damaged condition.
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11.
INSURANCE
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A.
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If
Space is contracted for, Customer agrees to maintain, at Customer's
expense, during the entire period of occupancy, for each Collocation
Space
(i) Comprehensive General Liability Insurance for bodily injury or
property damage, in an amount not less than one million dollars per
occurrence; (ii) Workers' Compensation Insurance, with a limit not
less
than five hundred thousand dollars Bodily Injury each accident (iii)
"All
Risk" Property insurance covering all of Client's personal property
located at the GDC, (iv) commercial automobile liability insurance
(bodily
injury and property damage) in an amount not less than one million
dollars
per accident for all vehicles including owned, non-owned, leased
and hired
vehicles; (v) Errors and Omissions insurance. All property insurance
covering customer's property located in the GDC premises shall expressly
waive any right of subrogation on the part of the insurer against
Alchemy,
its officers, directors employees, agents and contractors. Customer
further agrees to name Alchemy and the party from whom Alchemy leases
its
GDC space, as "Additional Insured" on the appropriate
policies.
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B.
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A
reputable insurance company authorized to do business in the state
of
California shall issue all policies subject to this provision. Prior
to
installation of equipment in Customer's collocation space, customer
shall
furnish Alchemy with certificates of insurance which evidence the
minimum
levels of insurance set forth herein. Customer shall not materially
alter
or cancel insurance relating to GDC occupancy without notification
to
Alchemy of not less than thirty days.
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12.
REPRESENTATIONS AND WARRANTIES OF CUSTOMER
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A.
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Equipment:
Customer represents and warrants 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 Gigabit Data Center complies with the Customer Equipment
Manufacturer's environmental and other
specifications.
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B.
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Customer's
Business: Customer represents and warrants that Customer's services,
products, materials, data, information and equipment used in connection
with this Agreement and Customer's use of GDC 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 federal, state or local law or regulation or infringe
in
any way upon the rights of third
parties.
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C.
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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 in law or equity, Alchemy shall have the right,
at
Alchemy's sole discretion, to suspend any related GDC Services if
deemed
reasonably necessary by Alchemy to prevent any harm to its business.
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13.
DISCLAIMERS AND LIMITATION OF LIABILITY
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A.
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The
collocation space is accepted "as is" by customer. Customer acknowledges
that no representation has been made by alchemy as to the fitness
of the
collocation space for customer's intended purpose. Except for the
warranties set forth in this article, there are no warranties, whether
express, implied, oral, or written, with respect to the collocation
space
or services covered or furnished pursuant to this agreement, including
but
not limited to, any implied warranty of merchantability or fitness
for a
particular purpose. Moreover, the remedies provided in this article
are
exclusive and in lieu of all other
remedies.
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B.
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Customer
and its representatives visit the GDC at their own risk and Alchemy
assumes no liability for any harm to such persons resulting from
any cause
other than Alchemy's negligence or willful misconduct resulting in
personal injury to such visitors.
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C.
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Alchemy
assumes no liability for damage or loss relating to customers business.
To
the extent Alchemy 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.
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D.
|
The
liability of Alchemy for damages arising out of the services provided
herein, including, without limitation, mistakes, 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.
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Gigabit Data Center Agreement - Confidential
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Service
Agreement
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E.
|
Customer
is responsible for providing Alchemy with emergency contacts, including
phone numbers and pager numbers. Alchemy shall use reasonable efforts
to
contact Customer in the event of a malfunction affecting Customer’s
equipment (e.g. a power outage affecting Customer’s equipment). However,
Alchemy shall not be liable for damage, which may occur as a result
of an
inability to make contact with Customer’s emergency
representative.
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14.
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.
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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.
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15.
NON-SOLICITATION
Customer
understands and acknowledges that; due to the highly technical nature of
Alchemy's business Alchemy would suffer significant financial damage from the
loss of GDC or other Alchemy employees. Therefore, Customer agrees that it
shall
refrain, during the term of this Agreement and for a period of one year after
the expiration of this Agreement, from directly or indirectly employing or
seeking or attempting to employ or solicit for employment, in any capacity
(whether as a full or part time employee or as a consultant or independent
contractor) any person who is employed at Alchemy.
________
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Gigabit Data Center Agreement - Confidential
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Service
Agreement
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16.
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.
17.
ASSIGNMENTS OR TRANSFER
Customer
shall not assign or transfer the rights or obligations associated with this
Agreement, in whole or in part, without Alchemy's prior written consent.
18.
PUBLICITY
Customer
shall not use Alchemy's name in publicity or press releases without Alchemy's
prior written consent.
19.
LIMITATION OF LIABILITY
|
A.
|
In
no event shall Alchemy 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 by Customer arising from or pertaining to Customer's
use or
occupancy of the Collocation Space including, without limitation,
damages
arising from interruption of electrical power or HVAC services.
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|
B.
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Customer
shall indemnify and hold harmless Alchemy, its officers, directors,
agents, contractors and employees, from and against any and all third
party claims, costs, expenses or liabilities arising from or in
connections with Customer's use of the GDC facility. Customer further
agrees to indemnify Alchemy against Customer's acts of negligence
resulting in damage to third parties.
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20.
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.
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Initial
Page
12
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Alchemy
Gigabit Data Center Agreement - Confidential
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Service
Agreement
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21.
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.
22.
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, which is signed, by both parties or their
duly
authorized representatives.
23.
NOTICE
Any
and
all notices to be provided under this agreement shall be in writing. Notice
shall be considered received, delivered and effective three (3) business days
following posting when mailed, postage prepaid, by United States mail (certified
or registered mail, return receipt requested), addressed to the party to be
notified. If delivered in person, notice shall be considered received, delivered
and effective the date so delivered. For purposes of notice, the addresses
of
the parties, until changed as herein provided, shall be as follows. If intended
for Alchemy, shall be addressed: Alchemy Communications, Inc., 0000 Xxxx
0xx
Xxxxxx,
Xxxxx X0-000, Xxx Xxxxxxx, XX 00000, attention: Xxxxx Xxxxxxx; with a copy
addressed to: Alchemy Communications, Inc., 0000 Xxxx 0xx
Xxxxxx,
Xxxxx X0-000, Xxx Xxxxxxx, XX 00000, attention: Xxxx Xxxxxxxx. If intended
for
Customer, shall be addressed: 0000 Xxxxxx Xxx, 00xx
Xxxxx,
X.X. XX 00000 , attention: _____________________. Any party hereto, by written
notice to the other party, may change the address for notices to be sent to
them.
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Xxxx
Alsaberry
4/29/05
Alchemy
Signature
Date
Xxxx
Alsaberry
Alchemy
Name (printed)
CEO
Alchemy
Title
Alchemy
Communications, Inc.
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Xxxxx
Xxxx
4/27/05
Customer
Signature
Date
Xxxxx
Xxxx
Customer
Name (printed)
President
Customer
Title
Accessmedia
Networks, Inc.
Company
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13
