EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
THIS INTERNET DATA CENTER SERVICES AGREEMENT (this "AGREEMENT") is made
effective as of the Submission Date (April 10, 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: XxxxxXxxx.xxx, Inc.
ADDRESS: 0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
PHONE: 000-000-0000
FAX: 000-000-0000
Exodus Communications, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
PHONE: (000) 000-0000
FAX: (000) 000-0000
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 Data 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.
EXODUS COMMUNICATIONS, INC. CONFIDENTIAL AND PROPRIETARY (REV 6/98) PAGE 1
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 DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW
DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR
CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE
THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH EXODUS' CUSTOMER' 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
PAGE 2
8.1 TERM. This Agreement will be effective for a period of one (1) year
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 first (1st) anniversary of 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 liable 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 notice 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 COMMUNICATIONS, INC.
Signature: /s/ Xxxxxxxx X. Xxxxxx Signature:
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Print Name: Xxxxxxxx X. Xxxxxx Print Name:
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Title: Chairman & CEO Title:
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