EXHIBIT 10.16
EXODUS COMMUNICATIONS, INC.
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "AGREEMENT") between Exodus
Communications, Inc. ("EXODUS") and NEXT BIG STAR, LLC ("CUSTOMER") is made
effective as of date indicated below the Customer signature on the initial Order
Form submitted by Customer and accepted by Exodus.
1. OVERVIEW.
1.1 GENERAL. This Agreement states the terms and conditions by which Exodus
will deliver and Customer will receive any or all of the services provided by
Exodus, including facilities, bandwidth, managed services and professional
services. If Customer purchases any equipment from Exodus (as indicated in the
Order Form(s) described below), the terms and conditions by which Customer
purchases and Exodus sells such equipment are stated in Addendum A attached
hereto. Only this Section 1.1 and Addendum A shall apply to the purchase and
sale of equipment. The specific services and/or products to be provided
hereunder are identified in the Order Form(s) submitted by Customer and accepted
by Exodus and described in detail in the Specification Sheets and Statements of
Work attached to each Order Form. Each Order Form (with the attached
Specification Sheet(s) and Statement(s) of Work) submitted, accepted and
executed by both parties is hereby incorporated by reference into this
Agreement. This Agreement is intended to cover any and all Services ordered by
Customer and provided by Exodus. In the event that any terms set forth herein
apply specifically to a service not ordered by Customer, such terms shall not
apply to Customer.
1.2 DEFINITIONS.
(a) "Customer Area" means that portion(s) of the Internet Data
Center(s) made available to Customer for the placement of Customer
Equipment and/or Exodus Supplied Equipment and use of the Service(s).
(b) "Customer Equipment" means the Customer's computer hardware, not
including stored data, and other tangible equipment placed by Customer in
the Customer Area. The Customer Equipment shall be identified on Exodus'
standard customer equipment list completed and delivered by Customer to
Exodus, as amended in writing from time to time by Customer.
(c) "Customer Registration Form" means the list that contains the
names and contact information (e.g. pager, email and telephone numbers) of
Customer and the individuals authorized by Customer to enter the Internet
Data Center(s) and Customer Area, as delivered by Customer to Exodus and
amended in writing from time to time by Customer.
(d) "Customer Technology" means Customer's proprietary technology,
including Customer's internet operations design, content, software tools,
hardware designs, algorithms,
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software (in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both printed and
electronic), know-how, trade secrets and any related intellectual property
rights throughout the world (whether owned by Customer or licensed to
Customer from a third party) and also including any derivatives,
improvements, enhancements or extensions of Customer Technology conceived,
reduced to practice, or developed during the term of this Agreement by
Customer.
(e) "Exodus Supplied Equipment" means the computer hardware, software
and other tangible equipment and intangible computer code contained therein
to be provided by Exodus for use by Customer as set forth on the Order
Form(s).
(f) "Exodus Technology" means Exodus' proprietary technology,
including Exodus Services, software tools, hardware designs, algorithms,
software (in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both printed and
electronic), network designs, know-how, trade secrets and any related
intellectual property rights throughout the world (whether owned by Exodus
or licensed to Exodus from a third party) and also including any
derivatives, improvements, enhancements or extensions of Exodus Technology
conceived, reduced to practice, or developed during the term of this
Agreement by either party that are not uniquely applicable to Customer or
that have general applicability in the art.
(g) "Initial Term" means the minimum term for which Exodus will
provide the Service(s) to Customer, as indicated on the Order Form(s).
Except as otherwise expressly provided in this Agreement, Exodus is
obligated to provide and Customer is obligated to pay for each Service
through its Initial Term and any Renewal Term.
(h) "Internet Data Center(s)" means any of the facilities used by
Exodus to provide the Service(s).
(i) "Professional Services" means any non-standard professional or
consulting service provided by Exodus to Customer as more fully described
in a Statement of Work.
(j) "Renewal Term" means any service term following the Initial Term,
as specified in Section 2.2.
(k) "Representatives" mean the individuals identified in writing on
the Customer Registration Form and authorized by Customer to enter the
Internet Data Center(s) and the Customer Area.
(l) "Rules and Regulations" means the Exodus general rules and
regulations governing Customer's use of Services, including, but not
limited to, online conduct, and the obligations of Customer and its
Representatives in the Internet Data Centers.
(m) "Service(s)" means the specific service(s) provided by Exodus as
described on the Order Form(s).
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(n) "Service Commencement Date" means the date Exodus will begin
providing the Service(s) to Customer, as indicated in a Notice of Service
Commencement delivered by Exodus to Customer.
(o) "Service Level Warranty" is described and defined in Section 5.2
below.
(p) "Specification Sheet" means the detailed description for each
Service, other than Professional Services, ordered by Customer that is
attached to an Order Form(s).
(q) "Statement of Work" means the detailed description(s) of the
Professional Services attached to (an) Order Form(s).
(r) "Work" means any tangible deliverable provided by Exodus to
Customer as described in the Statement of Work for any Professional
Service.
2. DELIVERY OF SERVICES; TERMS; FEES.
2.1 DELIVERY OF SERVICES.
(a) GENERAL. By submitting an Order Form, Customer agrees to take and
pay for, and, by accepting the Order Form, Exodus agrees to provide, the
Service(s) during the Initial Term and for any Renewal Term, as specified
in paragraph 2.2(b) below.
(b) DELIVERY OF SUPPLEMENTAL SERVICES. The purpose of this provision
is to enable Exodus to provide Customer with certain limited services and
equipment needed by Customer on a "one-off" or emergency basis
("Supplemental Services") where such services are not included within the
scope of the Services as described in the Specification Sheets and/or
Statement of Work. Supplemental Service may include, as an example, a
request from Customer to Exodus via telephone that Exodus immediately
replace a problem Customer server with an Exodus server for a temporary
period of time. Exodus shall notify Customer of the fees for any
Supplemental Services requested by Customer and obtain Customer's approval
prior to providing such services. In the event Exodus reasonably determines
that Supplemental Services are required on an emergency basis, Exodus may
provide such services without the consent of Customer, thereafter provide
notice of the services to Customer and ▇▇▇▇ Customer a reasonable fee for
such services. Customer agrees to pay Exodus the fees charged by Exodus for
Supplemental Services. Customer will be charged for Supplemental Services
in the invoice issued the month following delivery of the services. Exodus
will use commercially reasonable efforts to provide Supplemental Services,
provided that Exodus has no obligation to determine the need for or provide
Supplemental Services. All Supplemental Services provided pursuant to this
paragraph 2.1(b) are provided on an "as-is" basis and exclude warranties of
any kind, whether express or implied.
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2.2 TERM.
(a) TERM COMMENCEMENT. The term for each Service will commence on the
Service Commencement Date indicated in the Notice of Service Commencement
delivered by Exodus to Customer when Exodus begins providing each Service
to Customer.
(b) RENEWAL TERM(S). Each Service will continue automatically for
additional terms equal to the Initial Term ("Renewal Term") unless Customer
notifies Exodus in writing at least thirty (30) days prior to the end of
the Initial Term or a Renewal Term, as applicable, that it has elected to
terminate such Service, in which case such Service shall terminate at the
end of such term. The termination of any Service will not affect Customer's
obligations to pay for other Service(s). Notwithstanding the foregoing,
Exodus may change or increase the prices it charges Customer for any
Service at any time after the Initial Term effective thirty (30) days after
providing notice to Customer. This paragraph 2.2(b) does not apply to
Exodus Supplied Equipment which is only provided for the Initial Term.
3. FEES AND PAYMENT TERMS.
3.1 FEES AND EXPENSES. Customer will pay all fees due according to the
prices and terms listed in the Order Form(s). The prices listed in the Order
Form(s) will remain in effect during the Initial Term indicated in the Order
Form(s) and will continue thereafter, unless modified in accordance with Section
2.2. Customer also agrees to reimburse Exodus for actual out-of-pocket
reasonable expenses incurred in providing Professional Services to Customer.
3.2 PAYMENT TERMS. On the Service Commencement Date for each Service,
Customer will be billed an amount equal to all non-recurring charges indicated
in the Order Form and the monthly recurring charges for the first month of the
term. Monthly recurring charges for all other months will be billed in advance
of the provision of Services. All other charges for Services received and
expenses incurred for Professional Services during a month (e.g., bandwidth
usage fees, travel expenses) will be billed at the end of the month in which the
Services were provided. Payment for all fees is due upon receipt of each Exodus
invoice. All payments will be made in the United States in U.S. dollars.
3.3 LATE PAYMENTS. Any payment not received within thirty (30) days of the
invoice date 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
Customer is delinquent in its payments, Exodus may, upon written notice to
Customer, modify the payment terms to require full payment before the provision
of all Services and Exodus Supplied Equipment or require other assurances to
secure Customer's payment obligations hereunder.
3.4 TAXES. All fees charged by Exodus for Services are exclusive of all
taxes and similar fees now in force or enacted in the future imposed on the
transaction and/or the delivery of Services, all of which Customer will be
responsible for and will pay in full, except for taxes based on Exodus' net
income.
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4. confidential information; intellectual property ownership; license grants
4.1 CONFIDENTIAL INFORMATION.
(a) NONDISCLOSURE OF 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, and other information held in confidence by the other party
("CONFIDENTIAL INFORMATION"). Confidential Information will include all
information in tangible or intangible form that is marked or designated as
confidential or that, under the circumstances of its disclosure, should be
considered confidential. Confidential Information will also include, but
not be limited to, Exodus Technology, Customer Technology, and the terms
and conditions of this Agreement. 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, or required to achieve the purposes of, 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,
at least as stringent as it takes to protect its own Confidential
Information.
(b) 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.
The receiving party may disclose Confidential Information pursuant to the
requirements of a governmental agency or by operation of law, provided that
it gives the disclosing party reasonable prior written notice sufficient to
permit the disclosing party to contest such disclosure.
4.2 INTELLECTUAL PROPERTY.
(a) OWNERSHIP. Except for the rights expressly granted herein and the
assignment expressly made in paragraph 4.4(a), this Agreement does not
transfer from Exodus to Customer any Exodus Technology, and all right,
title and interest in and to Exodus Technology will remain solely with
Exodus. Except for the rights expressly granted herein, this Agreement does
not transfer from Customer to Exodus any Customer Technology, and all
right, title and interest in and to Customer Technology will remain solely
with Customer. Exodus and Customer each agrees that it will not, directly
or indirectly, reverse engineer, decompile, disassemble or otherwise
attempt to derive source code or other trade secrets from the other party.
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(b) GENERAL SKILLS AND KNOWLEDGE. Notwithstanding anything to the
contrary in this Agreement, Exodus will not be prohibited or enjoined at
any time by Customer from utilizing any skills or knowledge of a general
nature acquired during the course of providing the Services, including,
without limitation, information publicly known or available or that could
reasonably be acquired in similar work performed for another customer of
Exodus.
4.3 LICENSE GRANTS.
(a) BY EXODUS. Exodus hereby grants to Client a nonexclusive,
royalty-free license, during the term of this Agreement, to use the Exodus
Technology solely for purposes of using the Service(s). Customer shall have
no right to use the Exodus Technology for any purpose other than using the
Service(s).
(b) BY CUSTOMER. Customer agrees that if, in the course of performing
the Service(s), it is necessary for Exodus to access Customer Equipment and
use Customer Technology, Exodus is hereby granted and shall have a
nonexclusive, royalty-free license, during the term of this Agreement, to
use the Customer Technology solely for the purposes of delivering the
Service(s) to Customer. Exodus shall have no right to use the Customer
Technology for any purpose other than providing the Service(s).
4.4 PROFESSIONAL SERVICES; ASSIGNMENTS AND LICENSE.
(a) ASSIGNMENT OF WORK. Effective at the time Exodus receives full and
final payment for the Professional Service, Exodus assigns to Customer all
right, title and interest, including all intellectual property rights, in
the Work, provided, however, that such assignment does not include the
Exodus Technology.
(b) LICENSE GRANT. Commencing at the time Exodus receives full and
final payment for the Work, Exodus grants to Customer a non-exclusive,
non-transferable, royalty free, perpetual license to use the Exodus
Technology incorporated into the Work solely in connection with the use of
the Work as a whole. To the extent that Customer or its employees or
contractors participate in the creation or development of Exodus
Technology, Customer, on behalf of itself and its employees and
contractors, hereby assigns to Exodus all right, title and interest,
including all intellectual property rights in, the Exodus Technology.
5. EXODUS REPRESENTATIONS AND WARRANTIES.
5.1 GENERAL.
(a) AUTHORITY AND PERFORMANCE OF EXODUS. Exodus represents and
warrants that (i) it has the legal right to enter into this Agreement and
perform its obligations hereunder, and (ii) the performance of its
obligations and delivery of the Services to Customer will not violate any
applicable U.S. laws or regulations, including OSHA requirements, or cause
a breach of any agreements with any third parties. In the event of a breach
of the warranties set
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forth in this paragraph 5.1(a), Customer's sole remedy is termination
pursuant to Section 10 of the Agreement.
(b) YEAR 2000 PERFORMANCE COMPLIANCE. Exodus warrants that none of the
computer hardware and software systems and equipment incorporated into or
utilized in the delivery of the Services contains any date dependent
routines or logic which will fail to operate correctly after December 31,
1999, by reason of such date dependence; provided, however, that no
representation or warranty is made as to the adequacy of any Customer or
third party service provider hardware or software used in connection with
the Services. In the event of any breach of the warranties under this
paragraph 5.1(b), Customer's sole remedy is termination pursuant to Section
10 of the Agreement.
5.2 SERVICE LEVEL WARRANTY. In the event that Customer experiences any of
the service performance issues defined in this Section 5.2 as a result of
Exodus' failure to provide bandwidth or facility services, Exodus will, upon
Customer's request in accordance with paragraph 5.2(d) below, credit Customer's
account as described below (the "Service ▇▇▇▇▇ ▇▇▇▇▇▇▇▇"). ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall not apply to any services other than bandwidth and facility
services, and, shall not apply to performance issues (i) caused by factors
outside of Exodus' reasonable control; (ii) that resulted from any actions or
inactions of Customer or any third parties; or (iii) that resulted from
Customer's equipment and/or third party equipment (not within the sole control
of Exodus).
(a) SERVICE WARRANTY DEFINITIONS. For purposes of this Agreement, the
following definitions shall apply only to the Services (not including
Professional Services).
(i) "Downtime" shall mean sustained packet loss in excess of fifty
percent (50%) within Exodus' U.S. network for fifteen (15) consecutive minutes
due to the failure of Exodus to provide Service(s) for such period. Downtime
shall not include any packet loss or network unavailability during Exodus'
scheduled maintenance of the Internet Data Centers, network and Service(s), as
described in the Rules and Regulation.
(ii) "Excess Latency" shall mean transmission latency in excess of one
hundred twenty (120) milliseconds round trip time between any points within
Exodus' U.S. network.
(iii) "Excess Packet Loss" shall mean packet loss in excess of one
percent (1%) between any two points within Exodus' U.S. network.
(iv) "Performance Problem" shall mean Excess Packet Loss and/or Excess
Latency.
(v) "Service Credit" shall mean an amount equal to the pro-rata
monthly recurring connectivity charges (i.e., all monthly recurring
bandwidth-related charges) for one (1) day of Service.
(b) DOWNTIME PERIODS. In the event Customer experiences Downtime,
Customer shall be eligible to receive from Exodus a Service Credit for each
Downtime period. Examples:
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If Customer experiences one Downtime period, it shall be eligible to
receive one Service Credit. If Customer experiences two Downtime periods,
either from a single event or multiple events, it shall be eligible to
receive two Service Credits.
(c) PERFORMANCE PROBLEM; PACKET LOSS AND LATENCY. In the event that
Exodus discovers or is notified by Customer that Customer is experiencing a
Performance Problem, Exodus will take all actions necessary to determine
the source of the Performance Problem.
(i) TIME TO DISCOVER SOURCE OF PERFORMANCE PROBLEM; NOTIFICATION OF
CUSTOMER. Within two (2) hours of discovering or receiving notice of the
Performance Problem, Exodus will determine whether the source of the Performance
Problem is limited to the Customer Equipment and the Exodus equipment connecting
the Customer Equipment to the Exodus LAN. If Exodus determines that the Customer
Equipment and Exodus connection are not the source of the Performance Problem,
Exodus will determine the source of the Performance Problem within an additional
two (2) hour period. In any event, Exodus will notify Customer of the source of
the Performance Problem within sixty (60) minutes of identifying the source.
(ii) REMEDY OF PACKET LOSS AND LATENCY. If the source of the
Performance Problem is within the sole control of Exodus, Exodus will remedy the
Performance Problem within two (2) hours of determining the source of the
Performance Problem. If the source of and remedy to the Performance Problem
reside outside of the Exodus LAN or WAN, Exodus will use commercially reasonably
efforts to notify the party(ies) responsible for the source of the Performance
Problem and cooperate with it (them) to resolve such problem as soon as
possible.
(iii) FAILURE TO DETERMINE SOURCE AND/OR REMEDY. In the event that
Exodus (A) is unable to determine the source of the Performance Problem within
the time periods described in subsection (i) above and/or (B) Exodus is the sole
source of the Performance Problem and is unable to remedy such Performance
Problem within the time period described in subsection (ii) above, Exodus will
deliver a Service Credit to Customer for each two (2) hour period in excess of
the time periods for identification and resolution described above.
(d) CUSTOMER MUST REQUEST SERVICE CREDIT. In order to receive any of
the Service Credits described in this Section 5.2, Customer must notify
Exodus within seven (7) days from the time Customer becomes eligible to
receive a Service Credit. Failure to comply with this requirement will
forfeit Customer's right to receive a Service Credit.
(e) REMEDIES SHALL NOT BE CUMULATIVE; MAXIMUM SERVICE CREDIT. The
aggregate maximum number of Service Credits to be issued by Exodus to
Customer for any and all Downtime periods and Performance Problems that
occur in a single calendar month shall not exceed seven (7) Service
Credits. A Service Credit shall be issued in the Exodus invoice in the
month following the Downtime or Performance Problem, unless the Service
Credit is due in Customer's final month of Service. In such case, a refund
for the dollar value of the Service Credit will be mailed to Customer.
Customer shall also be eligible to receive a pro-rata refund for (i)
Downtime periods and Performance Problems for which Customer does not
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receive a Service Credit and (ii) any Services Exodus does not deliver to
Customer for which Customer has paid.
(f) TERMINATION OPTION FOR CHRONIC PROBLEMS. Customer may terminate
this Agreement for cause and without penalty by notifying Exodus within
five (5) days following the end of a calendar month in the event either of
the following occurs: (i) Customer experiences more than fifteen (15)
Downtime periods resulting from three (3) or more nonconsecutive Downtime
events during the calendar month; or (ii) Customer experiences more than
eight (8) consecutive hours of Downtime due to any single event. Such
termination will be effective thirty (30) days after receipt of such notice
by Exodus.
(g) THE SERVICE LEVEL WARRANTY SET FORTH IN THIS SECTION 5.2 SHALL
ONLY APPLY TO THE BANDWIDTH AND FACILITIES SERVICE(S) PROVIDED BY EXODUS
AND DOES NOT APPLY TO (I) ANY PROFESSIONAL SERVIES; (II) ANY SUPPLEMENTAL
SERVICES; AND (III) ANY SERVICE(S) THAT EXPRESSLY EXCLUDE THIS SERVICE
LEVEL WARRANTY (AS STATED IN THE SPECIFICATION SHEETS FOR SUCH SERVICES).
THIS SECTION 5.2 STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY
FAILURE BY EXODUS TO PROVIDE SERVICE(S).
5.3 SERVICE PERFORMANCE WARRANTY. Exodus warrants that it will perform the
Services in a manner consistent with industry standards reasonably applicable to
the performance thereof.
5.4 SELECTION OF EXODUS SUPPLIED EQUIPMENT; MANUFACTURER WARRANTY. Customer
acknowledges that it has selected the Exodus Supplied Equipment and disclaims
any statements made by Exodus. Except with respect to any express warranties for
Service(s) related to Exodus Supplied Equipment, Customer acknowledges and
agrees that its use and possession of the Exodus Supplied Equipment by Customer
shall be subject to and controlled by the terms of any manufacturer's or, if
appropriate, supplier's warranty, and Customer agrees to look solely to the
manufacturer or, if appropriate, supplier with respect to all mechanical,
service and other claims, and the right to enforce all warranties made by said
manufacturer are hereby, to the extent Exodus has the right, assigned to
Customer solely for the Initial Term.
5.5 NO OTHER WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS
SECTION 5, THE SERVICES ARE PROVIDEED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF
THE 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 SERVICES WILL BE UNINTERRUPTED,
ERROR-FREE, OR COMPLETELY SECURE.
5.6 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'
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NETWORK 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 OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT
CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH EXODUS
WILL USE COMMERCIALY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE
TO REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT SUCH EVENTS WILL
NOT OCCUR. ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR
RELATED TO SUCH EVENTS.
6. CUSTOMER OBLIGATIONS.
6.1 WARRANTIES OF CUSTOMER.
(a) GENERAL. Customer represents and warrants that (i) it 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
any Customer Equipment as contemplated under this Agreement; (ii) the
performance of its obligations and use of the Services (by Customer, its
customers and users) will not violate any applicable laws, regulations or
the Rules and Regulations or cause a breach of any agreements with any
third parties or unreasonably interfere with other Exodus customers' use of
Exodus services, and (iii) all equipment, materials and other tangible
items placed by Customer at Internet Data Centers will be used in
compliance with all applicable manufacturer specifications.
(b) BREACH OF WARRANTIES. In the event of any breach of any of the
foregoing warranties, in addition to any other remedies available at law or
in equity, Exodus will have the right, in its sole reasonable discretion,
to suspend immediately any related Services if deemed reasonably necessary
by Exodus to prevent any harm to Exodus and its business. Exodus will
provide notice and opportunity to cure if practicable depending on the
nature of the breach. Once cured, Exodus will promptly restore the
Service(s).
6.2 COMPLIANCE WITH LAW AND RULES AND REGULATIONS. Customer agrees that it
will use the Service(s) only for lawful purposes and in accordance with this
Agreement. Customer will comply at all times with all applicable laws and
regulations and the Rules and Regulations, as updated by Exodus from time to
time. The Rules and Regulations are incorporated herein and made a part hereof
by this reference. Exodus may change the Rules and Regulations upon fifteen(15)
days' notice to Customer, which notice may be provided by posting such new Rules
and Regulations at the Exodus Web site ▇▇▇.▇▇▇▇▇▇.▇▇▇. Customer agrees that it
has received, read and understands the current version of the Rules and
Regulations. The Rules and Regulations contain restrictions on Customer's and
Customer's users' online conduct (including prohibitions against unsolicited
commercial email) and contain financial penalties for violations of such
restrictions. Customer agrees to comply with such restrictions and, in the event
of a failure to comply, Customer agrees to pay the financial penalties in
accordance with the Rules and Regulations. Customer acknowledges that Exodus
exercises no control whatsoever over the content of the information passing
through Customer's site(s) and that it
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is the sole responsibility of Customer to ensure that the information it and its
users transmit and receive complies with all applicable laws and regulations and
the Rules and Regulations.
6.3 ACCESS AND SECURITY. Except with the advanced written consent of
Exodus, Customer's access to the Internet Data Centers will be limited solely to
the Representatives. Representatives may only access the Customer Area and are
prohibited from accessing other areas of the Internet Data Center(s) unless
accompanied by an authorized Exodus representative.
6.4 RESTRICTIONS ON USE OF SERVICES. Customer shall not, without the prior
written consent of Exodus (which may be withheld in its sole discretion), resell
the Services to any third parties or connect Customer Equipment directly to
anything other than the Exodus network, equipment and facilities.
6.5 RELOCATION OF CUSTOMER EQUIPMENT. In the event that it becomes
necessary to relocate the Customer Equipment to another Customer Area or
Internet Data Center operated by Exodus, Customer will cooperate in good faith
with Exodus to facilitate such relocation, provided that such relocation is
based on reasonable business needs of Exodus (including the needs of other
Exodus customers), the expansion of the space requirements of Customer or
otherwise. Exodus shall be solely responsible for any costs and expenses
incurred by Exodus in connection with any such relocation and will use
commercially reasonable efforts, in cooperation with Customer, to minimize and
avoid any interruption to the Services.
6.6 EXODUS SUPPLIED EQUIPMENT.
(a) DELIVERY AND TERM. On or prior to the Service Commencement
Date, Exodus shall deliver to Customer, at the designated Customer
Area, the Exodus Supplied Equipment. Customer shall have the right to
use the Exodus Supplied Equipment for the Initial Term set forth in
the Order Form and any additional period agreed to in writing by
Exodus. Customer shall not remove any Exodus Supplied Equipment from
the Customer Area(s) without the prior written consent of Exodus.
(b) TITLE. The Exodus Supplied Equipment shall always remain the
personal property of Exodus. Customer shall have no right or interest
in or to the Exodus Supplied Equipment except as provided in this
Agreement and the applicable Order Form and shall hold the Exodus
Supplied Equipment subject and subordinate to the rights of Exodus.
Customer agrees to execute UCC financing statements as and when
requested by Exodus and hereby appoints Exodus as its attorney-in-fact
to execute such financing statements on behalf of Customer. Customer
will, at its own expense, keep the Exodus Supplied Equipment free and
clear from any liens or encumbrances of any kind (except any caused by
Exodus) and will indemnify and hold Exodus harmless from and against
any loss or expense caused by Customer's failure to do so. Customer
shall give Exodus immediate written notice of any amendment or
judicial process affecting the Exodus Supplied Equipment or Exodus'
ownership. Customer will not remove, alter or destroy any labels on
the Exodus Supplied Equipment stating that it is the property of
Exodus and shall allow the inspection of the Exodus Supplied Equipment
at any time.
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(c) USE, MAINTENANCE AND REPAIR. Customer will, at its own
expenses, keep the Exodus Supplied Equipment in good repair,
appearance and condition, other than normal wear and tear, and, if not
included in the Services, shall obtain, pay for and keep in effect
through the Initial Term a hardware and software maintenance agreement
with the manufacturer or other party acceptable to Exodus. All parts
furnished in connection with such repair and maintenance shall be
manufacturer authorized parts and shall immediately become components
of the Exodus Supplied Equipment and the property of Exodus. Customer
shall use the Exodus Supplied Equipment in compliance with the
manufacturer's or supplier's suggested guidelines.
(d) UPGRADES AND ADDITIONS. Customer may affix or install any
accessory, addition, upgrade, equipment or device on to the Exodus
Supplied Equipment (other than electronic data) ("Additions") provided
that such Additions (i) can be removed without causing material damage
to the Exodus Supplied Equipment; (ii) do not reduce the value of the
Exodus Supplied Equipment and (iii) are obtained from or approved in
writing by Exodus and are not subject to the interest of any third
party other than Exodus. Any other Additions may not be installed
without Exodus' prior written consent. At the end of the Initial Term,
Customer shall remove any Additions which (i) were not provided by
Exodus and (ii) are readily removable without causing material damage
or impairment of the intended function, use, or value of the Exodus
Supplied Equipment, and restore the Exodus Supplied Equipment to its
original configuration. Any Additions, which are not so removable,
will become the property of Exodus (lien free).
7. INSURANCE.
7.1 EXODUS MINIMUM LEVELS. Exodus agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers' compensation insurance in an amount not less
than that required by applicable law. Exodus agrees that it will ensure and be
solely responsible for ensuring that its contractors and subcontractors maintain
insurance coverage at levels no less than those required by applicable law and
customarily in Exodus' and its agents' industries.
7.2 CUSTOMER MINIMUM LEVELS. In order to provide customers with physical
access to facilities operated by Exodus and equipment owned by third parties,
Exodus is required by its insurers to ensure that each Exodus customer maintains
adequate insurance coverage. Customer agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers' compensation insurance in an amount not less
than that required by applicable law. Customer agrees that it will ensure and be
solely responsible for ensuring that its agents (including contractors and
subcontractors) maintain insurance coverage at levels no less than those
required by applicable law and customary in Customer's and its agents'
industries.
7.3 CERTIFICATE OF INSURANCE; NAMING EXODUS AS AN ADDITIONAL INSURED. Prior
to installation of any Customer Equipment in the Customer Area, Customer will
(i) deliver to Exodus certificates
-13-
of insurance which evidence the minimum levels of insurance set forth above; and
(ii) cause its insurance provider(s) to name Exodus as an additional insured and
notify Exodus in writing of the effective date thereof.
8. LIMITATIONS OF LIABILITY.
8.1 PERSONAL INJURY. EACH REPRESENTATIVE AND ANY OTHER PERSON VISITING AN
INTERNET DATA CENTER DOES SO AT ITS OWN RISK. EXODUS ASSUMES NO LIABILITY
WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF EXODUS.
8.2 DAMAGE TO CUSTOMER EQUIPMENT. EXODUS ASSUMES NO LIABILITY FOR ANY
DAMAGE TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER
THAN THE NEGLIGENCE OR WILLFUL MISCONDUCT OF EXODUS. TO THE EXTENT EXODUS IS
LIABLE FOR ANY DAMAGE TO, OR LOSS OF CUSTOMER EQUIPMENT FOR ANY REASON, SUCH
LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT REPLACEMENT VALUE OF THE
CUSTOMER EQUIPMENT, EXCLUDING LOST DATA, SOFTWARE AND FIRMWARE.
8.3 CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR A BREACH OF SECTION 4.1
("CONFIDENTIAL INFORMATION") OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE
LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE,
LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF
DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT
(INCUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
8.4 BASIS OF THE BARGAIN; FAILURE OF ESSENTIAL PURPOSE. The parties
acknowledge 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.
9. INDEMNIFICATION.
9.1 INDEMNIFICATION. Each party will indemnify, defend and hold the other
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 by any third party against the other or its affiliates
alleging (i) the infringement or misappropriation of any intellectual property
right relating to the delivery or use of the Service(s) (but excluding any
infringement contributorily caused by the other party); (ii) personal injury
caused by the negligence or willful misconduct of the other party; and (iii) any
violation of or failure to comply
-14-
with the Rules and Regulations. Customer will indemnify, defend and hold Exodus,
its affiliates or customers alleging any damage or destruction to the Customer
Area, the Internet Data Centers, Exodus equipment or other customer equipment
caused by Customer, its Representative(s) or designees.
9.2 NOTICE. Each party's indemnification obligations hereunder shall be
subject to (i) receiving prompt written notice of the existence of any Action;
(ii) being able to, at its option, control the defense of such Action; (iii)
permitting the indemnified party to participate in the defense of any Action;
and (iv) receiving full cooperation of the indemnified party in the defense
thereof.
10. TERMINATION.
10.1 TERMINATION FOR CAUSE. Either party may 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. Customer may also terminate this Agreement in
accordance with the terms set forth in paragraph 5.2(f) ("Termination Option For
Chronic Problems") of this Agreement.
10.2 NO LIABILITY FOR TERMINATION. Neither party will be liable to the
other for any termination or expiration of any Service or this Agreement in
accordance with its terms.
10.3 EFFECT OF TERMINATION. Upon the effective date of termination of this
Agreement:
(a) Exodus will immediately cease providing the Service(s);
(b) any and all payment obligations of Customer under this Agreement
for Service(s) provided through the date of termination will immediately
become due;
(c) within thirty (30) days of such termination, each party will
return all Confidential Information of the other party in its possession
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) within five (5) days of such termination Customer shall (i) remove
from the Internet Data Centers all Customer Equipment (excluding any Exodus
Supplied Equipment) and any other Customer property; (ii) deliver or make
available all Exodus Supplied Equipment to an authorized representative of
Exodus, and (iii) return the Customer Area to Exodus in the same condition
as it was on the Service Commencement Date for the Customer Area, normal
wear and tear excepted. If Customer does not remove the Customer Equipment
and its other property within such five-day period. Exodus will have the
option to (i) move any and
-15-
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.
10.4 SURVIVAL. The following provisions will survive any expiration or
termination of the Agreement: Sections 3, 4.1, 4.2, 4.4, 5.5, 6.6(d), 8, 9,
10 and 11 (excluding 11.2).
11. MISCELLANEOUS PROVISIONS.
11.1 FORCE MAJEURE. Except for the obligation to make payments, 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 acts of war,
acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act or failure of the Internet (not resulting from the
actions or inactions of Exodus), provided that the delayed party: (a) gives the
other party prompt notice of such cause, and (b) uses its reasonable commercial
efforts to promptly correct such failure or delay in performance. If Exodus is
unable to provide Service(s) for a period of thirty (30) consecutive days as a
result of a continuing force majeure event, Customer may cancel the Service(s).
11.2 NO LEASE; AGREEMENT SUBORDINATE TO MASTER LEASE. This Agreement is a
services agreement and is not intended to and will not constitute a lease of any
real property. Customer acknowledges and agrees that (i) it has been granted
only a license to occupy the Customer Area 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 Area or
Internet Data Centers; (iii) Customer has no rights as a tenant or otherwise
under any real property or landlord/tenant laws, regulations, or ordinances;
(iv) this Agreement, to the extent it involves the use of space leased by
Exodus, shall be subordinate to any lease between Exodus and its landlord(s);
and (v) the expiration or termination of any such lease shall terminate this
Agreement as to such property subject to Customer retaining any rights or claims
it may have against Exodus arising from the expiration or termination of such
lease. Customer hereby waives and releases any claims or rights to make a claim
that it may have against the landlord(s) under any lease by Exodus with respect
to any equipment or property of Customers' located in the premises demised to
Exodus by such landlord(s).
11.3 MARKETING. Customer agrees that during the term of this Agreement
Exodus may publicly refer to Customer, orally and in writing, as a Customer of
Exodus. Any other reference to Customer by Exodus requires the written consent
of Customer.
11.4 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.
11.5 NON-SOLICITATION. During the Term of this Agreement and continuing
through the first anniversary of the termination of this Agreement, 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 or contracted by Exodus to provide Services to Customer.
-16-
11.6 NO THIRD PARTY BENEFICIARIES. Exodus and Customer agree that, except
as otherwise expressly provided in this Agreement, there shall be no third party
beneficiaries to this Agreement, including but not limited to the insurance
providers for either party or the customers of Customer.
11.7 GOVERNING LAW; DISPUTE RESOLUTION. 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. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences, or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim, or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, shall finally be settled by arbitration in accordance with the
Arbitration Rules (and if Customer is a non-U.S. entity, the International
Arbitration Rules) of the American Arbitration Association ("AAA"). There will
be three (3) arbitrators (the "Arbitration Tribunal"), the first of which will
be appointed by the claimant in its notice of arbitration, the second of which
will be appointed by the respondent within thirty (30) days of the appointment
of the first arbitrator and the third of which will be jointly appointed by the
party-appointed arbitrators within thirty (30) days thereafter. The language of
the arbitration shall be English. The Arbitration Tribunal will not have the
authority to award punitive damages to either party. Each party shall bear its
own expenses, but the parties will share equally the expenses of the Arbitration
Tribunal and the AAA. This Agreement will be enforceable, and any arbitration
award will be, final, and judgment thereon may be entered in any court of
competent jurisdiction. The arbitration will be held in San Francisco,
California, USA. Notwithstanding the foregoing, claims for preliminary
injunctive relief, other pre-judgment remedies, and claims for Customer's
failure to pay for Services in accordance with this Agreement may be brought in
a state or federal court in the United States with jurisdiction over the subject
matter and parties.
11.8 SEVERABILITY; WAIVER. 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 negotiate the
rights of the waiving party.
11.9 ASSIGNMENT. Customer may assign this Agreement in whole as part of a
corporate reorganization, consolidation, merger, or sale of substantially all of
its users. Customer may not otherwise assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of Exodus, and any attempted assignment or delegation without such
consent will be void. Exodus may assign this Agreement in whole or part. Exodus
also may delegate the performance of certain Services to third parties,
including Exodus' wholly owned subsidiaries, provided Exodus controls the
delivery of such Services to Customer and remains responsible to Customer for
the delivery of such Services. This Agreement will bind and inure to the benefit
of each party's successors and permitted assigns.
11.10 NOTICE. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by
email, confirmed facsimile, or
-17-
mailed by registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party as listed on the
Order Form or at such other address as may hereafter be furnished in writing by
either party to the other party. Such notice will be deemed to have been given
as of the date it is delivered, mailed, emailed, faxed or sent, whichever is
earlier.
11.11 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.
11.12 ENTIRE AGREEMENT; COUNTERPARTS; ORIGINALS. 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. Any additional or different terms in any purchase
order or other response by Customer shall be deemed objected to by Exodus
without need of further notice of objection, and shall be of no effect or in any
way binding upon Exodus. 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. Once signed, any
reproduction of this Agreement made by reliable means (e.g., photocopy,
facsimile) is considered an original. This Agreement may be changed only by a
written document signed by authorized representatives of Exodus and Customer in
accordance with this Section 11.12. For purposes of this Agreement, the term
"written" means anything reduced to a tangible form by a party, including a
printed or hand written document, e-mail or other electronic format.
11.13 INTERPRETATION ON CONFLICTING TERNS. In the event of a conflict
between or among the terms in this Agreement, the Order Form(s), the
Specification Sheet(s), the Statement(s) of Work, and any other documents made a
part hereof, the documents shall control in the following order, the Order Form
with the latest date, the Statement of Work, Specification Sheets, the Agreement
and other documents.
-18-
Authorized representatives of Customer and Exodus 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: Signature:
----------------------- ----------------------
Print Name: Print Name:
----------------------- ----------------------
Title: Title:
----------------------- ----------------------
Date: 1/14/2000 Date:
----------------------- ----------------------
This Agreement incorporates the following documents:
o Order Form(s)
Specification Sheet(s)
Statement(s) of Work (if applicable)
o Registration Form
o Addendum A - Equipment Purchase Terms and Conditions (if applicable)
ADDENDUM A
EQUIPMENT PURCHASE TERMS AND CONDITIONS
1. SHIPPING AND HANDLING. All equipment purchased by Customer (the
"Equipment") is provided FOB vendor facility. Shipment will be made as specified
by Customer and Customer is solely responsible for all expenses in connection
with the delivery of the Equipment. The Equipment will be deemed accepted by
Customer upon shipment.
2. PURCHASE PRICE AND TAXES. Customer shall pay to Exodus the purchase
price set forth in the applicable Order Form ("Purchase Price") for each item of
Equipment. Customer hereby grants and Exodus reserves a purchase money security
interest in the Equipment and the proceeds thereof as a security for its
obligations hereunder until payment of the full Purchase Price to Exodus. The
Purchase Price is due and payable within thirty (30) days of shipment of the
Equipment. Customer shall pay all taxes and other governmental charges assessed
in connection with the sale, use or possession of the Equipment including,
without limitation, any and all sales and/or use taxes and personal property
taxes (other than taxes on Exodus' net income).
3. TITLE. Customer shall acquire title to the Equipment upon full payment
of the purchase price(s) set forth herein. Notwithstanding the foregoing, Exodus
and any licensor of rights to Exodus shall retain title to and rights in the
intellectual property (whether or not subject to patent or copyright) and
content contained in the materials supplied under the terms of this Agreement.
4. SELECTION OF EQUIPMENT; MANUFACTURER WARRANTY. Customer acknowledges
that it has selected the Equipment and disclaims any statements made by Exodus.
Customer acknowledges and agrees that use and possession of the Equipment by
Customer shall be subject to and controlled by the terms of any manufacturer's
or, if appropriate, supplier's warranty, and Customer agrees to look solely to
the manufacturer or, if appropriate, supplier with respect to all mechanical,
service and other claims, and the right to enforce all warranties made by said
manufacturer are hereby, to the extent Exodus has the right, assigned to
Customer. THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY AND IS IN LIEU OF ANY
ORAL REPRESENTATION AND ALL OTHER WARRANTIES AND DAMAGES, WHETHER EXPRESS,
IMPLIED OR STATUTORY. EXODUS HAS NOT MADE NOR DOES MAKE ANY OTHER WARRANTIES OF
ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OF NONINFRINGEMENT OF
THIRD PARTY RIGHTS AND AS TO EXODUS AND ITS ASSIGNEES, CUSTOMER PURCHASES THE
EQUIPMENT "AS IS."
5. LIMITATION OF LIABILITY. Exodus' entire liability for any damages which
may arise hereunder, for any cause whatsoever, and regardless of the form of
action, whether in contract or in tort, including Exodus' negligence, or
otherwise, shall be limited to the Purchase Price paid by Customer for the
Equipment. IN NO EVENT WILL EXODUS BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF BUSINESS OR PROSPECTIVE
BUSINESS OPPORTUNITIES, PROFITS, SAVINGS, INFORMATION,
-2-
USE OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF EXODUS HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. GOVERNING LAW, DISPUTE RESOLUTION. 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. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, the parties to this Agreement hereby consent to jurisdiction and
venue in the courts of the state of California and in the U.S. District Courts
in the City of San Francisco, California.
7. MISCELLANEOUS. THE ABOVE TERMS AND CONDITIONS ARE THE ONLY TERMS AND
CONDITIONS UPON WHICH EXODUS IS WILLING TO SELL THE EQUIPMENT AND SUPERSEDE ALL
PREVIOUS AGREEMENTS, PROMISES OR REPRESENTATIONS, ORAL OR WRITTEN.
ORDER FORM EXODUS
Customer
-------------------------------------------------------- ------------------------------------------- -------------------------
Next Big Star, LLC
--------------------------------------------------------------------------------------------------------------------------------
Quote Date: January 20, 2000 IDC:
Form #: 1-3OYF5 Revision: 1 Sales Person:
Valid From: 01/19/2000 Through: 01/31/2000 Order Status:
------------------------------------------------------------------------------------ --------------------------
Requested Service Date: 03/31/2000 Initial Term: 12 Months
--------------- --------------------------------------- ------------------------------------------- -------------------------
LINE SERVICES DESCRIPTION* IDC
--------------- --------------------------------------- ------------------------------------------- -------------------------
1 EXO-SRBW2 Exodus Bandwith Reporting DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
2 EXO-SRBW2 Exodus Bandwith Reporting Santa Clara, CA
--------------- --------------------------------------- ------------------------------------------- -------------------------
3 EXO-RACK-50 CyberRack (19" or 23" Half Rack) DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
4 EXO-RACK-50 CyberRack (19" or 23" Half Rack) Santa Clara, CA
--------------- --------------------------------------- ------------------------------------------- -------------------------
5 EXO-RACK-50SU CyberRack Setup 50 DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
6 EXO-RACK-50SU CyberRack Setup 50 Santa Clara, CA
--------------- --------------------------------------- ------------------------------------------- -------------------------
7 EXO-ETHER-U1 1 Mbps base Ethernet with 10 Mbps DC /
burstability ▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
8 EXO-ETHER-U1 1 Mbps base Ethernet with ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
burstability
--------------- --------------------------------------- ------------------------------------------- -------------------------
9 EXO-ETHER-SU Setup - Ethernet Network DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
10 EXO-ETHER-SU Setup - Ethernet Network Santa Clara, CA
--------------- --------------------------------------- ------------------------------------------- -------------------------
11 EXO-MONW 24x7 Network Device Monitoring (per DC /
device) ▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
12 EXO-MONW 24x7 Network Device Monitoring (per Santa Clara, CA
device)
--------------- --------------------------------------- ------------------------------------------- -------------------------
17 EXO-MS3DNS1 3DNS1 Managed Service DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
18 EXO-MS3DNS1SU 3DNS1 Managed Service - Set-up DC /
▇▇▇▇▇▇▇
--------------- --------------------------------------- ------------------------------------------- -------------------------
Total
--------------- --------------------------------------- ------------------------------------------- -------------------------
Variable Usage above Base
---------------------------------------------------------------------------------------------------------------------------------
--------------- --------------------------------------- ------------------------------------------- -------------------------
▇▇▇▇ to
----------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
Next Big Star, LLC Next Big Star, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------- ----------- ----------------------------------------------------------------------------------------------------
Quote Date: DC / ▇▇▇▇▇▇▇ Payment Terms: Net 30
Form #: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Wienko
Valid From: Final Order Type: New
-----------------------------------------------------------------------------------------
(minimum 12)
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
EXTENDED
MONTHLY NON-RECURRING EXTENDED NON-
RECURRING COST MONTHLY RECURRING
LINE QTY COST FEES FEES
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
1 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
2 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
3 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
4 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
5 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
6 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
7 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
8 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
9 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
10 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
11 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
12 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
17 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
18 1 $**** $**** $**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
$**** $****
--------------- ----------- ----------------------- ------------------------- ----------------------- -----------------------
Variable Usage above Base
-----------------------------------------------------------------------------------------------------------------------------------
Customer's Initials__________
--------------- ----------- ----------------------- ---------------------------------------------------------------------------
**** Confidential Treatment is being requested for these portions of this
Agreement.
-2-
ORDER FORM
EXODUS
-------------------------- ------------------------------- -------------------- ----------- ---------------------
EXO-ETHER-UV Variable Usage Cost DC / 0 $****
above base ▇▇▇▇▇▇▇
Amount ($/megabit)
Ethernet
-------------------------- ------------------------------- -------------------- ----------- ---------------------
EXO-ETHER-UV Variable Usage Cost Santa Clara, CA 0 $****
above base
Amount ($/megabit)
Ethernet
-------------------------- ------------------------------- -------------------- ----------- ---------------------
**** Confidential Treatment is being requested for these portions of this
Agreement.
ORDER FORM
EXODUS
ORDER FORM TERMS AND CONDITIONS:
(1) Customer hereby orders and Exodus Communications, Inc. (Exodus) agrees to
provide the Services described in this Order Form. THE SERVICES ARE
PROVIDED PURSUANT TO THE TERMS AND CONDITIONS OF THIS ORDER FORM AND THE
SERVICES AGREEMENT (EITHER MASTER SERVICES AGREEMENT, INTERNET DATA CENTER
SERVICES AGREEMENT AND/OR PROFESSIONAL SERVICES AGREEMENT) BETWEEN EXODUS
AND CUSTOMER.
(2) The Customer representative signing below hereby acknowledges and agrees
that in the event that the Customer does not issue a purchase order prior
to the Requested Service Date, this Order shall serve as Customer's
purchase order. Customers further acknowledges that any additional or
conflicting terms and conditions contained in Customer's purchase order
shall not be applicable to the Services to be provided hereunder, even if
Exodus uses such purchase order for invoicing purposes.
(3) Neither Customer nor Exodus will be bound by this Order Form until it has
been signed by authorized representatives of both parties.
(4) Changes or alterations to this Order Form will not be accepted.
THERE ARE SIGNIFICANT ADDITIONAL TERMS AND CONDITIONS, WARRANTY DISCLAIMERS AND
LIABILITY LIMITATIONS CONTAINED IN THE SERVICES AGREEMENT (EITHER THE MASTER
SERVICES AGREEMENT, INTERNET DATA CENTER SERVICES AGREEMENT AND/OR PROFESSIONAL
SERVICES AGREEMENT) BETWEEN CUSTOMER AND EXODUS. THERE ARE ALSO DETAILED
DESCRIPTIONS OF EACH SERVICE, AND SPECIFIC TERMS APPLICABLE TO EACH SERVICE,
CONTAINED IN THE SPECIFICATION SHEETS AND/OR STATEMENT OF WORK FOR EACH SERVICE.
DO NOT SIGN THIS ORDER FORM BEFORE YOU HAVE READ ALL OF THE PROVISIONS OF THE
SERVICES AGREEMENT AND THE SPECIFICATION SHEETS AND/OR STATEMENT OF WORK. YOUR
SIGNATURE BELOW INDICATES THAT YOU HAVE READ THE SERVICES AGREEMENT AND THE
SPECIFICATION SHEETS AND/OR STATEMENTS OF WORK AND AGREE TO BE BOUND BY THEIR
PROVISIONS.
--------------------------------------------------------------------------------
CUSTOMER EXODUS
Signature: Signature:
----------------------- ----------------------
Print Name: Print Name:
----------------------- ----------------------
Title: Title:
----------------------- ----------------------
Date: Date:
----------------------- ----------------------
