GLOBALCENTER MASTER SERVICE AGREEMENT
This Master Services Agreement (this "Agreement") is entered into as the
1 day of May, 1998 ("Effective Date") by and between the entity indicated on the
Services Order Form attached hereto, with an office at the address listed on the
Services Order Form ("Client"), and GlobalCenter, Inc., a corporation with
offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("GlobalCenter"), and describes
the terms and conditions pursuant to which GlobalCenter shall license to Client
certain Software and provide certain Services (as defined below).
In consideration of the mutual promises and upon the terms and
conditions set forth below, the parties agree as follows:
1. NATURE OF AGREEMENT. This is an Agreement for the provision by GlobalCenter
of Internet connectivity services (the "Bandwidth"), the lease of equipment to
provide such services (the "Hardware"), the availability of space to store and
operate such Hardware ("Space") and the licensing of software to provide such
Services (the "Software"), together comprising an Internet connectivity and
collocation package to be provided by GlobalCenter under this Agreement
(together, the "Services").
2. SERVICE ORDERS
2.1. Orders. Client may issue one or more service orders describing the
Bandwidth, Space, Hardware, and Software that Client desires ("Service Order").
Each Service Order will set forth the prices, initial term of Services and other
information in the form set forth in the Service Order Form. No Service Order
shall be effective until accepted by GlobalCenter. All Service Orders will be
subject to the terms and conditions of this Agreement, and the terms of this
Agreement shall supersede any terms and conditions which may appear on Client's
order form, or purchase order.
2.2. Cancellation. In the event that Client cancels or terminates a Service
Order at any time for any reason whatsoever other than expiration of a Service
Order or a Service Interruption (as defined below), Client agrees to pay
GlobalCenter as a cancellation fee all Monthly Recurring Charges specified in
the Service Order for the balance of the term therefor, which shall become due
and owing as of the effective date of cancellation or termination.
2.3. IP Addresses. GlobalCenter may assign on a temporary basis a reasonable
number of Internet Protocol Addresses ("IP Addresses") from the address space
assigned to the GlobalCenter by InterNIC. Client acknowledges that the IP
Addresses are the sole property of GlobalCenter, are assigned to Client as part
of the Service, and are not "portable," as such term is used by InterNIC.
GlobalCenter reserves the right to change the IP Address assignments at any
time; however, GlobalCenter shall use reasonable efforts to avoid any disruption
to Client resulting from such renumbering requirement. GlobalCenter will give
Client reasonable notice of any such renumbering. Client agrees that it will
have no right to IP Addresses upon termination of this Agreement, and that any
renumbering required of Client after termination shall be the sole
responsibility of Client.
3. SOFTWARE LICENSE AND RIGHTS
3.1. License. During the term of the applicable Service Order, GlobalCenter
grants Client a non-transferable, nonexclusive license to use the Software in
object code form only, solely on the Hardware in conjunction with the Services.
3.2. Proprietary Rights. This Agreement transfers to Client neither title nor
any proprietary or intellectual property rights to the Software, Hardware,
documentation, or any copyrights, patents, or trademarks, embodied or used in
connection therewith, except for the rights expressly granted herein.
3.3. License Restrictions. Client agrees that it will not itself, or through any
parent, subsidiary, affiliate, agent or other third party:
3.3.1. copy of the Software except as expressly allowed under this Agreement. In
the event Client makes any copies of the Software, Client shall reproduce all
proprietary notices of GlobalCenter on any such copies:
3.3.2. reverse engineer, decompile, disassemble, or otherwise attempt to derive
source code from the Software;
3.3.3. sell, lease, license or sublicense the Software or the documentation;
3.3.4. write or develop any derivative software or any other software program
based upon the Software or any Confidential Information (as defined below); or
3.3.5. use the Software to provide processing services to third parties, or
otherwise use the Software on a 'service bureau' basis.
4. HARDWARE TERMS AND CONDITIONS
4.1. Installation. GlobalCenter will use commercially reasonable efforts to
install the Hardware as the Hardware is shipped to GlobalCenter. At Client's
request, GlobalCenter will work with the Client on an installation plan to
define installation time frame and requirements.
4.2. Purchase and Title of Hardware. If so indicated on the Service Order,
Client shall purchase the Hardware and deliver, at Client's expense, the
Hardware to the Space. Client agrees that the Hardware shall reside at the Space
during the term of this Agreement.
4.3. Lease of Hardware. If so indicated on the Service Order, Client shall lease
the Hardware, and GlobalCenter shall obtain and deliver to the Space the
Hardware. In the event Client leases the Hardware, the following terms and
conditions shall apply: The Hardware is and shall remain the property of
GlobalCenter. Client shall not have taken, or attempt to take, any right, title
or interest therein or permit any third party to take any interest therein,
Client will not transfer, sell, assign, sublicense, pledge, or otherwise dispose
of, encumber or suffer a lien of encumbrance upon or against the Hardware or any
interest in Hardware. Client will use the Hardware only at the Space. Client
will not move the Hardware from that facility without GlobalCenter's prior
written permission. Client shall be responsible for any damage to the Hardware.
Client will use the Hardware only for the purpose of exercising its rights under
this Agreement.
4.4. Rent to Own. If so indicated on the Service Order, Client shall lease the
Hardware on "rent to own" plan. In such event, all of the terms and conditions
in Section 4.3 shall apply, and the following terms and conditions shall also
apply. At the end of the term of the Service Order, providing Client is not in
breach of this Agreement, Client shall have the option
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to purchase the Hardware. The purchase price shall be as indicated on the
Service Order. Upon payment by Client of the purchase price, title in the
Hardware shall pass to Client at the Space. Unless the Service Order is extended
by mutual agreement, Client shall immediately delete, or shall allow
GlobalCenter to delete, all copies of the Software, associated documentation, or
any other materials of GlobalCenter resident on the Hardware.
5. SPACE.
5.1. License to Occupy. GlobalCenter grants to Client a non-exclusive license to
occupy the Space. Client acknowledges that it has been granted only a license to
occupy the Space and that it has not been granted any real property interests in
the Space. In the event, however, that this arrangement shall be construed by
the owner of the building in which the Space is situated to be such a grant and
if the landlord of the building asserts such a grant to be a violation of the
lease under which GlobalCenter occupies its premises, GlobalCenter agrees to
cooperate with Client in obtaining the approvals Client may need to obtain from
the landlord.
5.2. Material and Changes. Client shall not make any construction changes or
material alterations to the interior or exterior portions of the Space,
including any cabling or power supplies for the Hardware, without obtaining
GlobalCenter's prior written approval for Client to have the work performed.
Alternatively, Client may request GlobalCenter to perform the work. GlobalCenter
reserves the right to perform and manage any construction or alterations within
the Space areas at rates to be negotiated between the Parties hereto. Client
agrees not to erect any signs or devices to the exterior portion of the Space
without submitting the request to GlobalCenter and obtaining GlobalCenter's
advance written approval.
5.3. Damage. Client agrees to reimburse GlobalCenter for all reasonable repair
or restoration costs associated with damage or destruction caused by Client's
personnel, Client's agents, Client's suppliers/contractors, or Client's visitors
during the term or as a consequence of Client's removal of the Hardware or
property installed in the Space.
5.4. Insurance. Unless otherwise agreed, Client agrees to maintain, at Client's
expense, (i) Comprehensive General Liability Insurance in an amount not less
than One Million Dollars ($1,000,000) per occurrence for bodily injury or
property damage, (ii) Employer's Liability in an amount not less than Five
Hundred Thousand Dollars ($500,000) per occurrence, and (iii) Worker's
Compensation in an amount not less than that prescribed by statutory limits.
Prior to taking occupancy of the Collocation Space, Client shall furnish
GlobalCenter with certificates of insurance which evidence the minimum levels of
insurance set forth herein. Client shall also maintain insurance covering
Hardware or property owned or leased by Client against loss or physical damage.
5.5. Regulations. Client shall comply with and not violate all of GlobalCenter's
safety, health and operational rules and regulations, which may be amended by
GlobalCenter from time to time. Client's failure to comply with GlobalCenter's
rules and regulations shall constitute a material default under this Agreement.
GlobalCenter may, in its sole discretion, limit Client's access to a reasonable
number of authorized Client employees or designees. Client shall not interfere
with any other clients of GlobalCenter or such other clients' use of the Space.
5.6. Disclaimer. GlobalCenter does not make any representation or warranty
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whatsoever as to the fitness of the Space for Client's use. Client hereby
assumes any and all risks associated with Client, its agents or employees' use
of the Space and shall indemnify, defend and hold harmless GlobalCenter from any
and all claims, liabilities, judgments, causes of action, damages, costs, and
expenses (including reasonable attorneys' and experts' fees), caused by or
arising in connection with such use.
6. SERVICE INTERRUPTIONS
6.1. 99% Uptime Guarantee. In the event of Downtime (as defined below),
the monthly fee payable for the Services shall be reduced as follows:
6.1.1. If the Total Downtime in the calendar month is more than seven
and seven and two-tenths (7.2) hours, but does not exceed fourteen and
four-tenths (14.4) hours, the monthly fee for that month shall be
reduced by one-third (33.3%);
6.1.2. If the total Downtime in the calendar month is more than fourteen
and four-tenths (14.4) hours, but does not exceed twenty-one and six
tenths (21.6) hours, the monthly fee for that month shall be reduced by
two-thirds (66.6%); and
6.1.3. If the total Downtime in the calendar month is more than
twenty-one and six-tenths (21.6) hours, the monthly fee for that month
shall be waived.
For the purposes of this Section, Downtime shall mean any interruption of one
(1) minute or more in the availability to users of any Web site residing on the
Hardware and made available through the Services, only if such interruption is
due to either (i) failure by GlobalCenter to manage a server anomaly so as to
avoid interruption in Web availability, or (ii) a disruption in the connection
between any such server and the Internet. For purposes of this Section, the
Internet is deemed to consist of services that commence where GlobalCenter
transmits a Client's content to GlobalCenter's carrier(s) at the GlobalCenter
border router port(s). Such carriers provide GlobalCenter with private and
dedicated bandwidth. GlobalCenter undertakes no obligation for the circuit or
link between GlobalCenter's facilities and such carrier's services. If router
packet loss is excess of seventy percent (70%) and is sustained for sixty (60)
seconds or more, GlobalCenter will classify this an "outage." If an "outage"
continues for a time period of more than two (2) minutes, then such outage will
be deemed Downtime.
6.2. Investigation of Service Interruptions. At Client's request, GlobalCenter
will investigate any report of Downtime, and attempt to remedy any Downtime
expeditiously. GlobalCenter reasonably determines that all facilities, systems
and equipment furnished by GlobalCenter are functioning properly, and that
Downtime arose from some other cause, GlobalCenter reserves the right to recover
labor and materials cost for services actually performed at the usual and
customary rates for similar services provided by GlobalCenter to clients in the
same locality.
6.3. Termination. Client may terminate a Service Order in the event of Downtime
of either twenty-four (24) hours of cumulative time during any continuous twelve
(12) month period, or any continuous Downtime of eight (8) hours or more.
6.4. Sole Remedy. The terms and conditions of this Section 6 shall Client's sole
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remedy and GlobalCenter's sole obligation for any Downtime.
7. USER CONTENT. Client is solely responsible for the content of any postings,
data or transmissions using the Services ("Content"), or any other use of the
Services by Client or by any person or entity Client permits to access the
Services (a "User"). Client represents and warrants that it and any User will
not use the services for unlawful purposes (including without limitation
infringement of copyright or trademark, misappropriation of trade secrets, wire
fraud, invasion of privacy, pornography, obscenity and libel), or to interfere
with or disrupt other network users, network services or network equipment.
Disruptions include without limitation distribution of unsolicited advertising
or chain letters, repeated harassment of other network users, wrongly
impersonating another such user, falsifying one's network identity for improper
or illegal purposes, sending unsolicited mass e-mailings, propagation of
computer worms and viruses and using the network to make unauthorized entry to
any other machine accessible via the network. If GlobalCenter has reasonable
grounds to believe that Client or a User is utilizing the Services for any such
illegal or disruptive purpose, GlobalCenter may suspend or terminate Services
immediately upon notice to Client. Client shall defend, indemnify, hold harmless
GlobalCenter from and against all liabilities and costs (including reasonable
attorney's fees) arising from any and all claims by any person arising out of
Client's use of the Services, including without limitation any content.
8. PRICING AND PAYMENT TERMS
8.1. Payment Terms. Client shall pay the fees set forth in the Services Order
Form according to the terms set forth therein. Client agrees to pay a late
charge of two percent (2%) above the prime rate as reported by the Wall Street
Journal at the time of assessment or the maximum lawful rate, whichever is less,
for all undisputed amounts not paid within thirty (30) days of receipt of
invoice.
8.2. Late Payments. In the event of non-payment by Client of sums over-due
hereunder for more than sixty (60) days, GlobalCenter may upon written notice to
Client either retain any equipment or other assets of Client then in
GlobalCenter's possession and sell them in partial satisfaction of such unpaid
sums, or request Client to remove equipment from GlobalCenter's premises within
ten (10) days. If Client fails to so remove, GlobalCenter may deliver the
equipment to Client at the latter's address for notices at Client's expense for
shipment and insurance, and Client shall be obligated to accept such delivery.
8.3. Price Increases. GlobalCenter shall not increase the prices for services
during the initial term of any Service Order, but may thereafter change prices
upon sixty (60) days written notice.
9. MAINTENANCE AND SUPPORT. GlobalCenter shall provide Client with maintenance
and support of the Software and Hardware, if any ("Maintenance and Support") as
specified in the Service Specification.
9.1. Exclusions. Maintenance and Support shall not include services for problems
arising out of (a) modification, alteration or addition or attempted
modification, alteration or addition of the Hardware or Software undertaken by
persons other than GlobalCenter or GlobalCenter's authorized representatives; or
(b) programs or hardware supplied by Client.
9.2. Client Duties. Client shall document
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and promptly report all errors or malfunctions of the Hardware or Software to
GlobalCenter. Client shall take all steps necessary to carry out procedures for
the rectification of errors or malfunctions within a reasonable time after such
procedures have been received from GlobalCenter. Client shall maintain a current
backup copy of all programs and data. Client shall properly train its personnel
in the use and application of the Hardware and Software.
10. TERM AND TERMINATION
10.1. Term. The term of this Agreement shall commence on the Effective Date and
continue indefinitely terminated in accordance with this Section 10. The term of
each Service Order shall be as indicated therein. The term of any Service Order
may be extended upon mutual agreement.
10.2. Termination Upon Default. Either party may terminate this Agreement in the
event that the other party materially defaults in performing any obligation
under this Agreement and such default continues unremedied for a period of
thirty (30) days following written notice of default. In the event this
Agreement is terminated due to GlobalCenter's breach, GlobalCenter shall refund
to Client any Services fees on a straight line prorated basis.
10.3. Termination Upon Insolvency. This Agreement shall terminate, effective
upon delivery of written notice by a party, (i) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debts of the other party; (ii) upon the making of an
assignment for the benefit of creditors by the other party; or (iii) upon the
dissolution of the other party.
10.4. Effect of Termination. The provisions of Sections 1, 23, 3.2, 3.3, 7,
10.4, 11, 12, 13 and 14 shall survive termination of this Agreement. All other
rights and obligations of the parties shall cease upon termination of this
Agreement. The term of any license granted hereunder shall expire upon
expiration or termination of this Agreement.
11. CONFIDENTIAL INFORMATION. All information identified disclosed by either
party ("Disclosing Party") to the other party ("Receiving Party"), if disclosed
in writing, labeled as proprietary or confidential, or if disclosed orally,
reduced to writing within thirty (30) days and labeled as proprietary or
confidential ("Confidential Information") shall remain the property of
Disclosing Party. Except for the specific rights granted by this Agreement,
Receiving Party shall not use any Confidential Information of Disclosing Party
for its own account. Receiving Party shall use the highest commercially
reasonable degree of care to protect Disclosing Party's Confidential
Information. Receiving Party shall not disclose Confidential Information to any
third party without the express written consent of Disclosing Party (except
solely for Receiving Party's internal business needs, to employees or
consultants who are bound by a written agreement with Receiving Party to
maintain the confidentiality of such Confidential Information in a manner
consistent with this Agreement). Confidential Information shall exclude
information (i) available to the public other than by a breach of this
Agreement; (ii) rightfully received from a third party not in breach of an
obligation of confidentiality; (iii) independently developed by Receiving Party
without access to Confidential Information; (iv) known to Receiving Party at the
time of disclosure; or (v) produced in compliance with applicable law or a court
order, provided Disclosing Party if given reasonable notice of such law or order
and an opportunity to attempt to preclude or limit such
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production. Subject to the above, Receiving Party agrees to cease using any and
all materials embodying Confidential Information and to promptly return such
materials to Disclosing Party upon request.
12. LIMITATION OF LIABILITY. GLOBALCENTER'S LIABILITY FOR ALL CLAIMS ARISING OUT
OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CLIENT TO
GLOBALCENTER UNDER THIS AGREEMENT. IN NO EVENT SHALL GLOBALCENTER BE LIABLE FOR
ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT
OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF
LIABILITY. THIS LIMITATION WILL APPLY EVEN IF GLOBALCENTER HAS BEEN ADVISED OR
IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
13. DISCLAIMER OF WARRANTIES. GLOBALCENTER SPECIFICALLY DISCLAIMS ALL WARRANTIES
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE
SYSTEM OR SERVICES PROVIDED BY GLOBALCENTER HEREUNDER.
14. MISCELLANEOUS.
14.1. Independent Contractor. The relationship of GlobalCenter and Client
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to (i) give either party the
power to direct and control the day-to-day activities of the other; (ii)
constitute the parties as partners, joint ventures, co-owners or otherwise as
participants in a joint undertaking; or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose whatsoever.
14.2. Notices. Any notice required or permitted hereunder shall be in writing
and shall be given by registered or certified mail addressed to the addresses
first written above. Such notice shall be deemed to be given upon the earlier of
actual receipt or three (3) days after it has been sent, properly addressed and
with postage prepaid. Either party may change its address for notice by means of
notice to the other party given in accordance with this Section.
14.3. Assignment. Client may not assign this Agreement, in whole or in part,
either voluntarily or by operation of law, and any attempt to do so shall be a
material default of this Agreement and shall be void.
14.4. Governing Law. This Agreement shall be interpreted according to
the laws of the State of California without regard to application of
choice-of-law rules or principles. The parties hereby agree to the exclusive
jurisdiction of the state and federal courts located in Santa Xxxxx County,
California.
14.5. Entire Agreement and Waiver. This Agreement shall constitute the
entire agreement between GlobalCenter and Client with respect to the subject
matter hereof and all prior agreements, representations, and statement with
respect to such subject matter are superseded hereby, including without
limitation any non-disclosure agreement previously executed between the parties.
This Agreement may be changed only by written agreement
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signed by both GlobalCenter and Client. No failure of either party to exercise
or enforce any of its rights under this Agreement shall act as a waiver of
subsequent breaches; and the waiver of any breach shall not act as a waiver of
subsequent breaches.
14.6. Severability. In the event any provision of this Agreement is held by a
court or other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect.
14.7. Non-Solicitation. During the term of this agreement and for a period of
one (1) year thereafter, Client shall not solicit, nor attempt to solicit the
services, of any employee or subcontractor of GlobalCenter without the prior
written consent of GlobalCenter.
14.8. Substitution. GlobalCenter may substitute, change or modify the Software
or Hardware at any time, but shall not thereby alter the technical parameters of
the Services.
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