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EXHIBIT 10.15
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
THIS INTERNET DATA CENTER SERVICES AGREEMENT (this "Agreement") is made
effective as of the Submission Date (August 31, 1998) indicated in the initial
Internet Data Center Services Order Form accepted by Exodus, by and between
Exodus Communications, Inc. ("Exodus") and the customer identified below
("Customer").
PARTIES:
CUSTOMER NAME: N2H2
ADDRESS: 000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
PHONE: (000) 000-0000
FAX:
Exodus Communications, Inc.
0000 Xxx Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
1. INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, during the term of this
Agreement, Exodus will provide to Customer the services described in the
Internet Data Center Services Order Form(s) ("IDC Services Order Form(s)")
accepted by Exodus, or substantially similar services if such substantially
similar services would provide Customer with substantially similar benefits
("Internet Data Center Services"). All IDC Services Order Forms accepted by
Exodus are incorporated herein by this reference, each as of the Submission Date
indicated in such form.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC
Services Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services,
other than Setup Fees, indicated on the initial IDC Services Order Form shall
commence on the earlier to occur of (i) the "Installation Date" indicated in the
initial IDC Services Order Form, regardless of whether Customer has commenced
use of the Internet Data Center Services, unless Customer is
Non-Standard - N2H2
EXODUS COMMUNICATIONS, INC. CONFIDENTIAL AND PROPRIETY (rev 6/98)
[*] Information has been omitted pursuant to a request for confidential
treatment and has been filed separately with the Securities And Exchange
Commission.
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unable to install the Customer Equipment and/or use the Internet Data Center
Services by the Installation Date due to the fault of Exodus, then billing will
not begin until the date Exodus has remedied such fault and (ii) the date the
"Customer Equipment" (Customer's computer hardware and other tangible equipment,
as identified in the Customer Equipment List which is incorporated herein by
this reference) is placed by Customer in the "Customer Area" (the portion(s) of
the Internet Data Centers, as defined in Section 3.1 below, made available to
Customer hereunder for the placement of Customer Equipment) and is operational.
All Setup Fees will be billed upon receipt of a Customer signed IDC Services
Order Form. In the event that Customer orders additional Internet Data Center
Services, billing for such services shall commence on the date Exodus first
provides such additional Internet Data Center Services to Customer or as
otherwise agreed to by Customer and Exodus.
2.3 Billing and Payment Terms. Customer will be billed monthly in
advance of the provision of Internet Data Center Services, and payment of such
fees will be due within thirty (30) days of the date of each Exodus invoice. All
payments will be made in U.S. dollars. Late payments hereunder will accrue
interest at a rate of one percent (1%) per month, or the highest rate allowed by
applicable law, whichever is lower. If in its judgment Exodus determines that
Customer is not creditworthy or is otherwise not financially secure, Exodus may,
upon written notice to Customer, modify the payment terms to require full
payment before the provision of Internet Data Center Services or other
assurances to secure Customer's payment obligations hereunder.
2.4 Taxes. All payments required by this Agreement are exclusive of
all national, state, municipal or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding taxes and
obligations and other levies now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, except for taxes based on
Exodus' net income.
3. CUSTOMER'S OBLIGATIONS.
3.1 Compliance with Law and Rules and Regulations. Customer agrees
that Customer will comply at all times with all applicable laws and regulations
and Exodus' general rules and regulations relating to its provision of Internet
Data Center Services, as updated by Exodus from time to time ("Rules and
Regulations"). Customer acknowledges that Exodus exercises no control whatsoever
over the content of the information passing through its sites containing the
Customer Area and equipment and facilities used by Exodus to provide Internet
Data Center Services ("Internet Data Centers"), and that it is the sole
responsibility of Customer to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
3.2 Customer's Costs. Customer agrees that it will be solely
responsible, and at Exodus's request will reimburse Exodus, for all costs and
expenses incurred at Customer's request (other than those included as part of
the Internet Data Center Services and except as otherwise expressly provided
herein) it incurs in connection with this agreement.
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3.3 Access and Security. Customer will be fully responsible for any
charges, costs, expenses (other than those included in the Internet Data Center
Services), and third party claims that may result from its use of, or access to,
the Internet Data Centers and/or the Customer Area including but not limited to
any unauthorized use of any access devices provided by Exodus hereunder. Except
with the advanced written consent of Exodus, Customer's access to the Internet
Data Centers will be limited solely to the individuals identified and authorized
by Customer to have access to the Internet Data Centers and the Customer Area in
accordance with this Agreement, as identified in the Customer Registration Form,
as amended from time to time, which is hereby incorporated by this reference
("Representatives").
3.4 No Competitive Services. Customer may not at any time permit any
Internet Data Center Services to be utilized for the provision of any services
that compete with any Exodus services, without Exodus' prior written consent.
3.5 Insurance.
(a) Minimum Levels. Customer will keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage; (ii) employer's liability insurance in an amount not less than
$1 million per occurrence; and (iii) workers' compensation insurance in an
amount not less than that required by applicable law. Customer also agrees that
it will, and will use commercially reasonable efforts to ensure that its agents
(including contractors and subcontractors) maintain, other insurance at levels
no less than those required by applicable law and customary in Customer's and
its agents' industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish Exodus with certificates
of insurance which evidence the minimum levels of insurance set forth above.
(c) Naming Exodus as an Additional Insured. Customer agrees that
prior to the installation of any Customer Equipment, Customer will cause its
insurance provider(s) to name Exodus as an additional insured and notify Exodus
in writing of the effective date thereof.
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information. Each party acknowledges that it will
have access to certain confidential information of the other party concerning
the other party's business, plans, customers, technology, and products,
including the terms and conditions of this Agreement ("Confidential
Information"). Confidential Information will include, but not be limited to,
each party's proprietary software and customer information. Each party agrees
that it will not use in any way, for its own account or the account of any third
party, except as expressly permitted by this Agreement, nor disclose to any
third party (except as required by law or to that party's attorneys,
accountants, and other advisors as reasonably necessary), any of the other
party's Confidential Information and will take reasonable precautions to protect
the confidentiality of such information.
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4.2 Exceptions. Information will not be deemed Confidential
Information hereunder if such information: (i) is known to the receiving party
prior to receipt from the disclosing party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(ii) becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment. Customer represents and warrants that it
owns or has the legal right and authority, and will continue to own or maintain
the legal right and authority during the term of this Agreement, to place and
use the Customer Equipment as contemplated by Agreement. Customer further
represents and warrants that its placement, arrangement, and use of the Customer
Equipment in the Internet Data Centers complies with the Customer Equipment
Manufacturer's environmental and other specifications.
(b) Customer's Business. Customer represents and warrants that to
the best of its knowledge Customer's services, products, materials, data,
information and Customer Equipment used by Customer in connection with this
Agreement as well as Customer's and its permitted customers' and users' use of
the Internet Data Center Services (collectively, "Customer's Business") does not
as of the Installation Date, and will not during the term of this Agreement
operate in any manner that would violate any applicable law or regulation.
(c) Rules and Regulations. Customer has read the Rules and
Regulations and represents and warrants that Customer and Customer's Business
are currently in full compliance with the Rules and Regulations, and will remain
so at all times during the term of this Agreement.
(d) Breach of Warranties. In the event of any breach, of any of the
foregoing warranties, in addition to any other remedies available at law or in
equity, Exodus will have the right immediately, in Exodus' sole discretion, to
suspend any related Internet Data Center Services if deemed reasonably necessary
by Exodus to prevent any harm to Exodus and its business, provided Exodus
notifies Customer of such breach and Customer has failed to cure such breach
within a reasonable period based on the nature of the breach.
5.2 WARRANTIES AND DISCLAIMERS BY EXODUS.
5.2(a) Service Level Warranty. In the event Customer
experiences any of the following and Exodus determines in its reasonable
judgment that such inability was caused by Exodus' failure to provide Internet
Data Center Services for reasons within Exodus' reasonable control and not as a
result of any actions or inactions of Customer or any third parties (including
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Customer Equipment and third party equipment), Exodus will, upon Customer's
request in accordance with paragraph (iii) below, credit Customer's account as
described below:
(i) Inability to Access the Internet (Downtime). If Customer
is unable to transmit and receive information from Exodus' Internet Data Centers
(i.e., Exodus' LAN and WAN) to other portions of the Internet because Exodus
failed to provide the Internet Data Center Services for more than fifteen (15)
consecutive minutes, Exodus will credit Customer's account the pro-rata
connectivity charges (i.e., all bandwidth related charges) for one (1) day of
service, up to an aggregate maximum credit of connectivity charges for seven (7)
days of service in any one calendar (1) month. Exodus' schedule maintenance of
the Internet Data Centers and Internet Data Center Services, as described in the
Rules and Regulations, shall not be deemed to be a failure of Exodus to provide
Internet Data Center Services. For purposes of the foregoing, "unable to
transmit and receive" shall mean sustained packet loss in excess of 50% based on
Exodus' measurements.
(ii) Packet Loss and Latency. Exodus does not proactively
monitor the packet loss or transmission latency of specific customers. Exodus
does, however, proactively monitor aggregate packet loss and transmission
latency within its LAN and WAN. In the event that Exodus discovers (either from
its own efforts or after being notified by Customer) that Customer is
experiencing packet loss in excess of one percent (1%) ("Excess Packet Loss") or
transmission latency in excess of 120 milliseconds round trip time (based on
Exodus' measurements) between any two Internet Data Centers within Exodus' U.S.
network (collectively "Excess Latency," and with Excess Packet Loss "Excess
Packet Loss/Latency"), and Customer notifies Exodus (or confirms that Exodus has
notified Customer), Exodus will take all actions necessary to determine the
source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet
Loss/Latency; Notification of Customer. Within two (2) hours of discovering the
existence of Excess Packet Loss/Latency, Exodus will determine whether the
source of the Excess Packet Loss/Latency is limited to the Customer Equipment
and the Exodus equipment connecting the Customer Equipment to Exodus' LAN
("Customer Specific Packet Loss/Latency"). If the Excess Packet Loss/Latency is
not a Customer Specific Packet Loss/Latency, Exodus will determine the source of
the Excess Packet Loss/Latency within two (2) hours after determining that it is
not a Customer Specific Packet Loss/Latency. In any event, Exodus will notify
Customer of the source of the Excess Packet Loss/Latency within sixty (60)
minutes after identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the
Excess Packet Loss/Latency remedy is within the sole control of Exodus, Exodus
will remedy the Excess Packet Loss/Latency within two (2) hours of determining
the source of the Excess Packet Loss/Latency. If the Excess Packet Loss/Latency
is caused from outside of the Exodus LAN or WAN, Exodus will notify Customer and
will use commercially reasonable efforts to notify the party(ies) responsible
for the source and cooperate with it(them) to resolve the problem as soon as
possible.
(C) Failure to Determine Source and/or Resolve
Problem. In the event that Exodus is unable to determine the source of and
remedy the Excess Packet Loss/Latency within the time periods described above
(where Exodus was solely in control of the source),
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Exodus will credit Customer's account the pro-rata connectivity charges for one
(1) day of service for every two (2) hours after the time periods described
above that it takes Exodus to resolve the problem, up to an aggregate maximum
credit of connectivity charges for seven (7) days of service in any one (1)
month.
(iii) Customer Must Request Credit. To receive any of the
credits described in this section 5.2(a), Customer must notify Exodus within
seven (7) days from the time Customer becomes eligible to receive a credit.
Failure to comply with this requirement will forfeit Customer's right to receive
a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit. In the
event that Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be entitled
to receive only the maximum single credit available for such event. In no event
will Exodus be required to credit Customer in any one (1) calendar month
connectivity charges in excess of seven (7) days of service. A credit shall be
applied only to the month in which there was the incident that resulted in the
credit. Customer shall not be eligible to receive any credits for periods in
which Customer received any Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems. If, in any
single calendar month, Customer would be able to receive credits totaling
fifteen (15) or more days (but for the limitation in paragraph (iv) above)
resulting from three (3) or more events during such calendar month or, if any
single event entitling customer to credits under paragraph 5.2(a)(i) exits for a
period of eight (8) consecutive hours, then, Customer may terminate this
Agreement for cause and without penalty by notifying Exodus within five (5) days
following the end of such calendar month. Such termination will be effective
immediately or as otherwise specified by Customer.
THIS WARRANTY DOES NOT APPLY TO ANY INTERNET DATA CENTER SERVICES THAT EXPRESSLY
EXCLUDE THIS WARRANTY (AS DESCRIBED IN THE SPECIFICATION SHEETS FOR SUCH
PRODUCTS). THIS SECTION 5.2(a) STATES CUSTOMER'S SOUL AND EXCLUSIVE REMEDY FOR
ANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.
(b) Year 2000 Performance Compliance. Exodus represents and warrants
that all IDC Services will (1) correctly handle date information before, during
and after January 1, 2000 accepting date input, providing date output and
performing calculation on dates or portions of dates; (2) function accurately
and without interruption before, during and after January 1, 2000 without
changes in operation associated with the advent of the new century assuming
correct configuration; (3) respond to two digit date input in a way that
resolves the ambiguity as to century in a disclosed, defined and pre-determined
manner; (4) store and provide output of date information in ways that are
unambiguous as to century; and (5) manage the leap occurring in the year 2000,
following the quad-centennial rule. In the event of any breach of the warranties
under this Section 5.2(b), Customer's sole remedy shall be its ability to
terminate this Agreement.
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(c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN
SUBSECTION (a) ABOVE, THE INTERNET DATA CENTER SERVICES ARE PROVIDED ON AN "AS
IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA CENTER SERVICES IS AT ITS OWN
RISK. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(d) Disclaimer of Actions Caused by and/or Under the Control of
Third Parties. EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
EXODUS' INTERNET DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW
DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR
CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE
THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH EXODUS' CUSTOMERS' CONNECTIONS TO
THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH EXODUS
WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO
REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR.
ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO
SUCH EVENTS.
6. LIMITATION OF LIABILITY.
6.1 Personal Injury. EACH REPRESENTATIVE AND ANY OTHER PERSONS
VISITING THE INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO
LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER
THAN EXODUS' NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Business. EXODUS ASSUMES NO
LIABILITY FOR ANY DAMAGE TO, OR LOSS RELATING TO, CUSTOMER'S BUSINESS RESULTING
FROM ANY CAUSE WHATSOEVER. EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR
LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS'
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE EXTENT EXODUS IS LIABLE FOR ANY
DAMAGE TO, OR LOSS OF, THE CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY
WILL BE LIMITED SOLELY TO THE THEN-CURRENT VALUE OF THE CUSTOMER EQUIPMENT.
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1 AND 6.2, IN NO
EVENT WILL EXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY
FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT. CUSTOMER EQUIPMENT,
CUSTOMER'S BUSINESS OR OTHERWISE, AND ANY LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE
OF SERVICE OR OF ANY CUSTOMER EQUIPMENT OR CUSTOMER'S BUSINESS, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES,
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WHETHER UNDER THEORY OR CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE.
6.4 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, EXODUS' MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY
CUSTOMER TO EXODUS HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD.
Intentionally deleted.
6.6 Basis of Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus has set its prices and entered into this Agreement in
reliance upon the limitations of liability and the disclaimers of warranties and
damages set forth herein, and that the same form an essential basis of the
bargain between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential purpose.
7. INDEMNIFICATION.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify,
defend and hold Customer harmless from and against any and all costs,
liabilities, losses, and expenses (including, but not limited to, reasonable
attorneys' fees) (collectively, "Losses") resulting from any claim, suit,
action, or proceeding (each an "Action") brought against Customer alleging (i)
the infringement of any third party registered U.S. copyright or issued U.S.
patent resulting from the provision of Internet Data Center Services pursuant to
this Agreement (but excluding any infringement contributorily caused by
Customer's Business or Customer Equipment) and (ii) personal injury to
Customer's Representatives from Exodus' gross negligence or willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify,
defend and hold Exodus, its affiliates and customers harmless from and against
any and all Losses resulting from or airing out of any Action brought by or
against Exodus, its affiliates or customers alleging: (a) with respect to the
Customer's Business: (i) infringement or misappropriation of any intellectual
property rights; (ii) defamation, libel, slander, obscenity, pornography, or
violation of the rights of privacy or publicity; or (iii) spamming, or any other
offensive, harassing or illegal conduct or violation of the Rules and
Regulations; (b) any damage or destruction to the Customer Area, the Internet
Data Centers or the equipment of Exodus or any other customer by Customer or
Representative(s) or Customer's designees; or (c) any other damage arising from
the Customer Equipment or Customer's Business.
7.3 Notice. Each party will provide the other party prompt written
notice upon of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
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8. TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of one (1)
year from the Installation Date, unless earlier terminated according to the
provisions of this Section 8. The Agreement will automatically renew for
additional terms of one (1) year each.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may terminate
this Agreement for convenience by providing written notice to Exodus at any time
during the thirty (30) day period beginning on the Installation Date.
(ii) By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the first (1st) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other party at any time thereafter.
(b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within thirty (30) days after
receipt of written notice of the same, except in the case of failure to pay
fees, which must be cured within ten (10) days after receipt of written notice
from Exodus; (ii) the other party becomes the subject of a voluntary petition in
bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or (iii) the other
party becomes the subject of an involuntary petition in bankruptcy or any
involuntary proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
8.3 No Liability for Termination. Neither party will be liable to
the other for any termination or expiration of this Agreement in accordance with
its terms.
8.4 Effect of Termination. Upon the effective date of expiration or
termination of this agreement: (a) Exodus will immediately cease providing the
Internet Data Center Services; (b) any and all payment obligations of Customer
under this Agreement will become due immediately; (c) within thirty (30) days
after such expiration or termination, each party will return all Confidential
Information of the other party in its possession at the time of expiration or
termination and will not make or retain any copies of such Confidential
Information except as required to comply with any applicable legal or accounting
record keeping requirement; and (d) Customer will remove from the Internet Data
Centers all Customer Equipment and any of its other property within the Internet
Data Centers within ten (10) days of such expiration or termination and return
the Customer Area to Exodus in the same condition as it was on the Installation
Date, normal wear and tear excepted. If Customer does not remove such property
within such ten day period, Exodus will have the option to (i) move any and all
such
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property to secure storage and charge Customer for the cost of such removal and
storage, and/or (ii) liquidate the property in any reasonable manner.
8.5 Intentionally deleted.
8.6 Survival. The following provisions will survive any expiration
or termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. MISCELLANEOUS PROVISIONS.
9.1 Force Majeure. Except for the obligation to pay money, neither
party will be liable for any failure or delay in its performance under this
Agreement due to any cause beyond its reasonable control, including act of war,
acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act or failure of the Internet, provided that the delayed
party: (a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
9.2 No Lease. This Agreement is a services agreement and is not
intended to and will not constitute a lease of any real or personal property.
Customer acknowledges and agrees that (i) it has been granted only a license to
occupy the Customer Space and use the Internet Data Centers and any equipment
provided by Exodus in accordance with this Agreement, (ii) Customer has not been
granted any real property interest in the Customer Space or Internet Data
Centers, and (iii) Customer has no rights as a tenant or otherwise under any
real property or landlord/tenant laws, regulations, or ordinances. For good
cause, including the exercise of any rights under Section 8.5 above, Exodus may
suspend the right of any Representative or other person to visit the Internet
Data Centers.
9.3 Marketing. Customer agrees that Exodus may refer to Customer by
trade name and trademark, and may briefly describe Customer's Business, in
Exodus' marketing materials and web site. Customer hereby grants Exodus a
license to use any Customer trade names and trademarks solely in connection with
the rights granted to Exodus pursuant to this Section 9.3. In addition, Exodus
agrees have a link to Customer's website and to provide its logo, upon request,
for Customer's use as a link to the Exodus website.
9.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated item
or information to anyone outside the U.S. in connection with this Agreement
without first complying with all export control laws and regulations which may
be imposed by the U.S. Government and any country or organization of nations
within whose jurisdiction wherein Customer hosted by Exodus.
9.5 Non-Solicitation. During the period beginning on the
Installation Date and ending on the first anniversary of the termination or
expiration of this Agreement in accordance with its
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terms, Customer agrees that it will not, and will ensure that its affiliates do
not, directly or indirectly, solicit or attempt to solicit for employment any
person employed by Exodus during such period.
9.6 Governing Law; Resolution, Severability; Waiver. This Agreement
is made under and will be governed by and construed in accordance with the laws
of the State of California (except that body of law controlling conflicts of
law) and specifically excluding from application to this Agreement that law
known as the United Nations Convention on the International Sale of Goods. Any
dispute relating to the terms, interpretation or performance of this Agreement
(other than claims for preliminary injunctive relief or other pre-judgment
remedies) will be resolved at the request of either party through binding
arbitration. Arbitration will be conducted in Santa Xxxxx County, California,
under the rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request that JAMS appoint a single arbitrator
possessing knowledge of online services agreements; however, the arbitration
will proceed even if such a person is unavailable. In the event any provision of
this Agreement is held by a tribunal of competent jurisdiction to be contrary to
the law, the remaining provisions of this Agreement will remain in full force
and effect. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
9.7 Assignment; Notices. Neither party may assign its rights or
delegate its duties under this Agreement either in whole or in part without the
prior written consent of the other party, except that the parties may assign
this Agreement in whole as part of a corporate reorganization, consolidation,
merger, or sale of substantially all of its assets. Any attempted assignment or
delegation without such consent will be void. Notwithstanding the foregoing,
Exodus may assign this Agreement, in whole or in part, in connection with a
grant of security interest to lenders participating in a senior secured credit
facility. This Agreement will bind and inure to the benefit of each party's
successors and permitted assigns. Any notice or communication required or
permitted to be given hereunder may be delivered by hand, deposited with an
overnight courier, sent by confirmed facsimile, or mailed by registered or
certified mail, return receipt requested, postage prepaid, in each case to the
address of the receiving party indicated on the signature page hereof, or at
such other address as may hereafter be furnished in writing by either party
hereto to the other. Such notice will be deemed to have been given as of the
date it is delivered, mailed or sent, whichever is earlier.
9.8 Relationship of Parties. Exodus and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Exodus and
Customer. Neither Exodus nor Customer will have the power to bind the other or
incur obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided herein.
9.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
Page 11
12
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Customer's and Exodus' authorized representatives have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
Signature: /s/ XXXX XXXXXX Signature: /s/ XXX XXXXXX
------------------------ ---------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxx Xxxxxx
------------------------ ---------------------------
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13
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES ORDER FORM
SERVICES AND PRICES
Customer: N2H2
Form No. 0804-1
IMPORTANT INFORMATION:
(1) By submitting this Internet Data Center Services Order Form (Form) to
Exodus Communications, Inc. (Exodus), Customer hereby places an order for
the Internet Data Center Services described herein pursuant to the terms
and conditions of the Internet Data Center Services Agreement between
Customer and Exodus (IDC Agreement).
(2) Billing, with the exception of Setup Fees, will commence on the earlier of
the Installation Date indicated below or the date Customer actually
installs its equipment or Exodus begins providing Internet Data Center
Services. All Setup Fees will be billed upon receipt of a Customer signed
IDC Services Order Form.
(3) Exodus will provide the Internet Data Center Services pursuant to the
terms and conditions of the IDC Agreement, which incorporates this Form.
The terms of this Form supersede, and by accepting this Form Exodus
hereby rejects, any conflicting or additional terms provided by Customer
in connection with Exodus' provision of Internet Data Center Services. If
there is a conflict between this Form and any other Form provided by
Customer and accepted by Exodus, the Form with the latest date will
control.
(4) Exodus will not be bound by or required to provide Internet Data Center
Services pursuant to this Form or the IDC Agreement until each is signed
by an authorized representative of Exodus.
(5) Option 1 - Convenience:
Either party may terminate this Agreement for convenience at any time
after the first (1st) anniversary of the Installation Date by providing
ninety (90) days' prior written notice to the other party. From January 1,
1999 to the first (1st) anniversary of the Installation Date, Customer may
terminate this Agreement for convenience by providing forty five (45) days
written notice to Exodus, provided that if Customer exercises this option,
Customer shall pay Exodus any charges that Customer received during the
period from the Installation Date through the date of termination.
Option 2 - Performance
Should Customer terminate this Agreement for performance, Customer will be
liable to Exodus for all Fees incurred up to the date of termination.
CUSTOMER TO COMPLETE:
CUSTOMER HAS READ, UNDERSTANDS, AND HEREBY SUBMITS THIS ORDER.
Installation Date: 8/26/98
-----------------------
Submitted by: /s/ XXXX XXXXXX
----------------------------
(Authorized Signature)
Print Name: Xxxx Xxxxxx Submission Date: 8/31/98
------------------------------- ---------------
(Effective Date of IDC Agreement
Title: C.O.O.
------------------------------------
EXODUS COMMUNICATIONS, INC. ACCEPTANCE
__________________________ Date: __________________
(Authorized Signature)
14
Customer: N2H2
Form No.: 0804-1
Comments
The following billing schedule will apply:
MONTH BANDWIDTH FACILITIES TOTAL MRC NCR
----- --------- ---------- --------- ---
August * * * *
September * * * *
October * * * *
November * * * *
December * * * *
January - September 30/99 * * * *
Customer: [SIGNATURE ILLEGIBLE]
Exodus: JD
-------
COMPLETE THE FOLLOWING PAGE BEFORE SUBMITTING
Regards,
Xxxxxxx Xxxxx
Strategic Account Executive
Exodus Communications, Inc.
(000) 000-0000
(*) Information has been omitted pursuant to a request for confidential
treatment and has been filed separately with the Securities And Exchange
Commission.
