Exhibit 10.36
Exodus Communications, Inc.
Internet Data Center Services Agreement
This Internet Data Center Services Agreement (this "Agreement") is made
effective as of the Submission Date (March 31, 1999) indicated in the initial
Internet Data Center Services Order Form accepted by Exodus, by and between
Exodus Communications, Inc. ("Exodus") and the customer identified below
("Customer").
Parties:
Customer Name: INTERNET TRAVEL NETWORK
Address: 000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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 and
are approved by Customer ("Internet Data Center Services"). All IDC Services
Order Forms accepted by Exodus are incorporated herein by this reference, each
as of the Submission Date indicated in such form.
2. Fees and Billing.
2.1 Fees. Customer will pay all fees due according to the IDC Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services, other
than Setup Fees, indicated in the initial IDC Services Order Form shall commence
on the earlier to occur of (i) the "Installation Date" indicated in the initial
IDC Services Order Form, regardless of whether Customer has commenced use of the
Internet Data Center Services, unless Customer is unable to install the Customer
Equipment and/or use the Internet Data Center Services by the Installation Date
due to the fault of Exodus, then billing will not begin until the date Exodus
has remedied such fault and (ii) the date the "Customer Equipment" (Customer's
computer hardware and other tangible equipment, as identified in the Customer
Equipment List which is incorporated herein by this reference) is placed by
Customer in the "Customer Area" (the portion(s) of the Internet Data Centers, as
defined in Section 3.1 below, made available to Customer hereunder for the
placement of Customer Equipment) and is operational. All Setup Fees will be
billed upon receipt of a Customer signed IDC Services Order Form. In the event
that Customer orders additional Internet Data Center Services, billing for such
services shall commence on the date Exodus first provides such additional
Internet Data Center Services to Customer or as otherwise agreed to by Customer
and Exodus.
2.3 Billing and Payment Terms. Customer will be billed monthly in advance
of the provision of Internet Data Center Services, and payment of such fees will
be due within thirty (30) days of the date of each Exodus invoice. All payments
will be made in U.S. dollars. Late payments hereunder will accrue interest at a
rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed
by applicable law, whichever is lower.
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 use best efforts to comply at all times with all applicable laws
and regulations and Exodus' general rules and regulations relating to its
provision of Internet Data Center Services, as updated by Exodus from time to
time ("Rules and Regulations"). Customer acknowledges that Exodus exercises no
control whatsoever over the content of the information passing through its sites
containing the Customer Area and equipment and facilities used by Exodus to
provide Internet Data Center Services ("Internet Data Centers"), and that it is
the sole responsibility of Customer to ensure that the information it transmits
and receives complies with all applicable laws and regulations.
3.2 Customer's Costs. Customer agrees that it will be solely responsible,
and at Exodus's request will reimburse Exodus, for all costs and expenses (other
than those included as part of the Internet Data Center Services and except as
otherwise expressly provided herein) it incurs in connection with this
Agreement; provided that such costs have been identified and agreed to in
advance in writing by Customer.
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 resell Exodus' Internet Data
Center Services without Exodus' prior written approval. Customer's customers may
not have physical access to the Internet Data Center.
3.5 Insurance.
(a) Minimum Levels. Both parties will keep in full force and effect during
the term of this Agreement: (i) comprehensive general liability insurance in an
amount not less than $1 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.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, both parties will furnish each other with
certificates of insurance which evidence the minimum levels of insurance set
forth above.
(c) Naming Exodus as an Additional Insured. Both parties agrees that prior
to the installation of any Customer Equipment, such party will cause its
insurance provider(s) to name the other party as an additional insured and
notify Exodus in writing of the effective date thereof.
4. Confidential Information.
4.1 Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("Confidential Information").
Confidential Information will include, but not be limited to, each party's
proprietary software and customer information. Each party agrees that it will
not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third party
(except as required by law or to that party's attorneys, accountants and other
advisors as reasonably necessary), any of the other party's Confidential
Information and will take reasonable precautions to protect the confidentiality
of such information.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party without use of the other party's Confidential Information.
5. Representations and Warranties.
5.1 Warranties by Customer.
(a) Customer Equipment. Customer represents and warrants that it owns or
has the legal right and authority, and will continue to own or maintain the
legal right and authority during the term of this Agreement, to place and use
the Customer Equipment as contemplated by this Agreement. Customer further
represents and warrants that its placement, arrangement, and use of the Customer
Equipment in the Internet Data Center complies with the Customer Equipment
Manufacturer's environmental and other specifications.
(b) Customer's Business. Customer represents and warrants that Customer's
services, products, materials, data, information and Customer Equipment used by
Customer in connection with this Agreement as well as Customer's and its
permitted customers' and users' use of the Internet Data Center Services
(collectively, "Customer's Business") does not as of the Installation Date, and
will not during the term of this Agreement operate in any manner that would
violate any applicable law or regulation.
(c) Rules and Regulations. Customer has read the Rules and Regulations and
represents and warrants that Customer and Customer's Business are currently in
full compliance with the Rules and Regulations, and will remain in material
compliance with such Rules and Regulations at all times during the term of this
Agreement.
(d) Breach of Warranties. In the event of any material breach of any of
the foregoing warranties and such breach was caused by Customer's failure for
reasons within Customer's reasonable control, in addition to any other remedies
available at law or in equity, Exodus will have the right, in Exodus' sole
discretion, to suspend any related Internet Data Center Services, following
prompt written notice received by Customer and the provision of a period of at
least five (5) days in which to cure such breach, if such suspension of services
is deemed reasonably necessary by Exodus to prevent any material harm to Exodus
and its business.
5.2 Warranties and Disclaimers by Exodus.
5.2(a) Service Level Warranty. In the event Customer experiences
any of the following and 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
Nonstandard Internet Travel Network 4/8/99
EXODUS COMMUNICATIONS, INC. CONFIDENTIAL AND PROPRIETARY (rev 6/98)
inactions of Customer or any third parties (including Customer Equipment and
third party equipment), Exodus will, upon Customer's request in accordance with
paragraph (iii) below, credit Customer's account as described below:
(i) Inability to Access the Internet (Downtime). If Customer
is unable to transmit and receive information from Exodus' Internet Data Centers
(i.e., Exodus' LAN and WAN) to other portions of the Internet because Exodus
failed to provide the Internet Data Center Services for more than fifteen (15)
consecutive minutes, Exodus will credit Customer's account the pro-rata
connectivity charges (i.e., all bandwidth related charges) for one (1) day of
service, up to an aggregate maximum credit of connectivity charges for seven (7)
days of service in any one calendar (1) month. Exodus' scheduled maintenance of
the Internet Data Centers and Internet Data Center Services, as described in the
Rules and Regulations, shall not be deemed to be a failure of Exodus to provide
Internet Data Center Services. For purposes of the foregoing, "unable to
transmit and receive" shall mean sustained packet loss in excess of 50% based on
Exodus' measurements.
(ii) Packet Loss and Latency. Exodus does not proactively
monitor the packet loss or transmission latency of specific customers. Exodus
does, however, proactively monitor the aggregate packet loss and transmission
latency within its LAN and WAN. In the event that Exodus discovers (either from
its own efforts or after being notified by Customer) that Customer is
experiencing packet loss in excess of one percent (1%) ("Excess Packet Loss") or
transmission latency in excess of 120 milliseconds round trip time (based on
Exodus' measurements) between any two Internet Data Centers within Exodus' U.S.
network (collectively, "Excess Latency", and with Excess Packet Loss "Excess
Packet Loss/Latency"), and Customer notifies Exodus (or confirms that Exodus has
notified Customer), Exodus will take all actions necessary to determine the
source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet
Loss/Latency; Notification of Customer. Within two (2) hours of discovering the
existence of Excess Packet Loss/Latency, Exodus will determine whether the
source of the Excess Packet Loss/Latency is limited to the Customer Equipment
and the Exodus equipment connecting the Customer Equipment to Exodus' LAN
("Customer Specific Packet Loss/Latency"). If the Excess Packet Loss/Latency is
not a Customer Specific Packet Loss/Latency, Exodus will determine the source of
the Excess Packet Loss/Latency within two (2) hours after determining that it is
not a Customer Specific Packet Loss/Latency. In any event, Exodus will notify
Customer of the source of the Excess Packet Loss/Latency within sixty (60)
minutes after identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the
Excess Packet Loss/Latency remedy is within the sole control of Exodus, Exodus
will remedy the Excess Packet Loss/Latency within two (2) hours of determining
the source of the Excess Packet Loss/Latency. If the Excess Packet Loss/Latency
is caused from outside of the Exodus LAN or WAN, Exodus will notify Customer and
will use commercially reasonable efforts to notify the party(ies) responsible
for the source and cooperate with it(them) to resolve the problem as soon as
possible.
(C) Failure to Determine Source and/or Resolve
Problem. In the event that Exodus is unable to determine the source of and
remedy the Excess Packet Loss/Latency within the time periods described above
(where Exodus was solely in control of the source), Exodus will credit
Customer's account the pro-rata connectivity charges for one (1) day of service
for every two (2) hours after the time periods described above that it takes
Exodus to resolve the problem, up to an aggregate maximum credit of connectivity
charges for seven (7) days of service in any one (1)month.
(iii) Customer Must Request Credit: To receive any of the
credits described in this section 5.2(a), Customer must notify Exodus within
fifteen (15) business days from the time Customer becomes eligible to receive a
credit. Failure to comply with this requirement will forfeit Customer's right to
receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit: In the
event that Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be entitled
to receive only the maximum single credit available for such event. In no event
will Exodus be required to credit Customer in any one (1) calendar month
connectivity charges in excess of seven (7) days of service. A credit shall be
applied only to the month in which there was the incident that resulted in the
credit. Customer shall not be eligible to receive any credits for periods in
which Customer received any Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems: If, in any single
calendar month, Customer would be able to receive credits totaling fifteen (15)
or more days (but for the limitation in paragraph (iv) above) resulting from
three (3) or more events during such calendar month or, if any single event
entitling customer to credits under paragraph 5.2(a)(i) exists for a period of
eight (8) consecutive hours, then, Customer may immediately terminate this
Agreement for cause and without penalty by notifying Exodus. Termination will be
effective upon receipt of notice by Exodus.
This warranty does not apply to any Internet data center services that expressly
exclude this warranty (as described in the specification sheets for such
products). This Section 5.2(a) states customer's sole and exclusive remedy for
any failure by Exodus to provide Internet Data Center Services.
(b) No Other Warranty. Except for the express warranty set out in
subsection (a) above and (d) below, the Internet Data Center Services are
provided on an "as is" basis, and Customer's use of the Internet Data Center
Services is at its own risk. Exodus does not make, and hereby disclaims, any and
all other Express and/or implied warranties, including, but not limited to,
warranties of merchantability, fitness for a particular purpose, noninfringement
and title, and any warranties arising from a course of dealing, usage, or trade
practice. Exodus does not warrant that the Internet Data Center Services will be
uninterrupted, error-free, or completely secure.
(c) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Exodus does not and cannot control the flow of data to or from Exodus'
Internet Data Centers and other portions of the internet. Such flow depends in
large part on the performance of internet services provided or controlled by
third parties. At times, actions or inactions caused by these third parties can
produce situations in which Exodus' 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.
(d) Exodus represents and warrants that it has the legal right and
authority, and will continue to maintain the legal right and authority during
the term of this Agreement, to provide the Internet Data Center Services as
contemplated by this Agreement.
Exodus represents and warrants that Exodus' Internet Data Center Services,
products, materials, data, information used by Customer in connection with this
Agreement do 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. Exodus represents and warrants that a) the Internet Data Center
Services will be "ADA compliant" including without limitation providing at least
36 inches of space between rack aisles and racks and b) that the Internet Data
Center will be kept at all times at temperatures at or below seventy-three
degrees farenheit. In the event of a breach of this subsection (d), Customer
shall provide written notification to Exodus with thirty (30) days to cure.
Customer's sole remedy for failure to cure such breach is termination.
6. Limitations of Liability.
6.1 Personal Injury. Each Representative and any other persons visiting
the Internet Data Centers does so at its own risk and Exodus assumes no
liability whatsoever for any harm to such persons resulting from any cause other
than exodus' negligence or willful misconduct resulting in personal injury to
such persons during such a visit.
6.2 Damage to Customer Equipment or Business. Exodus assumes no liability
for any damage to, or loss relating to, Customer's Business resulting from any
cause whatsoever. Certain Customer Equipment, including but not limited to
Customer Equipment located on CyberRacks, may be directly accessible by other
customers. Exodus assumes no liability for any damage to, or loss of, any
Customer Equipment resulting from any cause other than exodus' 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 replacement value of the Customer Equipment.
6.3 Exclusions. Except as specified in Sections 6.1 and 6.2, in no event
will Exodus be liable to Customer, any Representative, or any third party for
any claims arising out of or related to this Agreement, Customer Equipment,
Customer's Business or otherwise, and any lost revenue, lost profits,
replacement goods, loss of technology, rights or services, incidental, punitive,
indirect or consequential damages, loss of data, or interruption or loss of use
of service or of any Customer Equipment or Customer's Business, even if advised
of the possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise.
6.4 Maximum Liability. Notwithstanding anything to the contrary in this
Agreement, Exodus's maximum aggregate liability to Customer related to or in
connection with this Agreement will be limited to the total amount paid by
Customer to Exodus hereunder for the prior Twelve (12) month period.
6.5 Customer's Insurance. [Intentionally omitted]
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus has set its prices and entered into this Agreement in
reliance upon the limitations of liability and the disclaimers of warranties and
damages set forth herein, and that the same form an essential basis of the
bargain between the parties. The parties agree that the limitations and
exclusions of liability and disclaimers specified in this Agreement will survive
and apply even if found to have failed of their essential purpose.
7. Indemnification.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify, defend and
hold Customer harmless from and against any and all costs, liabilities, losses,
and expenses (including, but not limited to, reasonable attorneys' fees)
(collectively, "Losses") resulting from any claim, suit, action, or proceeding
(each, an "Action") brought against Customer alleging (i) the infringement of
any intellectual property rights (but excluding any infringement contributorily
caused by Customer's Business or Customer Equipment) and (ii) personal injury to
Customer's Representatives from Exodus's negligence or willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify, defend
and hold Exodus, its affiliates and customers harmless from and against any and
all Losses resulting from or arising out of any Action brought against Exodus,
its affiliates or customers by third parties alleging claims: (a) with respect
to the Customer's Business: (i) infringement or misappropriation of any
intellectual property rights (but excluding any infringement contributorily
caused by Exodus' Internet Data Center Services; (ii) defamation, libel,
Nonstandard Internet Travel Network 4/8/99
EXODUS COMMUNICATIONS, INC. CONFIDENTIAL AND PROPRIETARY (rev 6/98)
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; and (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.
7.3 Notice. Each party will provide the other party prompt written notice
upon of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
8. Term and Termination.
8.1 Term. This Agreement will be effective for a period of six months (6)
from the Installation Date, unless earlier terminated according to the
provisions of this Section 8. The Agreement will automatically renew for
additional terms of six (6) months each. Customer will be allowed the option to
renew this contract for an additional period of two years.
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) six month anniversary of
the Installation Date by providing sixty (60) days' prior written notice to the
other party at any time thereafter.
(b) (b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or
condition of this Agreement and fails to cure such breach within
thirty (30) days after receipt of written notice of the same, except
in the case of failure to pay fees, which must be cured within five
(5) days after receipt of written notice from Exodus; (ii) the other
party becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or (iii) the
other party becomes the subject of an involuntary petition in
bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing.
8.3 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with its
terms.
8.4 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Exodus will immediately cease providing the
Internet Data Center Services; (b) any and all payment obligations of Customer
under this Agreement will become due immediately; (c) within sixty (60) 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 as soon as possible but within seven (7) 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 seven (7) period, Exodus will have the
option to (i) move any and all such property to secure storage and charge
Customer for the cost of such removal and storage, and/or (ii) liquidate the
property in any reasonable manner.
8.5 Customer Equipment as Security. [Intentionally Omitted]
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. Miscellaneous Provisions.
9.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this Agreement
due to any cause beyond its reasonable control, including act of war, acts of
God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that the delayed party:
(a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
9.2 No Lease. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property. Customer
acknowledges and agrees that (i) it has been granted only a license to occupy
the Customer Space and use the Internet Data Centers and any equipment provided
by Exodus in accordance with this Agreement, (ii) Customer has not been granted
any real property interest in the Customer Space or Internet Data Centers, and
(iii) Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations, or ordinances. For good cause, including the
exercise of any rights under Section 8.5 above, Exodus may suspend the right of
any Representative or other person to visit the Internet Data Centers.
9.3 Marketing. Customer agrees that Exodus may refer to Customer by trade
name and trademark, and may briefly describe Customer's Business, in Exodus'
marketing materials and web site. Customer hereby grants Exodus a license to use
any Customer trade names and trademarks solely in connection with the rights
granted to Exodus pursuant to this Section 9.3.
9.4 Government Regulations. Customer will not export, re-export, transfer,
or make available, whether directly or indirectly, any regulated item or
information to anyone outside the U.S. in connection with this Agreement without
first complying with all export control laws and regulations which may be
imposed by the U.S. Government and any country or organization of nations within
whose jurisdiction Customer operates or does business.
9.5 Non-Solicitation. During the period beginning on the Installation Date
and ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, Customer agrees that it will not
intentionally solicit or attempt to solicit for employment any persons employed
by Exodus during such period.
9.6 Governing Law; Dispute Resolution, Severability; Waiver. This
Agreement is made under and will be governed by and construed in accordance with
the laws of the State of California (except that body of law controlling
conflicts of law) and specifically excluding from application to this Agreement
that law known as the United Nations Convention on the International Sale of
Goods. Any dispute relating to the terms, interpretation or performance of this
Agreement (other than claims for preliminary injunctive relief or other pre-
judgment remedies) will be resolved at the request of either party through
binding arbitration. Arbitration will be conducted in Santa Xxxxx County,
California, under the rules and procedures of the Judicial Arbitration and
Mediation Society ("JAMS"). The parties will request that JAMS appoint a single
arbitrator possessing knowledge of online services agreements; however the
arbitration will proceed even if such a person is unavailable. In the event any
provision of this Agreement is held by a tribunal of competent jurisdiction to
be contrary to the law, the remaining provisions of this Agreement will remain
in full force and effect. The waiver of any breach or default of this Agreement
will not constitute a waiver of any subsequent breach or default, and will not
act to amend or negate the rights of the waiving party.
9.7 Assignment; Notices. 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 either party 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. 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.
Notwithstanding the above, 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 syndicated by Xxxxxxx, Xxxxx and Co.
9.8 Relationship of Parties. Exodus and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Exodus and
Customer. Neither Exodus nor Customer will have the power to bind the other or
incur obligations on the other's behalf without the other's prior written
consent, except as otherwise expressly provided herein.
9.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
Customer's and Exodus' authorized representatives have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
Signature: /s/ Xx Xxxxxx Signature: /s/ Xxx Xxxxxx
--------------------- -------------------
Print Name: Xx Xxxxxx Print Name: Xxx Xxxxxx
--------------------- -------------------
Title: CTO Title: 5/4/99
--------------------- -------------------
Nonstandard Internet Travel Network 4/8/99
EXODUS COMMUNICATIONS, INC. CONFIDENTIAL AND PROPRIETARY (rev 6/98)
Internet Travel Networks
Data Center Solution
Order Form
Customer: Internet Travel Network
Date: March 31, 1999
Form: 0000-XX
Xxxxx Xxxxx IDC Services:
------------------------
------------------------------------------------------------------------------------------------------------
Product Number Description Qty. Unit Non- ITN
(Detailed description attached) Price recurring Monthly
------------------------------------------------------------------------------------------------------------
EXO-RACK-100 CyberRack (19" or 23" Full-Rack)* 60 $ 950 $57,000
------------------------------------------------------------------------------------------------------------
EXO-RACK-100SU CyberRack Setup 60 $ 825 $49,500
------------------------------------------------------------------------------------------------------------
EXO-FAST-U5 5 Mbps base Fast Ethernet with 100 1 $3,250 $ 3,250
Mbps burstability.**
------------------------------------------------------------------------------------------------------------
EXO-FAST-SU Fast Ethernet Setup 1 $3,850 $ 3,850
------------------------------------------------------------------------------------------------------------
EXO-BGP-30 BGP Setup 1 $1,500 $ 1,500
------------------------------------------------------------------------------------------------------------
EXO-XCON-RDDS3 DS3 Cross-connection 1 $ 550 $ 550
------------------------------------------------------------------------------------------------------------
EXO-XCON-RTI TI Cross-connection 3 $ 550 $ 1,650
------------------------------------------------------------------------------------------------------------
EXO-POWER-SU Power Circuit Setup 4 N/A N/A
------------------------------------------------------------------------------------------------------------
EXO-POWER-30 30 Amp Power Circuit--208V 4 $ 400 $ 1,600
------------------------------------------------------------------------------------------------------------
EXO-CSLT-OS System Administration (Hourly) 1 $ 125 $ 125
------------------------------------------------------------------------------------------------------------
Total $57,175 $61,850
------------------------------------------------------------------------------------------------------------
COMMENTS: ITN has first right of refusal for the space behind the existing wall
next to their pre-determined cage location. ITN will have one week following
written notification (of availability of the adjacent space behind the wall) to
commit to the amount of space desired before this first right of refusal will
become null and void. This pre-determined cage location is reserved for ITN only
if this order is signed and submitted on or before March 31, 1999. Installation
charges for above services under "Santa Xxxxx Services" will be billed based on
a standard configuration and shall include products outlined below. Cage spacing
is based on mutually agreed upon terms. Additional 20 amp circuits are available
at $260 setup fee each, $299 per month. Above pricing is valid for DC and Santa
Xxxxx IDCs for 12 months. This order is contingent upon ITN and Exodus reaching
mutual agreement on the terms and conditions of the IDC agreement and of the
floor layout.
CUSTOMER'S INITIALS AW
--
*Specifications to be included in the pricing for each rack of ITN Data Center
Space:
* Secure Area
* 1 Rack
* 4 Shelves
* Wiring Channels
* Wiring Patch Panel
* Power Distribution Bar
* 1 POTS line cross connect
* 1 Dedicated 20 Amp Power Circuits
All installation, equipment and service fees, above the standard configuration
shall be charged to ITN at a rate of Exodus cost plus 5%.
**Bandwidth usage above the 1 Mbps base will be billed under the terms described
below for "Bandwidth Billing Model"
BANDWIDTH BILLING MODEL
-----------------------
Exodus Communications will provide 1 Mbps Fast Ethernet Connections to ITN's
colocation environment within Exodus Internet Data Center. On a monthly basis,
Exodus will take the sum bandwidth of the connections and apply it to the usage
measurement described below.
Variable Usage above 1 Mbps shall be billed on the following:
--------------------------------------------------------------------------------
Product Number Description QTY. ITN Price
--------------------------------------------------------------------------------
EXO-FAST-VU10 Variable Usage Cost per Megabit Above 5 Per $650
Mbps Base Amount ($/megabit) for 1 to 25 Megabit
Mbps Base
See note below
--------------------------------------------------------------------------------
All bandwidth services provide full duplex, switch port connections. In
addition, daily web based bandwidth reporting is included for all products. ITN
will be billed for additional bandwidth used based on the 95% bandwidth
measurement and billing policy.
95% Usage Based Bandwidth Measurement:
-------------------------------------
The Exodus monitoring system will record 5 minute average samples of the total
line usage (input and output) of your co-location network line over a period of
a month. At the end of the month the samples are sorted and the top 5% samples
of the total line usage are discarded. The highest remaining value is used as
the basis for the bandwidth usage rate for that month and is referred to as the
"95 percentile".
CUSTOMER'S INITIALS /s/ AW
--
EXODUS COMMUNICATIONS, INC. PROPRIETARY AND CONFIDENTIAL
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES ORDER FORM
SERVICES AND PRICES
Customer Name: Internet Travel Network
Form Date: 3/31/99
Form No.: 0331-KH
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 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.
Customer to complete:
--------------------
CUSTOMER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Installation Date: April 8, 1999
------------------------
Submitted By: /s/ Xx Xxxxxx Submission Date: March 31, 1999
------------------------ (Effective Date of IDC Agreement)
(Authorized Signature)
Print Name: Xx Xxxxxx
------------------------
Title: CTO
------------------------
Exodus Communications, Inc. Acceptance
--------------------------------------
/s/ Xxx Xxxxxx Date: 5/4/99
-------------------------- ------------------
(Authorized
