EXHIBIT 10.12
EXODUS COMMUNICATIONS, INC.
INTERNET SERVICES AND PRODUCTS AGREEMENT
This Agreement defines the terms and conditions between Exodus Communications,
Inc., (hereafter referred to as "EXODUS") and eBay (hereafter referred to as
"CUSTOMER") whereby Exodus provides value-added Internet services and related
products to Customer.
1. Exodus will provide the following services and products at the prices shown
(see Addenda for additional services):
Connection Type__________ Usage Level____ Price________ Billing Period________
One Time Installation Cost Price________
Telco Connection provided by:______________ Price________ Billing Period________
One Time Installation Cost Price________
Other:____________________________ Price________ Billing Period________
Other:____________________________ Price________ Billing Period________
Equipment: see Attachment A (if applicable) Price________
Request for Service _____________________ SEE CO-LOCATION ADDENDUM
Date
Exodus will not increase prices for services provided during the Billing Period
identified above. Exodus reserves the right to change prices beyond the billing
period upon notice to Customer 30 days in advance of any change. All prices are
exclusive of any tax, levy customs duty, import tax or similar governmental
charge that may be assesses by any jurisdiction. All such taxes are the
responsibility of Customer.
2. The term of this Agreement is for one year from the date Internet access is
connected, Customer may cancel within the first 30 days without penalty,
thereafter it is non cancelable, and will automatically renew yearly
thereafter, unless 60 day advanced notice is given by either party prior to
this agreement's anniversary date. Customer may cancel with 30 day advance
notice if Customer can show that Exodus has failed to provide commercially
reasonable service levels or price increases (if any) are not acceptable to
Customer. At that time Exodus connection service is installed or product is
shipped, Exodus will invoice the Customer. Payments for subsequent billing
periods will be issued in advance of the provision of service. Invoices are
due upon receipt.
3. Exodus makes no warranty of any kind with respect to services and products
provided under this Agreement. Exodus DISCLAIMS ALL WARRANTIES, EXPRESS AND
IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE DOMAIN NAMES
OBTAINED FOR CUSTOMERS, SERVICES, OR ANY
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INFORMATION OBTAINED THROUGH THE SERVICES. In situation involving
performance or nonperformance of services or products furnished under this
Agreement, Customer's sole remedy shall be: in the case of products,
repair, or return of the defective product to Exodus for refund, at the
discretion of Exodus. In the case of services, refund of a prorata potion
of the price paid for services which were not provided. Credit will only be
issued for periods of lost service greater than 24 hours.
4. Exodus will not be liable for any damages Customer may suffer arising out
of acts of God, use or inability to use, Exodus' Internet services or
related products unless such damages are caused by an intentional and
willful act of Exodus. In no event shall Exodus be liable for unauthorized
access to Customer's transmission facilities or Customer premise equipment
or for unauthorized access to or alteration, theft or destruction of
Customer's data files, programs, procedure or information through accident,
fraudulent means or devices, or any other method. Exodus will not be liable
for indirect, incidental, special or consequential damages for any lost
property or data of Customer. Exodus' liability for damages to Customer for
any cause whatsoever, regardless of form of action, including negligence,
shall not exceed and amount equal to the price of products and services
purchased by Customer during the twelve month period preceding the event
which caused the damages or injury.
5. Exodus will indemnify and hold Customer harmless against any claims or
demand by any third party that any hardware or software provided by Exodus
to Customer hereunder, infringes any U.S. copyright or patent. Except for
such indemnity, Customer agrees to indemnify and hold Exodus harmless
against any claim or demand by any third party due to or arising out of the
use by Customer of Internet services and related products provided
hereunder.
6. Customer is solely responsible for the content of any transmissions any
Customer and any third party utilizing customer's facilities or Exodus'
facilities. Use of other organization's network or computing resources are
subject to their respective permission and usage policies. Customer agrees
to comply with all applicable laws with regard to the transmission and use
of information and content, solicitation of any activity that is prohibited
by applicable law over Internet. Customer further agrees not to use the
Internet service for illegal purposes, to interfere with or disrupt other
network users, network services or network equipment. Customer shall be
liable for and shall indemnify and defend EXODUS from and against any
claims in anyway arising from or related to (i) the alleged infringement of
patent, trademark, design, copyright or any other intellectual property
rights in relation to the Customer's use of the services and (ii) Customer
use or inclusion of any information, photographs, art work or other content
(including without limitation claims based on invasion of privacy, right of
publicity, the Communications Decency Act of 1996, obscenity or
pornography, and the violation of any states or ordinances or other laws).
7. Customer understands that Internet use, and related products and services
provided under this Agreement, may require registration and related
administrative reports which are public in nature. In addition Customer
agrees Exodus may include its name in directories of Exodus customers.
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8. Unless otherwise authorized in writing by Exodus and attached as an Addenda
to this agreement, Customer shall limit access to and use of the Internet
connecting services to its employees solely for Customer's business
purposes and shall not resell or otherwise generate income by providing
access to the Internet service to third parties. Customer's right to use
the Internet services and products provided hereunder is limited to
Customer and is nontransferable.
9. Failure by the Customer to comply with the terms of this agreement will
result in immediate termination of Exodus Internet services.
10. Customer agrees not to export or re-export (including by way of electronic
transmission), directly or indirectly, any software or technical data
through the Internet services without first obtaining any required export
license or governmental approval.
11. This Agreement, together with any Addenda, constitute the entire agreement
of the parties with respect to the services and product provided hereunder
and supersede any prior agreements. These terms and conditions shall
prevail notwithstanding any different or additional terms and conditions in
any forms provided by Customer. No waiver of any rights hereunder shall be
deemed to be a waiver of the same right on any other occasion. This
Agreement shall be governed by the laws of the State of California without
regards to conflicts of law principles.
THESE TERMS AND CONDITIONS HAVE BEEN READ, ARE UNDERSTOOD, AND ARE HEREBY
ACCEPTED.
/s/ XXXXXXX X. XXXXXX 5/2/97 /s/ ILLEGIBLE
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Customer Representative Date Exodus Representative Date
(Signature) (Signature)
XXXXXXX X. XXXXXX
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Name Name
VP PRODUCT DEVELOPMENT
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Title Title
EXODUS COMMUNICATIONS
REGISTRATION FORM
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EXODUS COMMUNICATIONS, INC.
CO-LOCATION ADDENDUM
TO
INTERNET SERVICES AND PRODUCTS AGREEMENT
This CO-LOCATION ADDENDUM is part of the INTERNET SERVICES AND PRODUCTS
AGREEMENT ("Internet Services Agreement") effective as of May 1, 1997, between
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Exodus Communications, Inc. ("Exodus") and you ("Customer").
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The following additional terms and conditions apply under this Addendum.
1. Co-Located Equipment and Fees
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"Equipment" Description _______________________________
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"Facility" Description 1 Full Rack
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Co-location Connection Type 10M Dedicated
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Connection Fee $1,000.00 NRC/$5,000.00 Billing Period: Monthly
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Facility Fee $750.00 NRC/$750.00 MRC Billing Period: Monthly
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# Access Cards (3 max) 3 @ $100/card
-
Other Charges $_________________________________
Request for Service 5/7/97
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Date
2. Installation; Maintenance; Removal. Exodus agrees to allow Customer to
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place the Equipment in the Facility subject and subordinate to the terms and
provisions of Exodus' lease with its landlord. Such placement shall be subject
to this Addendum and Exodus' installation and maintenance specifications (the
"Specifications"), which Exodus shall provide to Customer from time to time and
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Customer agrees to comply therewith. Customer agrees that it will be solely
responsible, and at Exodus' request will reimburse Exodus, for all costs and
expenses associated with placing, installing, maintaining, operating and
removing the Equipment and related materials, including but not limited to, all
necessary preparations required to comply with the Specifications, costs
associated including but not limited to, all necessary preparations required to
comply with the Specifications, costs associated with relocation or removal of
the Equipment once installed, all electric, telephone and other utility charges
attributable to the Equipment and related use of the Facility, and all taxes or
other government fees arising from or related to the performance of Exodus'
obligations under this Addendum. Customer further agrees that upon termination
of this Addendum, Customer will leave the Facility in as good condition as it
was in at the beginning of the term of this Addendum, and will remove the
Equipment and any property which is obligated or permitted to remove prior to
the termination date.
3. Security. Exodus will maintain the Facility at its premises which will
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be staffed by an Exodus employee at all times. The Exodus employee will require
all visitors to the premises to sign a sign-in sheet and specify the reason for
their visit. Customer acknowledges that Exodus will allow representatives of Co-
location customers unlimited and unsupervised access to their respective
facilities, and such facilities may be located with and immediately accessible
to other customer's facilities, including Customer's Facility.
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Exodus will take reasonable measures to protect the security of each customer's
facility and equipment, including the measures described in this Section 3.
Notwithstanding such actions, EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE OR LOSS
TO CUSTOMER'S FACILITY AND/OR EQUIPMENT RESULTING FROM ANY OTHER CUSTOMER'S
ACCESS TO ITS FACILITY OR EXODUS' PREMISES. ANY SUCH DAMAGE OR LOSS WILL BE THE
EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER WHO CAUSED AND THE CUSTOMER WHO
INCURRED SUCH LOSS OR DAMAGE. Exodus will provide reasonable assistance to
resolve any disputes regarding such losses or damages.
4. Access. Exodus hereby grants Customer's representatives listed below
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(the "Representatives") unlimited access, twenty-four (24) hours per day, seven
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(7) days per week, to the Facility. Access will be via Access Cards and is
limited to the Representatives. Whenever Customer requires access to the
Facility for persons other than its Representatives, Customer shall give Exodus
twenty-four (24) hours prior notice by calling Exodus at a phone number to be
provided by Exodus and requesting Exodus to arrange for such access. Customer
shall reimburse Exodus for all extraordinary costs incurred by Exodus in
arranging such access. EACH REPRESENTATIVES AND ANY OTHER PERSONS ACCESSING THE
FACILITY MUST SIGN A SIGN-IN SHEET AND ACCESS THE FACILITY AT THEIR OWN RISK AND
EXODUS ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS OR DAMAGE TO
PROPERTY BROUGHT BY SUCH PERSONS TO THE FACILITY. Customer's Representatives
are:
Name: XXXXXX XXXXXXX Title: CEO
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Name: XXXXXXX XXXXXX Title: VP PRODUCT DEVELOPMENT
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Name: XXXX XXXXX Title: ENGINEER
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1. Condition of Premises/Limitation of Liability. CUSTOMER HEREBY ACCEPTS
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THE FACILITY IN AN "AS IS" CONDITION at the commencement of the term of this
Addendum, and acknowledges that Exodus has no obligation to make alterations,
improvements or additions, decorations or changes within the Facility or any
part thereof. Exodus may be required to relocate the Equipment within its
premises during the term of this Addendum, and Customer authorizes Exodus to
take such action provided Exodus does not disrupt or otherwise impair Customer's
service without first notifying Customer of such planned relocation. CUSTOMER
ACKNOWLEDGES AND AGREES THAT EXODUS SHALL NOT BE LIABLE FOR ANY COSTS, EXPENSES
OR OTHER DAMAGES INCURRED BY CUSTOMER OR ANY THIRD PARTY AS A RESULT OF THE
PERFORMANCE OF EXODUS' OBLIGATIONS PURSUANT TO THIS ADDENDUM OR OTHERWISE
RELATED TO THE EQUIPMENT, EXCEPT AS A RESULT OF EXODUS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. IN NO EVENT WILL EXODUS BE LIABLE TO CUSTOMER FOR ANY
DAMAGES OR LOSSES DUE TO THE FAILURE OR MALFUNCTION OF THE EQUIPMENT LOCATED IN
THE FACILITY. Notwithstanding the foregoing, and without imposing any duty or
obligation on Exodus, Exodus will endeavor to protect the Facility and Equipment
from damage and will notify Customer promptly of any problems or anticipated
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problems related thereto and identified by Exodus. TO THE EXTENT EXODUS IS
LIABLE FOR ANY DAMAGE TO CUSTOMER'S EQUIPMENT FOR ANY REASON, SUCH LIABILITY
WILL BE LIMITED SOLELY TO THE EQUIPMENT LISTED ABOVE.
2. Rights to Equipment; Insurance. Customer represents, warrants and
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covenants that it owns or has the legal right and authority, and will continue
to own or secure the legal right and authority, during the term of this
Addendum, to use the Equipment and Facility as contemplated by this Addendum.
Customer further covenants and agrees to keep in force and effect during the
term of this Addendum for the benefit of Exodus, Exodus' landlord and Customer,
a policy of comprehensive liability insurance conforming to the requirements of
the applicable provisions of Exodus' lease of the premises containing the
Facility, as presented by Exodus to Customer from time to time.
3. Customer's Responsibility for Losses or Damages; Indemnification.
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Customer will be liable to Exodus, Exodus' landlord, other co-location
customers, their respective officers, directors, suppliers, agents, employees
and consultants, for any losses, damages or costs resulting from Customer's
actions or inactions relating to or arising under this Addendum, including
damage caused by Customer's Equipment or resulting from Customer's access to the
Facility. Customer covenants and agrees to indemnify, defend and hold Exodus,
Exodus' landlord, other co-location customers, their respective officers,
directors, suppliers, agents, employees and consultants harmless from and
against any and all costs, liabilities, suits, actions, claims, damages, charges
and expenses, including reasonable attorney fees, resulting from Customer's
Equipment or use of or access to the Facility, unless arising from the willful
misconduct of Exodus.
4. Casualty or Eminent Domain. In the event of taking by eminent domain or
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damage by fire or other casualty to the Facility, Customer shall acquiesce and
be bound by any action taken by or agreement entered into between Exodus and its
landlord with respect thereto.
5. Not a Lease. This Co-location Addendum is a services agreement and is
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not intended to and will not constitute a lease of real property. Customer
acknowledges and agrees that it has no rights as a tenant or otherwise under any
real property and/or landlord/tenant laws, regulations or ordinances. Upon
termination of this Addendum for any reason, Exodus will have the right to
remove immediately all of Customer's Equipment located at the Facility.
6. Entire Agreement. Exodus and Customer agree that the terms and
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conditions of the Internet Services Agreement and any prior addenda thereto are
hereby incorporated by reference and made a part hereof to the same extent as if
such terms and conditions were set forth in full herein. To the extent that any
terms and conditions in this Addendum conflict with the terms and conditions in
the Internet Services Agreement or prior addenda thereto, the terms and
conditions of this Addendum will supersede any conflicting prior terms and
conditions.
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THESE TERMS AND CONDITIONS HAVE BEEN READ, ARE UNDERSTOOD, AND ARE HEREBY
ACCEPTED.
CUSTOMER EXODUS COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXXXX By: /s/ ILLEGIBLE
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Authorized Signature
Name: XXXXXXX XXXXXX Name:
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Title: VP PRODUCT DEVELOPMENT Title:
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Date: 5/2/97 Date:
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(This is the effective date of this
addendum) 10/96
eBay, Inc.
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Customer Business Name
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