Exhibit 10.9
SAVVIS MASTER CUSTOMER AGREEMENT
This SAVVIS Master Customer Agreement ("Agreement") is made as of this
19th day of 2002 ("Effective Date") between SAVVIS Communications Corporation, a
Missouri corporation, with a principal place of business at 0 XXXXXX Xxxxxxx,
Xxxx & Xxxxxxx, XX 00000 ("SAVVIS") and Atomica, a Delaware corporation with a
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
("Customer").
RECITALS:
A. Customer and Intel Online Services, Inc. ("IOS') are parties to
that certain agreement attached hereto as Schedule A (the "IOS/Customer
Agreement").
B. Customer and IOS desire SAVVIS to provide to Customer the services
previously provided by IOS to Customer under the IOS/Customer Agreement subject
to and on the terms and conditions of this Agreement
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Recitals are hereby incorporated into this Agreement by
reference.
2. Effective as of the Effective Date, except as otherwise
provided under this Agreement, the terms of this Agreement will be identical to
the terms and conditions provided under the IOS/Customer Agreement as if SAVVIS
were acting as IOS and Customer were acting as the customer thereunder;
provided, however, SAVVIS is not an assignee or a successor of IOS relative to
the IOS/Customer Agreement and is not assuming any obligations or liabilities
whatsoever of IOS under the IOS/Customer Agreement.
3. The terms and conditions of the attached IOS/Customer
Agreement, as between SAVVIS and Customer, are modified as follows:
(i) all pricing for services set forth in the
IOS/Customer Agreement is replaced in its entirety with the pricing set forth on
Schedule B hereto;
(ii) the non-disclosure and confidentiality provisions of
the IOS/Customer Agreement is replaced with the non-disclosure and
confidentiality provisions set forth in Schedule C hereto; and
(iii) additional terms and conditions particular to this
Agreement and not set forth in or conflicting with the IOS/Customer Agreement
shall beset forth on Schedule D hereto and incorporated into this Agreement by
reference.
(iv) the new term is set forth in Schedule D to this
Agreement
In addition, any terms and conditions in the IOS/Customer Agreement that
are inconsistent with the terms or condition provided in this Agreement are null
and void.
4. This Agreement is contingent upon IOS and Customer
executing and delivering to each other a Termination and Release Agreement.
5. This Agreement, together with all Schedules attached and as
in the future may be mutually agreed by SAVVIS and Customer is the entire
agreement of the parties hereto and is binding upon and inures to the benefit of
the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxx Xxxx
--------------------------------------------
Print Name:
------------------------------------
Xxxxx Xxxx
Title:
-----------------------------------------
EVP, General Manager of the Americas
Atomica Corporation
By /s/ Xxxx Xxxxxxxxx
---------------------------------------------
Print Name: Xxxx Xxxxxxxxx
------------------------------------
Title: VP, Finance
-----------------------------------------
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Schedule A
IOS/Customer MCA
(Attached)
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INTEL ONLINE SERVICES
MASTER CUSTOMER AGREEMENT
This Master Customer Agreement ("Agreement") is made this 8 day of
November 2001 (the "Effective Date") between Intel Online Services, Inc., a
Delaware corporation with a principal address at 0000 Xxxxxxx Xxxxxxx Xxxx.,
Xxxxx Xxxxx, XX 00000 ("Intel") and Atomica, Inc with a principal address at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Customer"). This Agreement includes
certain Service Level Agreements ("SLA' s") and other Exhibits attached hereto
or to be mutually agreed in writing and attached in the future, all of which are
incorporated herein by this reference.
SERVICES.
SERVICES AND SERVICE FEATURES. Intel will provide to Customer the
Internet data center services ("Services") identified in the attached Exhibit A,
substantially as set forth therein. Services shall be provided in a professional
manner consistent with industry standards.
SERVICE LEVEL AGREEMENTS. Exhibit B includes the SLA's applicable to each
of the Services identified in Exhibit A. Intel will provide the Services
in conformity with the service level commitments contained in each SLA.
If the parties agree to amend Exhibit A by adding or deleting Services,
Exhibit B will also be amended to add or delete the applicable SLA's as
appropriate.
SPECIFIC ADDITIONAL TERMS. If Customer is purchasing additional specific
Services other than as set forth elsewhere in this Agreement, then
additional terms applicable to such Services are attached as Exhibits to
this Agreement.
CUSTOMER INTEGRATION AND SERVICE ORDERS.
Upon the Effective Date of this Agreement, Intel and Customer will
commence good faith discussions and cooperate expeditiously to produce an
integration plan that provides the details for initiation of the Services.
Billing of monthly fees will commence as of two weeks after the date that Intel
makes Customer's configuration available to Customer for staging or testing
purposes or when customer site goes live to the public, whichever is earlier.
The initial configuration for billing purposes is set forth on the fee
schedule attached as Exhibit C. If Customer requests any changes to the
initial configuration or any additional Services, any charges for such
changes or Services will be reflected on monthly xxxxxxxx, and Customer
agrees to pay such charges as of the Billing Commencement Date for the
applicable change or Service. All changes or requests for additional
Services shall be confirmed in advance with Customer, either
electronically or in writing, prior to Initiating the change or Service;
provided that Intel may waive the requirement at the request of the
Customer if more immediate action is required. In the event of such
waiver, Customer agrees to confirm the request electronically or in
writing as soon as reasonably possible and to pay the applicable charges,
provided the charges are consistent with the Customer's request.
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In the event of changes described in the previous-paragraph, either
Customer or Intel may request that the Parties enter into a written
agreement documenting the changes as an amendment to this Agreement
(referred to herein as a "Service Order'). In the event of such a
request, the Parties agree to cooperate in good faith to complete the
desired Service Order. Unless either Party requests otherwise, Service
Orders may be exchanged and approved electronically or in written form.
PRICES. Prices to be fixed as of Exhibit C of this agreement for the
duration of 12 months after signature of this agreement. Prices for the
services are set forth in the fee schedule attached as Exhibit C. Unless
stated otherwise in the fee schedule, prices may be changed at any time
by Intel with at least thirty (30) prior days notice to Customer after
the Initial 12 month Term. If the parties agree to amend Exhibit A by
adding or deleting Services, Exhibit C xxxx also be amended as
appropriate.
TAXES.
Customer is responsible for tariffs, telecommunications surcharges or
other governmental charges due in connection with Intel's provision of Services
to Customer. To the extent this Agreement includes the provision of Services
which are determined to be subject to transaction taxes or which become taxable
at some future point in time, and if Intel is required by law to pay or collect
any local, value-added, goods and services, or any other similar taxes or duties
based on the Services provided, then Intel shall separately state such taxes in
addition to the prices for Services, and Customer agrees to pay such amounts. In
no event shall Customer be responsible for any taxes related to Intel's income.
Intel will not collect sales taxes from Customer within jurisdictions In which
Intel is not required to be licensed to collect such taxes or when Intel
receives a properly executed exemption certificate from Customer, nor will Intel
assume liability for any uncollected taxes, in such circumstances.
PAYMENT AND CREDIT APPROVAL.
PAYMENT. Intel will invoice Customer monthly. Invoices may be delivered
electronically or by any means acceptable under the notice provision of this
Agreement. Customer agrees to pay Intel within thirty (30) days from date of
invoice. For overdue invoices, Customer will pay Intel interest on the overdue
amount at a rate of one and one-half percent (1.5%) for each month or pro-rated
part of a month (or the maximum rate allowed by law, whichever is less) that the
payment is overdue. In the event any invoice is disputed, Customer shall be
responsible to make payments for any undisputed portion of such invoice. All
fees payable to Intel shall be paid by check tendered or wire transfer at the
following addresses or to such other payment addresses as Intel shall designate
in an invoice or other notice:
Remit Checks To: Remit Wires To:
Intel Online Services, Inc. Intel Online Services do Xxxxxxxx XX
00000 Network Place 000 Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000 Xxx Xxxx, XX 00000
General Account #00000000
ABA# 000000000
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CREDIT APPROVAL. Start of integration or expansion of Services following
initial integration shall be subject to prior credit approval. Customer agrees
to submit reasonable financial information upon request from Intel, including
current financial statements and other information sufficient to allow Intel to
assess Customer's ability to meet financial obligations under this Agreement. In
the event that Customer refuses to provide reasonably requested financial
information, or if Intel determines that Customer's financial condition does not
warrant credit approval, Intel reserves the right to delay or terminate
completion of integration or expansion of Services following initial
integration. In the alternative, Intel may proceed with integration or expansion
of-Services upon such altered payment or other terms as the parties agree.
During the Term of this Agreement, if there is an adverse material change in the
financial condition of Customer, Intel may, upon written notice to Customer,
modify the payment terms to require payment before the pro-vision of Services or
other assurances to secure Customer's payment obligations hereunder.
TERM.
This Agreement shall commence as of the Effective Date and shall
terminate one (1) year from the Billing Commencement Date ("Term"). Thereafter,
the Agreement shall automatically renew for successive one (1) year periods
unless either party gives the other written notice of intent to terminate and
not renew at least sixty (60) days' prior to the end of the initial term or any
renewal term. Any Service Order issued under this Agreement shall be for a
minimum one (1) year period beginning with the Billing Commencement Date of the
Services requested,. unless otherwise agreed by the Parties. Any Service Order
extending past the then-current Term of this Agreement shall be completed as if
this Agreement remained fully in effect, and this Agreement shall be deemed
extended through the termination date of the Service Order.
TERMINATION.
GENERAL TERMINATION RIGHTS. Either party may terminate this Agreement for
material breach by the other party upon written notice of not less than thirty
(30) days and failure to cure the breach within the notice period, except that
such notice period shall be shortened to fifteen (15) days for Customer's
failure to pay invoices when due or Intel's failure to provide a Service
Incident Credit determination within the contractual timeframe.
CUSTOMER'S DISCRETIONARY TERMINATION. Customer may terminate this
Agreement upon written notice of not less than thirty (30) days in the event of
any of the following:
(a) Intel makes changes to its Acceptable Use Policy
which materially and adversely impair Customer's use
of the Services and which are objectionable to
Customer;
(b) Intel modifies or updates the Services in a manner
which materially and adversely impairs the function
or performance of the Services provided to Customer;
(c) Customer has the right to terminate under the
provisions of the SLA applicable to the Services
provided by Intel to Customer.
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(d) Customer may increase the number of AppChoice
servers for 12 months at the then-current prices;
Customer may reduce the number of AppChoice servers
by a total of 1 (one) server at no cost within 12
months after signature of this agreement.
Such notice of termination must be delivered to Intel, if at all, within
thirty (30) days of the event giving rise to the termination right. Other than
as expressly set forth in this Section, Customer shall not have the
discretionary right to terminate this Agreement or any Service Order prior to
the expiration -of the applicable Term.
INTEL'S ADDITIONAL RIGHTS TO TERMINATE OR RESTRICT SERVICES. Intel
reserves the right (but shall have no obligation) to take additional action, up
to and including termination, in the following limited circumstances:
1. With or without notice, Intel may modify or terminate any
or all Services or restrict Customer's use in whole or in part if, in Intel's
sole judgment, use of the Services by Customer or Its end users (i) presents a
material security risk or will interfere materially with the proper continued
operation of a data center or related services, or (ii) is subject to an order
from a court or governmental entity stating that such use generally or for
certain activities must stop. Where permitted under the relevant court or
governmental order, Intel will notify Customer of such order promptly so that
Customer will have an opportunity to respond to the order. Intel also will
notify Customer promptly of any security risks identified under Section (i)
above and any action taken by Intel with respect to such security risks.
2. Upon notice of not less than seven (7) days and failure to
cure within the notice period, Intel may modify or terminate any or all Services
or restrict Customer's use in whole or in part if, in Intel's -reasonable
judgment, use of the Services by Customer or its end users (i) violates
applicable laws or governmental regulations, including, without limitation,
consumer protection, securities regulation, child pornography, obscenity, data
privacy, data transfer and telecommunications laws; (ii) violates or infringes
any intellectual property right of Intel or a third party; (iii) violates export
control regulations of the United States or other applicable countries; or (iv)
otherwise violates Intel's Acceptable Use Policy.
Notwithstanding anything to the contrary in this Agreement, Intel
reserves the right to take whatever steps are necessary to comply with
the shorter notice periods or other requirements of the Digital
Millennium Copyright Act (~DMCA") or any applicable law or regulation of
the jurisdiction where Services are performed.
EFFECT OF TERMINATION. Upon termination; all rights granted to Customer
under this Agreement terminate immediately. Customer shall deliver-to
Intel written instructions for disposition of all data files in Intel's
possession within thirty (30) days of the notice of termination. Return
or back up of data flies shall be at Customer's expense. If written
instructions are not received within thirty (30) days of the notice of
termination, Intel will be- authorized to destroy all files upon
cessation of Services and completion of the Transition Period set forth
in Section 7.5, if applicable. Any such return, back up or destruction is
subject to any applicable law or governmental regulation. Customer
remains liable to pay Intel for the Services received through the date of
termination of
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this Agreement and for any periods during which Customer is still
receiving all or some portion of the Services. The following sections
xxxx survive any expiration or termination of this Agreement: Section 7.5
(Transition Period), Section 8.1 (Customer's Responsibility for Use of
the Services), Section 8.3 (Customer's Indemnity of Intel), Section
9.(lntel's Indemnity of Customer), Section 11 (Ownership of Intellectual
Property), Section 12 (Confidentiality; Data Use; Privacy), Section 13
(Warranties and Warranty Disclaimers), Section 14 (Limitation of
Liability; Remedies), Section 15 (Dispute Resolution; Governing Law), and
Section 16 (Miscellaneous). Upon termination of this Agreement or any
applicable portion of the Services, Customer shall relinquish use of any
Internet protocol addresses or address blocks assigned to it by Intel in
connection with the applicable Services.
TRANSITION PERIOD. Customer shall be entitled to a sixty-day period of
continued service following any notice of termination in order to complete a
transfer of-service to Customer or to a new service provider selected by
Customer ("Transition Period"); provided that Customer pays all past due fees
and 50% of all fees for the Transition Period in advance and cures all grounds
for termination under Section 7.3.
CUSTOMER RESPONSIBILITIES.
CUSTOMER'S RESPONSIBILITY FOR USE OF THE SERVICES. As between Customer
and Intel, Customer agrees it is solely responsible for and assumes all
liability relating to the following:
3. All aspects of Customer's business, including Customer's
obligations to end users or other third parties and all business or financial
results obtained by Customer from using the Services;
(a) All technology, equipment, content and data provided
by or through Customer for use with the Services,
including performance of software applications
provided by Customer;
(b) Decisions about Customer's computer and
communications systems needed to access the
Services;
(c) Decisions made by Customer with respect to
maintenance, remote assistance, or other actions
taken by Intel at the direction of Customer or
according to event scripts or specifications
provided by Customer;
(d) Compliance with all applicable laws and governmental
regulations regarding Customer's business or use of
the Services;
(e) Use of the Services by Customer's customers or end
users;
(f) Compliance with Intel's Acceptable Use Policy by
Customer and its customers and end users.
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END USER AGREEMENTS. To protect both Customer and Intel, Customer shall
include in agreements with its customers and end users (i) requirements
for customers and end users- to comply with usage policies sufficient to
ensure compliance with Intel's Acceptable Use Policy (ii) limitation of
liability provisions no less protective than those contained in Section
14.1 below; (iii) dispute resolution and attorneys' fees provisions
substantially similar to those contained in Sections 15.1, 15.2, and 15.5
below. Such provisions shall protect-Customer and its service provider
(i.e., Intel) to the same extent.
CUSTOMER'S INDEMNITY OF INTEL. Customer will defend or settle any suit or
proceeding brought against Intel by any end user or -third party arising from
(i) matters for which Customer has responsibility under this Section 8; (ii)
violation by Customer of any obligations under this Section 8 or section 11.5;
(iii) claims that any content of Customer or its customers or end users,
including but not limited to data, text, multimedia images (e.g. graphics, audio
and video files), software, applications, or other materials (collectively
"Content"), or the manner in which Customer or its customers or end users make
use of the Services, constitutes an infringement of any patent, copyright,
trademark, trade secret, publicity, privacy, or other right of any third party,
or (iv) any civil or criminal violations of law or governmental regulations
occurring as a result of actions or omissions of Customer or its customers or
end users. Customer will pay all damages and costs finally -awarded against
Intel (including any indirect or consequential damages awarded as a result of
such proceeding); provided that Intel (x) promptly notifies Customer in writing
of any such suit or proceeding, (y) provides Customer with sole control over the
defense or settlement of any such action; and (z) provides reasonable
information and assistance in the defense or settlement of any such action.
Intel may participate in any such suit or proceeding through counsel of its
choice at Intel's own expense; provided, that the costs associated with Intel's
counsel shall not be deemed damages or costs for purposes of Customer's
indemnity hereunder. Notwithstanding the foregoing remedies, upon notice of not
less that seven (7) days, Intel reserves the right (but shall have no
obligation) to delete any Content installed on an Intel server and to modify or
terminate any or all Services or restrict Customer's use in whole or in part-in
the event of any suit or proceeding, or threatened suit or proceeding, which may
be subject to an indemnity obligation under this Section.
INTEL'S INDEMNITY OF-CUSTOMER.
Intel will defend or settle any suit or proceeding brought against
Customer based upon a claim that the Services alone and not in
combination with any other product or service constitutes an infringement
of any patent, copyright or trade secret of any third party, and will pay
all damages and costs (including any indirect or consequential damages
awarded as a result of such proceeding) finally awarded against Customer
up to the liability limits of this Agreement; provided that the Customer
(i) promptly notifies Intel in writing of any such suit or proceeding,
(ii) provides .Intel with sole control over the defense or settlement of
any such claim or action; and (iii) provides reasonable information and
assistance in the defense or settlement of any such claim or action.
Customer may participate in any such suit or proceeding through counsel
of its choice at Customer's own expense; provided, that the costs
associated with Customer's counsel shall not be deemed damages or costs
for purposes of Intel's indemnity hereunder. Upon notice of not less than
seven (7) days, Intel reserves the right (but shall have no obligation)
to modify or terminate any or all Services or restrict Customer's use in
whole or in part in the event
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of any suit or proceeding, or threatened suit or proceeding, which may be
subject to an indemnity obligation under this Section.
ANNOUNCEMENTS AND PROMOTION.
Neither party will issue any press releases or use the logo of the other
party in an advertisement or other public announcement relating to this
Agreement or-the relationship between the parties without the prior
written approval of the other. Customer agrees that Intel may include
Customer's name in listings of Intel's customers. Intel agrees that
Customer may include Intel's name in listings of Customer's Service
Providers.
OWNERSHIP OF INTELLECTUAL PROPERTY AND EQUIPMENT.
Unless otherwise expressly set forth in this Agreement, the parties do
not, directly or by implication, by estoppel or otherwise, grant to each
other any rights or licenses, and neither party shall have any ownership
rights in any intellectual or tangible property of the other.
Intel shall not obtain any right, title, and/or interest in the Content,
algorithms, executable code or methods of customer application operations
provided by Customer or its customers or end users and installed on,
stored or processed through Intel's hardware and software, and, as
between Intel and Customer, Customer shall retain title to and all rights
and/or interest in such Content.
Unless otherwise expressly set forth in this Agreement, all equipment
provided by Intel in connection with this Agreement shall remain the
property of Intel.
Intel shall retain title to and all rights in all intellectual property
provided by Intel, including, but not limited to, any know-how related to
Intel-provided Services or products such as hardware, software or any
other server technology. Notwithstanding anything in this Agreement to
the contrary, the rights granted herein do not include any right,
license, release or immunity, directly or indirectly, express, implied or
by estoppel, in or to Intel's component-level, flash memory chips, video
chips, or microprocessor or related chipset technology, or any of Intel's
process technology under any patent, copyrights, trade secret, mask work
or other intellectual property right, Including but not limited to Intel
architecture processors.
Customer understands that delivery of the Services may involve use of
software owned by Intel or third parties under license agreements with Intel.
Customer agrees to abide by the following terms governing use of such software:
4. Customer shall not cause or permit reverse engineering,
disassembly or decompilation of any software provided by Intel, or use such
software outside the scope of this Agreement;
(a) Title to software provided by Intel shall not pass
to the Customer;
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(b) Customer may use the Software only in object code
form;
(c) Upon termination of this Agreement, or any
applicable SLA, Customer shall cease using the
software, and any copies of software provided to
such Customer, if any, are to be either completely
removed from the Customer's computing devices or
otherwise rendered unusable;
(d) Customer understands that in the event that Customer
violates the intellectual property rights of any
third party supplier of software, such software
supplier shall have the right to enforce its
intellectual property rights with respect to the
software directly against the Customer;
(e) Customer and its customers and end users may access
the Software only in connection with use of the
Services and Customer's business operations, and
Software may not be re-licensed, rented, leased, or
used for time sharing or service bureau users by
Customer.
Software may contain certain technology, including but not limited to
support for programs written in Java, which technology is not fault
tolerant and is not designed, manufactured, or intended for use or resale
as online control equipment in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct life
support machines, or weapons- systems, in which the failure of such
technology could-lead directly to death, personal injury, or severe
physical or environmental damage.
CONFIDENTIALITY; RESTRICTIONS ON DATA USE; PRIVACY.
GENERAL NON-DISCLOSURE. Subject to the terms of this Agreement, each
party shall maintain the confidentiality of the information it receives
from the other pursuant to the terms of the Corporate Nondisclosure
Agreement ("CNDA") between Customer and Intel or its parent-company, No.
9271285, which is incorporated herein by this reference. Except as
otherwise expressly provided under this Agreement, neither party may
disclose to the public or to any third party the terms and conditions of
this Agreement other than with the express prior written consent of the
other party.
RESTRICTIONS ON DATA USE. Unless requested to do so by Customer, Intel
will not collect or retain for its own purposes any personally identifiable
information regarding Customer's customers or end users who access the Services
through Customer, including without limitation and for avoidance of doubt, any
financial information (such as credit card numbers) or protected medical or
health care records (such as patient data) of Customer's customers or end users.
Without limiting the foregoing, Intel may monitor use of the Services and gather
statistical and demographic information about use of the Services. Such
information may be used for internal statistical and marketing reports and may
be shared by Intel with third parties in aggregate or statistical form only
without disclosure of Customer's confidential information or any personally
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identifiable information about Customer, Customer's customers or end users. No
confidential or personally identifiable information about Customer, Customer's
customers, or end users shall be sold, assigned, leased, or otherwise disposed
of to third parties by Intel.
PRIVACY. Both parties agree to comply with all applicable privacy or data
protection statutes, rules, or regulations governing the respective activities
of the parties. Prior to initiation of Services under this Agreement and on an
ongoing basis thereafter, Customer agrees-to provide notice to Intel of any
privacy -or data protection statutes, rules, or regulations which are or become
applicable to Customer's business and which could be imposed on Intel as- a
result of provision of Services under this Agreement.
Customer will ensure that the transfer and storage of any data about
individuals collected by Customer ("personally identifiable data") and managed
by an Intel data center is legitimate under data protection regulations and will
obtain consent from individuals for such transfer and. storage under applicable
regulations. Intel will not transfer personally identifiable data to third
parties. At the request of Customer, personally identifiable data may be
transferred to other countries in order to achieve load balancing of content
hosted by Intel under this Agreement. Intel's activities under its geographical
load balancing Service do not involve the use, alteration or modification of
personally identifiable data.
WARRANTIES AND WARRANTY DISCLAIMERS.
SERVICE LEVEL WARRANTY; LIMITATIONS; SOLE REMEDIES. INTEL WARRANTS TO
CUSTOMER THAT IT WILL PROVIDE THE SERVICES IN A MANNER WHICH IS
CONSISTENT WITH THE SLA'S ATTACHED AS EXHIBIT B. CUSTOMER'S SOLE REMEDY
IN THE EVENT OF ANY SERVICE OUTAGE, INTERRUPTION OF SERVICES DUE TO
OUTAGES, OR OTHER BREACH OF WARRANTY OR FAILURE BY INTEL TO MEET THE
TERMS OF AN APPLICABLE SLA, SHALL BE THE CREDITS OR TERMINATION RIGHTS
PROVIDED IN THE APPLICABLE SLA OR THIS AGREEMENT. INTEL AND ITS SERVICE
PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER LIABILITIES OR
REMEDIES FOR SUCH OUTAGES, INTERRUPTIONS, OR BREACHES OF WARRANTY.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIABILITY OF INTEL AND ITS
SERVICE PROVIDERS AND SUPPLIERS ARISING FROM ANY SUCH OUTAGE,
INTERRUPTION, OR BREACH OF WARRANTY SHALL BE EXPRESSLY LIMITED AS SET
FORTH IN THE ATTACHED SLA'S.
GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13.1 AND AN
APPLICABLE SLA, THE SERVICES ARE PROVIDED "AS IS AND INTEL MAKES NO
WARRANTIES OR REPRESENTATIONS CONCERNING THE SERVICES OR ANY RESULTS TO
BE ACHIEVED THROUGH USE OF THE SERVICES; INTEL DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ALL IMPLIED
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
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NO SECURITY WARRANTY. INTEL DOES NOT GUARANTEE THAT ITS PROCEDURES AND
SERVICES WILL PREVENT LOSS, ALTERATIONS OR UNAUTHORIZED ACCESS TO
CUSTOMER DATA HOSTED BY INTEL.
DISCLAIMER OF ACTIONS CAUSED BY OR UNDER THE CONTROL OF THIRD PARTIES.
INTEL DOES NOT AND CANNOT CONTROL THE PERFORMANCE OF ANY DATA, PRODUCTS,
OR SERVICES CONTROLLED BY THIRD PARTIES. AT TIMES, ACTION OR INACTION BY
THIRD PARTIES CAN IMPAIR OR DISRUPT INTEL'S SERVICES. INTEL MAKES NO
REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE
DATA, PRODUCTS, OR SERVICES CONTROLLED BY ANY THIRD PARTY, INCLUDING THE
PROVIDERS OF TELECOMMUNICATIONS PRODUCTS OR SERVICES. SUCH DATA,
PRODUCTS, AND SERVICES'ARE NOT PROMISED TO BE FREE OF ERROR OR
INTERRUPTION, AND INTEL EXPRESSLY DISCLAIMS ALL LIABILITIES ARISING FROM
ANY SUCH ERROR, INTERRUPTION, OR OTHER FAILURE. CUSTOMER ACKNOWLEDGES
THAT AN INTERRUPTION IN SERVICES DUE TO CIRCUMSTANCES BEYOND THE
REASONABLE CONTROL OF INTEL, SUCH AS A FAILURE OF TELECOMMUNICATIONS
SYSTEMS NOT CONTROLLED BY INTEL, SHALL-NOT BE CONSIDERED A SERVICE OUTAGE
FOR PURPOSES OF ANY WARRANTY PROVIDED IN AN APPLICABLE SLA.
LIMITATION OF LIABILITY; REMEDIES.
DAMAGES LIMITATION. LIABILITY ARISING UNDER THIS AGREEMENT, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO
DIRECT, OBJECTIVELY MEASURABLE DAMAGES. NEITHER PARTY OR THEIR SUPPLIERS,
INCLUDING SUPPLIERS OF TELECOMMUNICATIONS SERVICES, SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY, FOR ANY INCIDENTAL,
PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION LOST PROFITS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE. INTEL LICENSES
CERTAIN SOFTWARE FROM THIRD PARTIES FOR USE WITH THE SERVICES. THE
LIABILITY OF SUCH THIRD PARTY SUPPLIERS FOR DAMAGES, WHETHER DIRECT,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL ARISING FROM USE OF THE SOFTWARE,
SHALL BE DISCLAIMED AND LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Notwithstanding anything to the contrary, the-aggregate liability of
Intel and its suppliers under this Agreement shall not exceed the lesser
of (a) the total amounts paid by Customer to Intel hereunder during the
one-year period immediately preceding the event which gave rise to the
claims or (b) one million dollars ($1,000,000.00).
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SOLE REMEDIES; MATERIALITY. CUSTOMER AND INTEL AND ITS SUPPLIERS DISCLAIM
ANY AND ALL LIABILITIES OR DAMAGES OTHER THOSE EXPRESSLY PROVIDED IN THIS
AGREEMENT OR AN ATTACHED SLA. CUSTOMER AND INTEL ACKNOWLEDGES AND AGREES
THAT THE LIABILITY OF CUSTOMER, INTEL AND ITS SUPPLIERS ARISING UNDER
THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES SHALL BE EXPRESSLY
LIMITED TO THE LIABILITY AND DAMAGES PROVIDED HEREIN. THE PARTIES
ACKNOWLEDGE THAT THE LIMITATIONS REFERENCED IN THIS SECTION ARE MATERIAL
TERMS TO THIS AGREEMENT.
FORCE MAJEURE. In the event that either party is unable to perform any of
its obligations under this Agreement because of any event beyond the
reasonable control of that party, including, but not limited to, natural
disaster, acts of God, actions or decrees of governmental bodies or
failure of communication lines (a "Force Majeure Event"), the party who
has been so affected shall promptly give notice to the other party and
shall use commercially reasonable efforts to resume performance. Upon
receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event. If
any Force Majeure Event substantially prevents or hinders performance of
the Services for more than fifteen (15) consecutive days, then Customer
may terminate this Agreement without penalty to Customer or Intel upon
written. Such notice must be delivered to Intel, if at all, no later than
sixty (60) days following termination of the Force Majeure Event. (IOS
OK)
DISPUTE RESOLUTION; GOVERNING LAW.
With the exception of disputes involving breach of confidentiality,
infringement of a party's intellectual property, or other types of
irreparable harm for which injunctive relief through the courts is sought
by either party, all disputes arising under the terms of this Agreement
or the grounds for termination thereof shall be resolved as follows: The
senior management of both parties shall meet to attempt to resolve such
disputes. If senior management cannot resolve the dispute, either party
may make a written demand for formal dispute resolution and specify
therein the scope of the dispute.
If the disagreements cannot be resolved by senior management within
thirty (30) days from the date any party made a written demand for resolution, a
binding arbitration shall be held. Subject to the provisions of this Section,
the rules of the arbitration shall be agreed upon-by the parties prior to the
arbitration and based upon the nature of the disagreement. To the extent that
the Parties cannot agree on the rules of the arbitration, then the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") in effect on
the Effective Date of this Agreement, or, when either of the parties is not a
U.S. entity, then the Commercial Arbitration Rules of the International Chamber
of Commerce ("ICC") in effect on the Effective Date of this Agreement, and
except as the applicable rules are modified by this Agreement, shall apply. The
proceedings shall be held in the County of Washington or Multnomah, Oregon,
U.S.A. under the auspices of the AAA or the International Chamber of Commerce,
whichever is applicable. As a minimum set of rules in the arbitration, the
Parties agree as follows:
14
5. The arbitration shall be held by single arbitrator mutually
acceptable to both parties. If the parties cannot agree on a single arbitrator
within thirty (30) days from the date written demand is made, each Party shall
identify one independent individual who shall meet to appoint a single
arbitrator. If an arbitrator still cannot be agreed upon within an additional
thirty (30) days, one shall be appointed by the AAA or ICC as applicable. The
arbitrator shall be knowledgeable regarding the Internet hosting or data
services industries.
(a) Prior to a final award, the parties shall equally
bear the costs and fees of the arbitration and each
party shall bear its own legal expenses. The Parties
agree that a court reporter will record the
arbitration proceedings and that the reporter's
record will be the agreed transcript of the
proceedings. Prior to a final award, the parties
will share the expenses of this reporter.
(b) The arbitrator shall specify the basis for his/her
decision, the basis for the damages award and a
breakdown of the damages awarded, and the basis of
any other remedy authorized under this Agreement.
The decision of the arbitrator shall be considered
as a final and binding resolution of the
disagreement, shall not be subject to appeal and may
be entered as a judgment in any court of competent
jurisdiction located in Washington or Multnomah
County, Oregon, U.S.A.
(c) Any arbitration proceeding hereunder shall be
conducted on a confidential basis.
(d) The parties shall agree upon what, if any, discovery
shall be permitted. If the parties cannot agree on
the form of discovery within fifteen (15) days after
the appointment of the Arbitrator, then there shall
be neither discovery nor the issuance of subpoenas.
In no event, however, shall any such discovery take
more than three months.
(e) The duty of the parties to arbitrate any dispute
within the scope of this Section shall survive the
expiration or termination of this Agreement for any
reason. The parties specifically agree-that any
action must be brought, if at all, within two (2)
years from the accrual of the cause of action.
(f) The discretion of the arbitrator to fashion remedies
shall be limited as stated in this Agreement, and
shall exclude any right to award a remedy based on
implied rights under the Agreement.
OTHER CLAIMS. Any action to enforce an arbitrator's decision, award,
order, or judgment, or any claim which is beyond the scope of this
arbitration provision, shall be submitted by any affected party to a
court of competent jurisdiction located in Washington or Multnomah
County, Oregon, U.S.A., and each party hereby agrees to jurisdiction and
15
venue in the courts of the State of Oregon for all such disputes and
litigation arising under or relating to this Agreement. Otherwise,
neither Party shall xxx the other where the basis of the suit is within
the scope of this arbitration provision.
GOVERNING LAW. Any claim arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of
Delaware and the federal courts located in Delaware, without regard to
principles of conflict of laws. Furthermore, the parties agree that the
terms of The U.N. Convention on Contracts for the International Sale of
Goods do not apply to this Agreement.
ATTORNEYS' FEES. In the event of any dispute or arbitration hereunder,
the prevailing party shall be entitle to recover its costs and
disbursements incurred, together with reasonable attorneys' fees to be
fixed by the arbitrator or court at trial or on appeal.
MISCELLANEOUS.
NOTICE. Unless otherwise stated herein, all notices under this Agreement
shall be written and shall be delivered by hand, post, fax, or email (with
contemporaneous delivery by one of the foregoing means) to the persons and at
the addresses as set forth below and shall be deemed given upon transmission in
the case of fax or email or otherwise upon delivery. Either party may change its
address for receipt of notice to the other party by delivering written notice of
such change pursuant to this Section.
If to Intel: With a copy to:
Dado Vrsalovic President General Counsel
Intel Online Services, Inc. Intel Corporation
Mailstop: MP3-10l 0000 Xxxxxxx Xxxxxxx Xxxx.
0000 Xxxxxxx Xxxxxxx Xxxx. Xxxxx Xxxxx, XX 00000-0000
Xxxxx Xxxxx, XX 00000 Attn: Intel Online Services Legal
If to Customer:
Xxxx Xxxxxxxxx, VP Finance
0000 Xxxxxx Xxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
INVALIDITY. The invalidity or unenforceability for any reason of any
provision of this Agreement shall not prejudice or affect the validity or
enforceability of its other provisions.
CUMULATIVE REMEDIES. Except as otherwise expressly provided in this
Agreement or an attachment, all remedies provided for in this Agreement
shall be cumulative and in addition to and not in lieu of any other
remedies available to either party at law, in equity or otherwise.
ASSIGNMENT. Neither party may assign any of its rights, obligations, or
privileges (by operation of law or otherwise) hereunder without the prior
written consent of the other.
16
Notwithstanding the foregoing, upon notice to the other party, Intel may
assign or delegate its rights and obligations under this Agreement to one
or more of its affiliates under common control or ownership, and either
party may assign all of its rights and obligations under this Agreement
to a successor entity as part of a merger, sale, or consolidation
involving transfer of all or substantially all of the party's stock or
assets, provided that the assignee or successor entity agrees to be bound
by the terms of this Agreement. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective officers, directors, employees, successors, and assigns.
HEADINGS. The headings to the Agreement provisions are for reference only
and shall not affect their interpretation.
INDEPENDENT CONTRACTOR. The parties hereto are independent contractors.
Nothing in this Agreement will be construed to make the parties partners
or joint venturers or to make either party liable for the obligations,
acts or activities of the other.
NO THIRD-PARTY BENEFICIARIES. The provisions of this Agreement are
intended solely for the benefit of Customer and Intel and its suppliers
and shall create no rights or obligations enforceable by any other party
unless such beneficiaries are expressly set forth in a Schedule hereto.
ENTIRE AGREEMENT; AMENDMENT. This Agreement, including each Exhibit,
constitutes the entire agreement between the parties with respect to
matters contained herein, and all prior or contemporaneous agreements and
negotiations with respect to those matters are superseded by this
Agreement. No waiver of any breach or default shall constitute a waiver
of any subsequent breach or default. Any changes to this Agreement, or
any additional or different terms in Customer's purchase orders,
acknowledgments or other documents, will not be effective unless
expressly agreed to in writing by the party against whom enforcement is
sought.
COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which will be deemed to be an original and all of which will be deemed
to be a single agreement. This Agreement will be considered fully executed when
all parties have executed and delivered an identical counterpart to the other
party, notwithstanding that all signatures may not appear on the same
counterpart.
Please sign below to indicate your understanding and-acceptance of the
terms of this Agreement.
Atomica, Inc. INTEL ONLINE SERVICES, INC.
By: By:
------------------------------------ -----------------------------------
Print Name: Print Name:
Title: Title:
Date: Date:
17
EXHIBIT A -- SERVICES SELECTED AND LIST OF SERVICE FEATURES
AppChoice(SM) Managed Hosting Service Feature Summary
AppChoice3M Managed Hosting is a managed service provided by Intel Online
Services for a customer's e-commerce solution. The AppChoice managed service is
available for Web, Database and General application hosting service platforms.
Each AppChoice customer will be provided the following service features
as a part of the basic service offering when the solution is in the Go Live
period. The Go Live period follows Production and means that the solution is
available through the public Internet to customers.
1. BACKUP AND RECOVERY
(a) Backup of operating system and application partition on a daily
basis with retention of 8 versions of the backed up system image
for up to 180 days. Additional backups on demand available for an
extra charge. Note: open or locked files will not be backed up.
Backup performance is not guaranteed due to varied customer
hardware, software, system load and data set characteristics.
(b) 2 on demand recoveries from backup per month for the operating
system and application partition (database recoveries charged
separately). Additional recoveries available for an additional
charge. Full customer system restores will require the customer to
re-load the operating system before Intel can re-install the
backup application and restore customer data. Open file backups
and system image restores are not performed as part of the
standard service.
(c) Backup Status Report
2. Monitoring
(a) 24x7x52 monitoring of critical points of failure for basic managed
infrastructure through Intel's Command Center. Extended
Application Monitoring may be added for an additional charge.
Please see your Customer Alert and Response Process for a detailed
list of monitors.
(b) Customer notification via email, or text pager, or voicemail, or
text pager, or telephonically as specified by Customer when disk
utilization, memory usage, or processor usage exceed standard
thresholds defined by Customer, OR in between Customer
notification via email, or text pager, or telephonic and voicemail
when customer's hosting service platform availability is
interrupted.
(c) Five Extended Application Monitoring automated Type A alert
responses per month. Additional Type A and Type C responses
available for a separate charge.
(d) Online Server and Service Summary Report
18
3. REMOTE SYSTEM ACCESS
(a) Five Client to LAN VPN accounts included. Additional bundles of 5
accounts and LAN to LAN accounts available for an extra charge.
(b) 24x7 administration of privileged and emergency remote access to
the service platform. Support for 8 privileged or emergency access
requests per month. Privileged remote access includes system image
capture to enable rollback capabilities. Additional access
requests will be charged on a per request basis.
4. SOLUTION MANAGEMENT AND MAINTENANCE
(a) Initial set up and configuration of customer server solution.
Customers may purchase optional Quick Server Build services to
guarantee that servers will be ready for the Production Period
within 5 business days of execution of the Master Customer
Agreement or. Service Order. Certain restrictions apply.
(b) Performance proven hardware and software platforms that are
validated and fully -integrated into Intel's service support
environment. NT and Unix and Linux) solutions available on Dell
PowerEdge and Sun Enterprise servers. Customers may load customer
provided applications on Intel's managed web, database or general
hosting service platform.
(c) Primary and secondary hosting for up to two DNS domains per server
(up to 100 lines each).
(d) Allocation of two IP addresses per server.
(e) 24x7 post-production Go Live support. Technical Account Manager
support available 8axn-Spm local time M-F with 24x7 support for
Urgent change requests. A Daily Incident Report will also be
included to summarize all events surrounding your solution.
(f) Customer Change Management - five customer-initiated change
request points (1 point equals 1 hour of change request service)
per month included. Additional requests will be subject to
additional charges based on High or Urgent priority level.
(g) Regularly scheduled maintenance for critical software patch
updates, system configuration and hardware repair or replacement.
Customer scheduled maintenance window available upon request.
(h) Access to "Intel(R) Online Services Customer Care Portal" and
customer specific information. Includes two Administrator accounts
and five User accounts per customer.
(i) Optional Remote Assistance Services available for a charge.
19
The following service features will also be included for specific types
of AppChoice hosting service platforms:
5. WEB HOSTING SERVICE PLATFORMS
(a) Load balancing.
(b) Daily access to raw web activity log files.
(c) Customer notification via email, or text pager, or telephonic or
voicemail when web service availability is interrupted.
(d) Optional web usage reporting service available-for an additional
charge.
6. DATABASE HOSTING SERVICE PLATFORMS
(a) Transaction logs dumped to local disk every 4 hours. Daily
incremental and weekly full database backups to disk with 30 days
retention for full versions and 7 days for incremental versions
and logs.
(b) Customer notification via email, or text pager, or telephonic or
voicemail when database service availability is interrupted.
(c) Optional database recovery service available for an additional
charge.
7. GENERAL APPLICATION HOSTING SERVICE PLATFORMS
Customer notification via email, or text pager, or telephonic or
voicemail when OS availability is interrupted.
SERVICE MODIFICATIONS TO SUPPORT THE PRODUCTION PERIOD
The AppChoice Managed services will be modified as follows throughout the
Production period. "Production" is the period of time between hand off of the
solution architecture to the Customer by Intel (hardware, OS and managed
applications integrated into the AppChoice service infrastructure) and Go Live.
During Production Customers will load content and Customer provided applications
to ready the solution for availability to their customers through the Internet.
Customers are responsible for testing their application code during this time.
1. Customer support provided during normal business hours
Monday through Friday 8am to 5pm data center local time, excluding holidays.
Support includes: assistance ( to customers loading content and applications,
troubleshooting of Intel Online Services solution platform and infrastructure,
VPN installation/troubleshooting, reboots to power cycle servers and account
creation. If-escalation is required outside of normal business hours, it will be
attended to the next business day. After hours support is available for an
additional charge with at least 24 hours advanced notice to the Customer
Integration Manager.
20
2. Working with the Customer, Intel will define a quality
assurance plan that will be implemented prior to the customer going live,
Customer may grant Intel permission to conduct potentially intrusive quality
assurance testing that can be customized based on the Customer's requirements.
3. Intel will provide a full back up of the solution prior to
hand off to the Customer for Production. All subsequent incremental back ups
will be provided at the customer's request (not to exceed one per day) until the
daily backup schedule commences with Go Live. Additional backups on demand
available for an incremental charge.
4. During-Production a reduced set of Foundation monitors will
be enabled until Go Live Unless the Customer requests otherwise during
integration. Please see your Customer Alert and Response Process for-a detailed
list of monitors.
5. Remote Assistance services are available for an incremental
charge.
6. The standard configuration is for public IP ports to be
closed. Public access to the customer's website may be made available at the
customer's request for testing.
7. The Production period will be no longer than 2 months.
Extended Production support is available for an additional charge.
21
APPCHOICE(SM) COLOCATION HOSTING SERVICE FEATURE SUMMARY
Intel Online Services (Intel) provides AppChoiceTM Colocation Hosting
services ("Colocation Hosting") to enable customers to choose from a variety of
service components to create a customized and flexible service offering on Intel
or customer provided hardware. Networking services are available to all
Colocation Hosting customers and are described in a separate Network Services
Service Feature Summary. Under Colocation Hosting, customers have the option to
supplement basic network, power and physical security services with optional
management services that can be purchased to provide a more comprehensive
management solution and enable .a migration into a fully managed environment if
desired by the customer.
Each Colocation Hosting customer will be provided the -following basic
service features:
1. Cabinets/Racks
o Rack external dimensions are 78"H x 39"D x 24GW.
o Racks are fitted with cabinets and have an internal 19"
width with solid roof and sides, as well as front and
rear doors that allow for key or combination locks. A
single shelf and lock are included. Cables enter
cabinets from the floor.
2. Suites
o Available in a secured area enclosed by removable walls
capable of holding up to 32 racks.
o Customized power and network configuration within
suites.
o Suites may contain customer racks, or Intel may provide
customers with standard racks with power failover
switching at an additional cost.
3. Power
o Power feeds for server cabinets from different power
distribution units. Voltage varies by location.
o Cabinets have 2 redundant power feeds, 2 circuits from
one distribution, and 2 circuits from -another (for a
total of 40A of redundant power for U.S. sites). Two
additional redundant power feeds are available to
accommodate future needs.
4. Internet Services
o Primary hosting for one DNS domain per server (up to 100
lines each).
o Allocation of two IP addresses per server.
22
5. Network
o Fixed rate and burstable bandwidth options are
available. Corresponding network services are described
in more detail in the Network Service Feature Summary.
6. Facility Security
o Colocation Hosting customer servers are housed in locked
cabinets.
o Internet data centers include person-traps and card
reader access to Colocation areas as well as
surveillance cameras to provide physical security.
o No unescorted customer access to Colocation areas is
allowed.
7. Reporting
o Access to "Intel(R) Online Services Customer Care
Portal"' and customer specific information. Includes two
Administrator accounts and five User accounts per
customer. Includes the Network Bandwidth and Daily
Incident report as standard. Backup Status and Online
Web Usage reporting will be available when the
associated optional managed service is purchased.
EACH COLOCATION HOSTING CUSTOMER MAY-CHOOSE FROM THE FOLLOWING OPTIONAL
SERVICES TO SUPPLEMENT THEIR BASIC COLOCATION HOSTING SERVICES:
1. PROVISIONING SERVICES
Intel will offer a monthly lease option for the following items.
POWER ENHANCEMENT OPTION -- APC UNIT
o Power fail over switching device on racks connected to redundant
feeds. Automatic fail over from one power feed to the other in the
event of power failure in one of the power feeds.
SERVERS
o Provisioning of the complete hardware platform consisting of a server,
power strip(s), and APC power switch -(if the above power enhancement
option is purchased).
o Repair and replacement, if necessary, for complete hardware platform
consisting of server, power strip(s), and APC power switch (if the
above power enhancement option is purchased).
Supported Platforms (confirm availability with local Internet Data
Center):
23
Intel Architecture Sun Architecture
Dell 2450/1550 Sun Netra T1, Solaris 7
Dell 6350 Sun E420 Dual CPU Server, Solaris 2.6
PV200 for external storage Sun E420 Quad CPU Server, Solaris 2
Sun StorEdge Al000
o Requires written authorization from customer to Intel for physical and
logical access to maintained servers.
o All service calls must be routed through Intel call center.
NETWORK EQUIPMENT
o Intel will provision the specified networking equipment and make it
available to the customer. Intel retains ownership of the equipment.
o The customer will install, configure and maintain the equipment.
Professional Services may be purchased for assistance if needed.
o Intel will provision the specified software license and maintenance
agreement and make the software available to the customer for
installation and configuration. Intel retains ownership of the
software licenses and accompanying maintenance agreements.
o Professional Services may be purchased for Intel to install or
configure the software on the provisioned hardware or customer
provided platform prior to customer use. Installation of the suites
will be based on customer configuration requirements and billable by-
the hour.
2. INSTALLATION SERVICES TO ACCOMPANY PROVISIONED SERVER HARDWARE
o Installation of servers in the customer's Colocation cabinet.
o Crash Cart for use in installation, hardware service or otherwise at
the customer's request.
o Hardware installed in the customer's Colocation cabinet in accordance
with Intel's racking and installation procedures. Hardware connection
to power risers and power on included. If specified on the Provisioned
Colocation Order Form, hardware will be placed as close as possible to
the customer's requested position in the racks.
o Customer may install add-in cards into available extension slots, but
assumes full responsibility for the cards and their impact on the
hardware and software platform.
24
3. SUPPLEMENTAL INTEGRATION SERVICES
o In rack keyboard, video screen, mouse, KVM switch, monitor shelf, and
keyboard tray are offered for additional charges.
o Professional Services to assist with installation, configuration,
backup/recovery solution design, change management, production or
account management of your Colocation solution are available with 24
hours advanced notice for an additional charge.
4. OPERATING SYSTEM ADMINISTRATION SERVICES
For qualifying customers, Intel will provide the following services for
an additional monthly charge. Professional services may supplement these
services and will be billed by the hour.
o Initial configuration: Intel will prepare and implement an OS build
plan based on the Customer's configuration requirements and written
approval.
o Intel will notify the Customer when patches are available for their
operating system and will negotiate an upgrade time during a Customer
or Data Center Maintenance Window if the customer desires the upgrade.
o Maintenance services: Daily (or periodic) health checks of the system,
and notification and/or remediation of items that are out of Customer
and vendor defined specifications.
5. MONITORING -- BASIC AND EXTENDED APPLICATION
o 24x7x52 monitoring of critical points of failure for basic
infrastructure through Intel's Command Center. Included Server,
Service and Critical URL monitoring plus Ping (where enabled) through
a public IP address. Extended -Application Monitoring may be added for
an additional charge. Please see your Customer Alert and Response
Process for a detailed list of monitors.
o Customer notification via email, or text pager, or telephonic or
voicemail, as specified by customer, when web service-availability is
interrupted.
o Server and Service Summary Report will be provided.
6. BACKUP AND RECOVERY SERVICES
o Backup of operating system and application partition on a daily basis
with retention of 8 versions of the backed up system image for up to
180 days. Note: open or locked files will not be backed up. Backup
performance is not guaranteed due to varied customer hardware,
software, system load and data set characteristics.
25
o Backup Status Report available through the Intel(R)Online Services
Customer Care Portal.
o Database backup and recovery can be provided through Professional
Services. Intel can assist with the design of the backup and recovery
strategy as well as provide the backup/recovery services on demand or
on a regular schedule.
o Additional backups on demand, system recoveries, extended version
maintenance and extended retention are also available for an
additional charge at the customer's request. Full customer system
image restores will require the customer to re-load the operating
system before. Intel can re-Install the backup application and restore
customer data. Open file backups and system image restores are not
performed as part of the standard service.
o Offsite tape storage is available for an additional- charge.
7. CUSTOMER POD FIREWALL SERVICES
o Intel will configure a Customer Pod Firewall in the Customer's
Colocation environment. Services to customize the Firewall to a
specific customer requirement can be provided as an optional service.
o The firewall services provides extended protection for customer
systems, Including the following features:
o Access control lists (ACLS) for a single customer IP address,
implemented on the external facing routers.
o IOS provided firewall maintenance.
o A strong set of default ACLs, allowing only http (port 80) and https
(port 443).
o IOS management of the ACLS within the firewall with the allowance for
customers to change ACLs for an additional fee.
o The customer pod firewall service provides the features listed above.
While firewalls provide a degree of protection for customer systems,
this service does not imply a guarantee of security.
8. LOAD BALANCING
o Load balancing equipment with initial configuration assistance is
available. Dedicated options are available.
o Global Server Load Balancing services will be provided based on the
customer's request and specific configuration requirements.
26
9. TAPE MEDIA MANAGEMENT
o Backup tape media services using a customer-provided or provisioned
tape backup unit located within the customer's cabinet.
o Daily (once per day) placement of designated customer backup tape in
tape drive in accordance with agreed upon tape replacement schedule.
o Customer provides required number of tapes.
o For customers who provide cleaning tapes and an associated cleaning
schedule, Intel will manage the cleaning in accordance with the
customer's schedule.
10. REMOTE HANDS SERVICES
Performed outside the scope of standard Intel support when customers
cannot be present to execute tasks. Customer must explain Remote Hands activity
to Intel personnel. Examples of Remote Hands activities include:
o Simple file transfers between directories;
o Execution of customer designed application scripts;
o Plugging and unplugging equipment, or accessories such as keyboard,
monitor or mouse;
o Rebooting of servers, which is 24x7 boot, reboot or power-down of
customer servers with a 45 minute response time. Multiple customer
requests per day are included to resolve one and the same specific
anomaly. Persistent or daily requests are performed at an extra
charge. A reboot means power cycling the system (power off, wait 15
seconds, power on).
27
SCALABLE DATA STORAGE SERVICE FEATURE SUMMARY
Scalable Data Storage is a managed service provided by Intel Online
Services to meet the high-availability large storage needs of customers desiring
complete e-commerce solutions. The Scalable Data Storage managed service is
offered with selected Co-location, Dedicated Managed, and AppChoice(TM) Managed
service platforms.
Each Scalable Data Storage customer will be provided the following
service features as a part of the basic service offering:
1. MONITORING
24x7x52 monitoring of critical points of failure for basic managed
storage infrastructure through Intel's Command Center.
(a) Proactive monitoring and replacement of infrastructure components.
(b) Platform Management and Maintenance.
(c) Initial setup and configuration of the customer's storage
solution.
(d) Port pair connectivity between servers and Scalable Data Storage
service.
(e) Expanded or emergency storage capacity upon request under the
terms of the Scalable Data Storage Service Level Agreement.
(f) Regularly scheduled maintenance for storage related critical
software patch updates, system configuration and hardware repair
or replacement. Regularly scheduled maintenance times will be
available upon request.
IN ADDITION, THE FOLLOWING SERVICE FEATURES OF SCALABLE DATA STORAGE ARE
OFFERED WHEN INTEL PROVIDES A CUSTOMER WITH DEDICATED MANAGED OR
APPCHOICE(TM) MANAGED SERVICES:
2. BACKUP AND RECOVERY
Backup and Recovery services as set forth in the Dedicated Managed
Service Feature Summary or the AppChoice(TM) Managed Service Feature
Summary.
(a) Additional Platform Management and Maintenance.
(b) Auto failover and i/O load balancing when not in failover provided
through port pair connectivity arid software installed on the
client server.
(c) Monitoring and response to failover or to degradation in
performance of the storage solution-due component failure.
28
NETWORK SERVICES FEATURE SUMMARY
Network Services includes Internet access, NSP loop access to non-IOS
facilities, monitoring of the network, remote administration and geographical
load balancing. Every Intel Online Services (Intel) customer, regardless of
service level, must utilize Network Services.
1. INTERNET ACCESS
Dedicated internet connectivity from Intel's Internet Data Center to the
public Internet based on a number of configurations supported by IOS.
(a) 24x7x52 Internet connectivity at predetermined bandwidth levels on
terms set out in the-Network Services Service Level Agreement.
(b) Online bandwidth usage reports.
(c) VPN access over the Internet configured for client to LAN and LAN
to LAN connections.
2. REMOTE ADMINISTRATION
Remote administration configured for dial access, ISDN, frame relay or
private line.
3. NSP CROSS CONNECT
Customer connections to external central offices of local phone companies
providing access to alternative Internet service providers via Intel's
managed OC-48 fiber optic ring.
(a) Service provided at XX-0, XX-0 or OC-3 levels, as requested by
customer.
4. NETWORK MONITORING
24x7x52 monitoring of critical points of failure for Internet
connectivity through Intel's Command Center.
5. GEOGRAPHIC SERVER LOAD BALANCING
Allows Internet traffic to be re-directed from the server storing content
to another server at a closer location based on the DNS of the end user
customer.
(a) Provides complete web server failover In the event an entire
Internet Data Center becomes non-operational. Web traffic can be
rerouted to other operating web servers.
29
END USER ASSURANCE SERVICE FEATURE SUMMARY
End User Assurance (ETJA) is a collection of tools and reports, which
provide detailed analysis of Internet Health, site performance, and end user
experience data across systems end-to-end.
EUA consists of the following service components:
1. WW INTERNET HEALTH REPORTS
24x7x52 monitoring of near real-time Internet performance health by
demographic/geographic criteria. The customer chooses from primary or
secondary reporting domains for each geographic region from each of the
data center locations.
(a) IOS Data Center Location:
o Santa Clara, California
o Chantilly, Virginia
o Reading, England
o Tokyo, Japan
(b) Target Geographies
o NAM -- North America, South America
o Primary & Secondary targets
o EMEA -- Europe. Middle East, Africa
o Primary & Secondary targets
o APAC -- Asia Pacific, Asia
o Primary & Secondary targets
2. SITE PERFORMANCE ANALYSIS REPORTS
24x7x52 monitoring of near real-time site performance.
(a) Performance as measured with the following criteria:
o Site Traffic
o Average packet delay & packet loss
o URL connect time
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o Transfer Rate
o Fraction of URL errors
3. ADVANCED LOG ANALYSIS -- TIME TAKEN PARETO REPORTS
24x7x52 monitoring of end user experience data. Performance results as
measured and sorted with the following criteria:
o Time Taken Pareto
o Client IP Report -
o HITP Method Used
o Requested URL
o HTTP Status Code
o Win32 Status
o HTTP Version
o Referrer
4. REPORT & LOG STORAGE
24x7x52 available storage and retrieval of EUA reports. ALA/Time Taken
Pareto reports are- stored -at no charge for 14 months.
(a) File types stored:
o Time Taken Pareto Report storage
o Raw Log file storage
(b) Raw Log file storage methods:
o Fixed size capacity in 100MB increments. Old report data is
deleted to make room for new report data not to exceed capacity
limits
o Unlimited data storage. Amount billed determined by average
disk space consumed over 30 day period.
5. PROFESSIONAL CONSULTING SERVICES
Professional consulting services are provided-by Intel staff on a
by-request basis. A scope of work interview and time/cost estimate are
provided for customer review.
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EXHIBIT B - APPLICABLE SLA'S
AppChoice(SM) Managed Hosting Services
Service Level Agreement
This Service Level Agreement ("SLA") shall apply to all -AppChoice5M
Managed Hosting Services and shall be effective between Intel Online Services,
Inc. ("Intel") and the Customer identified in the Master Customer Agreement to
which -this SLA is attached. This SLA shall be subject to the terms and
conditions of the Master Customer Agreement, and all defined terms -shall have
the meaning set forth in the Master Customer Agreement unless separately defined
in this SLA.
Intel warrants to the Customer that it will provide the Services
according to the service guarantees in this SLA for the applicable
Service.
1. GENERAL TERMS AND DEFINITIONS
APPCHOICE(SM) PLATFORM. The AppChoice(SM) Platform is the hardware and
software platform on which the AppChoiceSM Managed Hosting Services run.
CHECK POINTING. Check Pointing is a feature of AppChoice(SM) Managed
Hosting Services that provides a mechanism for rollback of the Customers system
to a known state in the, event that problems occur after the Customer receives
and exercises remote access rights. Upon valid request Intel will perform a
designated back up prior to exercise of remote access rights. Upon closure of
remote access, Intel will have the ability to restore the back up data set if
required by the Customer. If the Customer accesses the platform through
Emergency Privileged Remote Access or requests a back up recovery outside of the
Check Pointing feature, recovery will be initiated from the last known valid
back up.
REMOTE ACCESS. Upon valid request Intel will grant the Customer remote
access (via PC Anywhere for Microsoft NT based systems and SSH 1.0 for
Solaris based systems and Linux) also referred to as root level access.
FOUNDATION MONITORING AND RESPONSE. All AppChoice(SM) Managed Hosting
Services Customers will receive a set of Foundation Monitors and corresponding
data center responses to manage critical events. The Foundation Monitors
comprise the basic set of monitors required to manage the hardware, operating
system and applications included with the service platform, the network and
service availability. When an event alert is triggered via a monitor that
requires a data center response from Intel ("critical event"), Intel will
provide an appropriate Event Response predetermined jointly by Intel and the
Customer.
EXTENDED APPLICATION MONITORING AND RESPONSE. Extended Application
Monitoring is a feature of AppChoice(SM) Managed Hosting Services that provides
additional monitoring capabilities beyond the Customer's Foundation Monitors and
manages the resultant event responses. When an event alert is triggered via a
monitor, Intel will provide an appropriate Event Response that has been
pre-determined by the Customer. Customers may choose Event Responses that are
informational only (Type A), or that require a critical event data center
response from Intel (Type C).
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Intel will document and maintain all Foundation Monitors, Extended
Application Monitors and associated Event Responses for each Customer in
a Customer Alert and Response Process document.
DESCRIPTION OF BUILD, PRODUCTION AND GO LIVE PERIODS. "Build" is the
period- of time between execution of the Master Customer Agreement and hand off
by Intel to the Customer of the contracted servers with hardware, OS and managed
-applications integrated into the AppChoice8M service infrastructure. Build
does-not start until Intel has confirmed receipt of an executed original Master
Customer Agreement or Service Order signed by authorized representatives. Master
Customer Agreements may be received by hard copy or facsimile and Service Order
may be received in accordance with guidelines lined to their dollar amount.
Build may be restarted in the event a Service Order modifying the Master
Customer Agreement or the original Service Order is executed. "Production" is
the period of time between hand off of the solution architecture to the Customer
by Intel Online Services (Build complete) and Go Live. During Production
Customers will load content and Customer provided applications to ready those
solutions for availability to their clients through the public Internet. The "Go
Live" period commences when the Customer's solutions are available to clients
through the Internet.
SERVICE INCIDENT CREDIT. A Service Incident Credit is a credit in a fixed
amount given for failure to meet a defined service quality guarantee. The
amount of the credit is determined by the individual service guarantee.
After -the second failure to meet the guarantee, the Intel Technical
Account Manager will provide the Customer with a written action plan to
ensure adequate resolution of the issue. Failure to meet different
service guarantees may result in the award of multiple Service Incident
Credits.
MAXIMUM TOTAL CREDIT. The Maximum Total Credit means the combined total
Service Incident Credits and Outage Event Credits that a Customer may
receive in a single billing period. The Maximum Total Credit will not
exceed the total of six (6) months of the Customer's total invoice for
any given twelve (12) month billing period. Notwithstanding anything
herein to the contrary, the overall Maximum Total Credits paid by Intel
under this Agreement shall never exceed amounts paid Intel by Customer
Credits will be applied only to the month in which the applicable outage
event or service incident occurred, and -Customers will not be eligible
to receive credits for any service components provided free of charge
during the billing period.
APPCHOICE(SM) MANAGED HOSTING SERVICES SLA
RESPONSE TIME WARRANTY
BACK UP ON DEMAND. Intel will initiate a designated backup within 15
minutes of receiving a valid Customer request or within 15 minutes of a
scheduled initiation time. The time to complete the backup will vary by Customer
solution and data set. No more than 50GB of data will be backed up in a given
backup window.
Failure to meet this guarantee of backup initiation will result in a
Service Incident Credit of $500.
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REMOTE ACCESS. Customers requiring system changes to an AppChoice(SM)
Platform will follow change management procedures designated by Intel for
requesting privileged remote access and Check Pointing. Customer may also
request emergency privileged remote access to expedite Customer's access to the
system. If a Customer requests emergency privileged remote access, Intel will
grant remote access rights without a Check Pointing back up.
PRIVILEGED REMOTE ACCESS. If a Customer requests privileged remote
access, Intel will call the designated Customer contact within 15 minutes of
completion of a successful back up with notification that privileged remote
access has been granted. A Service Incident Credit of $500 will be granted if
Intel fails to meet this guarantee on two separate occasions during a single
month.
EMERGENCY PRIVILEGED REMOTE ACCESS. If a Customer requests emergency
privileged remote access, Intel will call the designated Customer contact with
notification that emergency privileged remote access has been granted within 15
minutes of receiving a valid Customer request.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
BACK UP RECOVERY. If a Customer requires restoration of a data set, Intel
will initiate a recovery from backup within a guaranteed time. This initiation
time period will be based upon the length of time between the recovery date arid
the date of the data set. The times are:
o 8 days: recovery will be initiated within 2 hours
o >8 days to 30 days: recovery will be initiated within 4 hours
o >30 days: recovery will be initiated within 24 hours
Failure to meet this guarantee will result in a Service Incident Credit
of $1000.
ENABLE/DISABLE MONITORS. Intel will disable or enable a Customer's
Foundation and Extended Application Monitors within 15 minutes of receiving a
valid Customer request or within 15 minutes of a scheduled initiation time-.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
EVENT RESPONSES. Intel guarantees that Event Responses will be initiated
within agreed to timeframes when applicable under the Customer Alert and
Response Process document.
Failure to meet one or more of these Event Response time guarantees will
result in a Service Incident Credit of $500.
TROUBLE TICKET OPENING. A trouble ticket will be opened within 15 minutes
of a critical system event (Type C or Foundation monitor alert). A Customer
support engineer will be assigned to the ticket and an Intel call center
representative will attempt to call the designated Customer contact within 15
minutes of receipt of the trouble ticket to acknowledge the assignment.
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Failure to open a customer requested ticket, Intel to credit customer
$500.
EMAIL, OR TEXT PAGER, OR TELEPHONIC OR VOICEMAIL NOTIFICATION. An
informational alert by email, or text pager, or telephonic and/or
voicemail notifying the Customer will be sent to an email, text pager,
telephonic and voicemail service purchased by the Customer and identified
by the Customer for receipt of such alerts within 5 minutes of an event
alert. For critical event (Type C or Foundation monitor alert), Intel
will send an additional operational alert by email, or text pager, or
telephonic or voicemail containing event information and the trouble
ticket ID within 15 minutes of the opening of a trouble ticket.
Intel will not assume responsibility for the receipt of any email, or
text pager, or telephonic and/or voicemail alert or page as the delivery system
is not under the control of Intel. The NOC will document all alerts transmitted
to Customer.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
HARDWARE REPAIR/REPLACEMENT. Intel will grant a Service Incident Credit
in the amount of $500 in the event that Intel fails to initiate hardware
repair or replacement activities within 30 minutes of identification of a
failed hardware component under the exclusive control of Intel.
REMOTE ASSISTANCE SERVICES. As a part of the APPChoice(SM) Managed
Hosting Services, Customers have the option to purchase Remote Assistance
Services on an as-needed basis. Intel will assign a technician and will call the
designated Customer contact within 2 hours of receiving a valid Customer request
for Remote Assistance Services offered by Intel. Customers are responsible for
submitting requests to Intel within the scope of Remote Assistance Services
agreed to by the Customer and Intel.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
QUICK SERVER BUILD INTEGRATION SERVICES. For an incremental charge, the
Customer can select Quick Server Build Integration Services for Build. For
Customers who meet Quick Server Build requirements as outlined by Intel in
supporting collateral, Intel will build the Customer's servers and-turn them
over for acceptance testing and Production within 5 business days of the start
of Build. The built servers will be delivered in accordance with the External
Implementation Plan that is agreed upon between Intel and the Customer prior to
executing the Master Customer Agreement.
If Intel does not meet the 5-business day guarantee, a credit will be
given that is equal to a percentage of the installation set-up fees that are
unique to servers that Quick Server Build services were applied to. The
percentage of set up fees to be credited is as follows:
o <=5 day Quick Server Build delivery -- Service level met
o 6 day Quick Server Build delivery -- 25% set up fee credit
o 7-10 day Quick Server Build delivery -- 50% set up fee credit
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o >10 day Quick Server Build delivery -- 75% set up fee credit
GOOD STANDING. Credit will not be given for events occurring during any
period in which the Customer's account has a past due balance or the Customer is
otherwise in breach of the Master Customer Agreement, without consent of Intel.
Network Service Provider or Internet Outages
o Credit will not be given for outages resulting from network service
provider outages or Internet outages resulting from failures outside
the explicit control of Intel. Examples of these types of outages
include: Corruption in Internet route Information within a Tier I
Internet route server environment;
o Major connectivity failures within or between Tier I Internet service
providers;
o Corruption in Internet route information at any public or private
exchange point;
o Corruption of root level DNS services.
o Intel is required to maintain multiple (more than one) network service
provider connections and reroute internet connectivity to an
available, functioning connection.
CUSTOMER CONDUCT, CUSTOMER-INITIATED OUTAGES & CUSTOMER CODE. Credit will
not be given for events resulting from conduct of Customer, including (I)
negligence of Customer, (ii) a failure--or malfunction resulting from
scripts, applications, equipment, or services provided by Customer, (iii)
outages initiated by Intel at the request or direction of Customer for
maintenance, back up, or other purposes, (iv) outages occurring as a
result of any actions taken by Intel at the request or direction of
Customer, e.g., arising from a request for Remote Assistance Services.
For purposes of clarification, Customer will be solely responsible for
any incident or service failure, and any negative impact on server
availability or performance, due to errant or incorrectly designed or
written application or scripted code provided by the Customer, including
but not limited to any such application or code downloaded, locally
loaded, or Introduced by any other means to Intel web serving, database,
or monitoring infrastructure or any other infrastructure or Services
provided by Intel. Intel will be released from any and all SLA warranties
and remedies associated with any such incident or service failure. This
limitation shall apply, without limitation, to any application or
scripted code that contains bugs, errors in logic, or that yields
unpredictable or negative affects on Intel basic or extended web serving,
database, or monitoring infrastructure platforms or any other
infrastructure or Services provided by Intel. It is-the Customer's
responsibility to ensure that all code downloaded, locally loaded, or
otherwise introduced by Customer is fully tested in accordance with
generally accepted programming practices.
SECURITY SHUT-DOWNS. Credit will not be given for any events resulting
from a Services interruption or shut down due-to circumstances reasonably
believed by Intel to be a significant threat to the normal operation of
the Services, the Intel facility, or access to or integrity of customer
data (e.g., hacker or virus attack). In the event of such an
36
interruption or shutdown, Intel will return Services to normal operation
as soon as reasonably possible.
RIGHT OF TERMINATION
Customer may request termination under the discretionary termination
provisions of the Master Customer Agreement if the Customer experiences a
serious service interruption for two (2) consecutive billing periods, or for
three (3) non-consecutive billing periods during any twelve (12) month period.
Credits for missing the Quick Turn SLA does not apply to this discretionary
termination option.
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APPCHOICE(SM) COLOCATION HOSTING SERVICES
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") shall be effective between Intel
Online Services, Inc. ("Intel") and the Customer identified in the Master
Customer Agreement to which this SLA is attached. This SLA shall apply to
AppChoice Colocation Hosting Services purchased by the Customer that are listed
in the Customer's Master Customer Agreement under the Exhibit C Fee Schedule.
This SLA is supplemented by the separate Network Services SLA and shall be
subject to the terms and conditions of the Master Customer Agreement, and -all
defined terms shall have the meaning set forth in the Master Customer Agreement
unless separately defined in this SLA.
Intel warrants to the Customer that it will provide the Services
according to the service guarantees in this SLA for the applicable Service.
1. GENERAL TERMS AND DEFINITIONS
1.1 SERVICE PLATFORM
The Service Platform is the hardware and software platform on which the
AppChoice Managed Colocation Hosting Services run.
1.2 BASIC MONITORING AND RESPONSE
All AppChoice Colocation Hosting Services Customers will receive a set of
Basic Monitors and corresponding data center responses to manage critical
events. The Basic Monitors comprise the set of monitors required to
manage network and service availability. When an event alert is triggered
via a monitor that requires a data center response from Intel ("critical
event"), Intel will provide an appropriate Event Response predetermined
by Intel and documented in the Customer's Customer Alert and Response
Process.
1.3 EXTENDED APPLICATION MONITORING AND RESPONSE
Extended Application Monitoring is an AppChoice Colocation Hosting
Service option (for a fee) that provides additional monitoring capabilities
beyond the Customer's Basic Monitors and manages the resultant event responses.
When an event alert is triggered via a monitor, Intel will provide art
appropriate Event Response that has been pre-determined -by the Customer.
Customers may choose Event Responses that are informational only (Type A), or
that require a critical event data center response from Intel (Type C).
Intel will document and maintain all Basic Monitors, Extended Application
Monitors and associated Event Responses for each Customer in a Customer Alert
and Response Process document.
1.4 SERVICE INCIDENT CREDIT
A Service Incident Credit Is a credit in a fixed amount given for failure
to meet a defined service quality guarantee. The amount of the credit is
determined by-the individual
38
service guarantee.. After the second failure to meet the guarantee, the
Technical Account Manager will provide the Customer with a written action
plan to ensure adequate resolution of the issue. Failure to meet
different service guarantees may result in the award of-multiple Service
Incident Credits.
1.5 AFFECTED SOLUTION ENVIRONMENT
The Affected Solution Environment is defined as the service component or
group of service components for which normal operation is interrupted as a
result of an associated service failure. For instance, in the event of a Data
Center Facilities Availability failure, the Affected Solution Environment may
include one or more Colocation cabinets, depending on the extent of the SLA
failure.
1.6 OUTAGE EVENT CREDIT
Intel provides service center infrastructure system components for the
Customers hosting solution. In the event that a complete failure of service
center infrastructure and system components under the exclusive control of Intel
continue s for more than 5 minutes and less than 1 hour within one-hour time
period. Intel will provide 1 day of credit. If an outage event or services of
intermittent outage events continues for longer than 1 hour, Intel will provide
one additional day of credit for each additional hour of outage up to the amount
of the Maximum Outage Event Credit for the affected Solution Environment. The
actual credit amount will be daily pro-rated portion of the invoiced amount for
the Affected Solution Environment based on a 30-day billing period. Customers
will not be eligible to receive multiple Outage Event Credits for the same
service component or invoice the item as a result of multiple service failures
or outage events occurring during the same period of time.
1.7 MAXIMUM OUTAGE EVENT CREDIT
The Maximum Outage Event Credit means the total Outage Event Credits that
a Customer may receive in a single billing period.
1.8 MAXIMUM TOTAL CREDIT
The Maximum Total Credit means the combined total Service Incident
Credits and Outage Event Credits that a Customer may receive in a single billing
period. The Maximum Total Credit will not exceed the total of six (6) months of
the Customers total invoice for any given twelve (12) month billing period.
Notwithstanding anything herein to the contrary the overall Maximum Total
Credits paid by Intel under this Agreement shall never exceed amounts paid Intel
by Customer. Credits will be applied only to the month in which the applicable
outage event or service incident occurred and Customers will not be eligible to
receive credits for any service components provided free of charge during the
billing period.
39
2. APPCHOICE COLOCATION HOSTING SERVICES SLA
2.1 DATA CENTER POWER AVAILABILITY
Intel will provide AC power that will be active 100% of the time. An
Outage Event Credit will be provided in the event that the power supply
in a Colocation cabinet fails to provide nominal 110VAC power.
The following guarantees will apply if the Customer has purchased the
associated service as listed on Exhibit C of the Master Customer Agreement or on
a signed Service Order. Some services have a monthly recurring fee while others
are only charged to the Customer when used (usage based).
2.2 BACKUP AND RECOVERY
2.2.1 Back Up On Demand
Intel will initiate a designated back up within 1~ minutes of receiving a
valid Customer request or within 15 minutes of a scheduled initiation
time. The time to complete the back up will vary by Customer solution end
data set. No more than 50GB of data will be backed up in a given backup
window.
Failure to meet this guarantee of back up initiation will result in a
Service Incident Credit of $500.
2.2.2 Back Up Recovery
If a Customer requires restoration of a data set, Intel will initiate a
recovery from back up within a guaranteed time. This initiation time period will
be based upon the length of time between the recovery date and the date of the
archived data set. The times are:
o 8 days: recovery will be initiated within 2 hours
o >8 days to 30 days: recovery will be initiated within 4 hours
o >30 days: recovery will be initiated within 24 hours
Failure to meet this guarantee will result in a Service Incident Credit
of $1000.
2.3 INTEGRATED MONITORING AND RESPONSE (BASIC AND EXTENDED APPLICATION
MONITORING)
2.3.1 Enable/Disable Monitors
Intel will disable or enable a Customer's Basic Managed Colocation and
Extended Application Monitors within 15 minutes of receiving a valid Customer
request or within 15 minutes of a scheduled initiation time.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
40
2.3.2 Event Responses
Intel guarantees that Event Responses will be initiated within agreed to
timeframes when applicable under the Customer Alert and Response Process
document. The NOC will document alt alerts transmitted to Customer.
Failure to meet one or more of these Event Response time or documentation
guarantees will result in a Service Incident Credit of $500.
2.3.2.1 Trouble Ticket Opening
A trouble ticket will be opened within 15 minutes of a critical system
event (Type C or Basic Managed Colocation monitor alert). A Customer support
engineer will be assigned to the ticket and an Intel call center representative
will attempt to call the designated Customer contact within 15 minutes of
receipt of the trouble ticket to acknowledge the assignment.
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
2.3.2.2 Email, or Text Pager, Telephonic or Voicemail, or Text
Pager Notification
An informational alert by email, or text pager, or telephonic and/or
voicemail notifying the Customer will be sent to -an email, text pager,
telephonic and voicemail service purchased by the Customer and identified
by the Customer for receipt of such alerts within 5 minutes of an event
alert. For critical event (Type C or Foundation monitor alert), Intel
xxxx send an additional operational alert by email, or text pager, or
telephonic or voicemail containing event information and the trouble
ticket ID within 15 minutes of the opening of a trouble ticket.
Intel will not assume responsibility for the receipt of any email, or
text pager, or telephonic and/or voicemail alert or page as the delivery
system is not under the control of Intel. The NOC will document all
alerts transmitted to Customer.
2.4 SERVICES - REPAIR/REPLACEMENT
Intel will grant a Service Incident Credit in the amount of $500 in the
event that Intel fails to initiate hardware repair or replacement
activities within 30 minutes of identification of a failed hardware
component that is covered by the Managed Colocation Server Hardware
Maintenance Service.
2.5 REMOTE ASSISTANCE SERVICES
Customers have the option to purchase Remote Assistance Services on an
as-needed basis. Intel will assign a technician and will call the
designated Customer contact within 2 hours of receiving a valid Customer
request for Remote Assistance Services offered by Intel.. Customers are
responsible for submitting requests to Intel within the scope of Remote
Assistance Services agreed to in writing by the Customer and Intel.
41
Failure to meet this guarantee will result in a Service Incident Credit
of $500.
3. ADDITIONAL WARRANTY LIMITATIONS
3.1 SCHEDULED MAINTENANCE
No outage credit shall be given- for outages resulting from Intel
scheduled maintenance activities, not to exceed fifteen (15) minutes.
Outages due to scheduled maintenance in excess of fifteen (15) minutes in
will result in an outage credit unless both parties agreed on the
extension of the fifteen (15) minute maintenance activity.
All scheduled maintenance activities that could -impact multiple
customers simultaneously will occur during a regularly reserved Data Center
Maintenance Window (DCMW). Intel will provide the Customer with advanced
notification of the maintenance activity. The DCMW is specific to the data
center in which the Customer's servers reside.
All scheduled maintenance activities that could impact single customers
will occur during a Customer specified Customer Maintenance Window (CMW) with
notification provided to the Customer in advance. The Customer will specify the
exact CMW time period during integration.
3.2 REQUESTING REMEDIES
All requests for remedies must be submitted to Intel within 10 days of
the event giving rise to the request or within 10 days of when Customer
becomes aware of the event, whichever is later. A description of the
event-must be submitted with the request for remedy. The description
should include the time of the event, duration, any diagnostics
information substantiating the event, and identification of the Affected
Solution -Environment. If the Affected Solution Environment includes a
combination of Services, the Customer must include in the request for
credit an illustration of how the Services are Inter-dependent.
Intel will validate the information provided by Customer against Intel
internal records. - If Intel determines in its reasonable judgment that
the Customer is entitled, to the requested remedy, Intel will credit the
Customer's account as provided in this SLA. Intel will respond to all
requests for remedies within 30 days of submission.
3.3 GOOD STANDING
Credit will not be given for events occurring during any period in which
the Customer's account has a past due balance or the Customer is
otherwise in breach of the Master Customer Agreement, unless agreed by
Intel in advance.
3.4 NETWORK SERVICE PROVIDER OR INTERNET OUTAGES
Credit will not be given for outages resulting from network service
provider outages or Internet outages resulting from failures outside the
explicit control of Intel. Examples of these types of outages include:
42
o Corruption in Internet route information within a Tier 1 Internet
route server environment;
o Major connectivity failures within or between Tier 1 Internet service
providers;
o Corruption in Internet route information at any public or private
exchange point;
o Corruption of root level DNS services;
o Intel is- required to maintain multiple (more than one) network
service provider connections and reroute internet connectivity to an
available, functioning connection.
3.5 CUSTOMER CONDUCT, CUSTOMER-INITIATED OUTAGES & CUSTOMER CODE
Credit will not be given for events resulting from conduct of Customer,
including (i) negligence of Customer, (ii) a failure or malfunction
resulting from scripts, applications, equipment, or services provided by
Customer, (iii) outages initiated by Intel at the request or direction of
Customer for maintenance, back up, or other purposes, (iv) outages
occurring as a result of any actions taken by Intel at the request or
direction of Customer, e.g., arising from a request for Remote Assistance
Services. For purposes of clarification, Customer will be solely
responsible for any incident or service failure, and any negative impact
on server availability or performance, due to errant or incorrectly
designed or written application or scripted code provided by the
Customer, Including but not limited to any such application ~r code
downloaded, locally loaded, or introduced by any other means to Intel web
serving, database, or monitoring infrastructure or any other
infrastructure or Services provided by Intel. Intel will be released from
any and all SLA warranties and remedies associated with any such incident
or service failure. This limitation shall apply, without limitation, to
any application or scripted code that contains bugs, errors in logic, or
that yields unpredictable or negative affects on Intel basic or extended
web serving, database, or monitoring infrastructure platforms or any
other infrastructure or Services provided by Intel. It is the Customers
responsibility to ensure that all code downloaded, locally loaded, or
otherwise Introduced by Customer is fully tested in accordance with
generally accepted programming practices.
3.6 SECURITY SHUT-DOWNS
Credit will not be given for any events resulting from a Services
interruption or shut down due to circumstances reasonably believed by
Intel to be a significant threat to the normal operation of the Services,
the Intel facility, or access to or integrity of customer data (e.g.,
hacker or virus attack). In the event of such an interruption or
shutdown, Intel will return Services to normal operation as soon as
reasonably possible.
4. RIGHT OF TERMINATION
Customer-may request termination under the discretionary termination
provisions of the Master Customer Agreement if the Customer experiences a
serious service interruption for two (2) consecutive billing periods, or for
three (3) non-consecutive billing periods during any twelve (12) month period.
Credits for missing the Quick Turn SLA does not apply to this discretionary
termination option.
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SCALABLE DATA STORAGE SERVICES
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") shall apply to all Scalable Data
Storage Services and shall be effective between Intel Online Services, Inc.
("Intel") and the Customer identified in the Master Customer Agreement to which
this SLA is attached. This SLA shall be subject to the terms and conditions of
the Master Customer Agreement, and all defined terms shall have the meaning set
forth in the Master Customer Agreement unless separately defined in this SLA.
Intel warrants to the Customer that it will provide the Services
according to the service guarantees in this SLA for the applicable Services.
5. SCALABLE DATA STORAGE SERVICES SLA
STORAGE AVAILABILITY. Intel Scalable Data Storage Services are managed
services and are designed to be integrated solutions, and as such Intel will
provide 100% availability for the Services. An Outage Event Credit will be
granted for any period of time during which the Intel storage solution is not
available to the Customer's attached solution environment. The storage solution
is considered to be available if it is capable of storing data content and
delivering data content upon request to the Customer's attached servers.
In the event of a service failure affecting one or more attached servers
or the availability of Network Services, an Outage Event Credit will be
granted for the related components of the storage solution only if:
o the Customer is entitled to an Outage Event Credit for the primary
service failure, and
o the Affected Solution Environment for the primary service failure
includes the related storage solution components.
No Outage Event Credit will be given for outages resulting from failure
of fibre channel cards, SCSI controllers, storage management software,
or-other related components installed on attached colocation servers or
otherwise under the management or control of Customer.
STORAGE SCALABILITY. Intel and the Customer will cooperate to forecast
storage needs on a quarterly basis. Customer requirements of ITB raw or
more per forecast quarter will require Customer commitments in advance to
purchase the capacity in that quarter. Intel will also provide storage
capacity beyond forecasted needs (in 285/100/108 GB raw increments which
varies by data center) according to the following terms:
o The Customer may request up to 576/500/540 GB raw of additional
storage capacity per calendar quarter beyond forecasted needs, and
Intel will provide such capacity within ten (10) days;
o The Customer may request 288/200/216 GB raw of additional storage
capacity per calendar quarter on an emergency basis, and Intel will
provide such emergency capacity within forty-eight (48) hours;
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o Any other increases in storage capacity beyond the committed forecast
by the Customer will be subject to standard industry lead times as
reasonably determined by Intel.
Failure to provide additional storage capacity within the timeframes
described above will result in a Service Incident Credit of $500.
BACKUP & RECOVERY. If the Customer requires restoration of a dataset,
Intel xxxx initiate a recovery from backup within a guaranteed time. This
initiation time period will be based upon the length of time between the
recovery date and the date of the dataset being restored. The times are:
o <8 days: recovery will be initiated within 2 hours
o 8 to 30 days: recovery will be initiated within 4 hours
o >30 days: recovery will be initiated within 24 hours
Failure to meet this guarantee will result in a Service Incident Credit
of$ 1000.
Backups will be performed at standard intervals designated by Intel
unless the Customer elects otherwise and chooses a premium backup/restore
solution. The time to complete the backup will vary by Customer solution
type and dataset.
SERVICE WARNING: If the Customer specifically declines backup services or
is a Co-location Customer, no backup of Customer data will be performed and
Intel will not be able to perform any recovery or other restoration of a backup
dataset. Accordingly, the service guarantee in this Section 1.3 will not be
applicable. A Customer who declines backup services or is a Co-location Customer
acknowledges that there is an increased risk of permanent loss of data due to
data corruption or a storage solution component failure. Those Customers will be
solely responsible for expenses, losses or liabilities resulting from such loss
of data or component failure, and Intel will be released from any SLA warranties
and remedies associated with such an incident.
WARRANTY LIMITATIONS AND DEFINITIONS
AFFECTED SOLUTION ENVIRONMENT. The Affected Solution Environment is
defined as the service component or group of service components for which normal
operation is interrupted as a result of an associated service failure. For
instance, the Affected Solution Environment may include one or more Co-Location,
-Application Choice, or Dedicated Managed Server platforms depending on the
extent of the SLA failure.
OUTAGE EVENT CREDIT. An Outage Event Credit is a credit provided in the
event that a stated availability service level commitment is not met for an
Affected Solution Environment. Intel will provide one (1) day of credit for each
single outage event greater than 5 minutes and less than (1) hour with or each
series of intermittent outage events less than 5 minutes occurring within a
one-hour period. If an outage event or series of-intermittent outage
events-continues for longer than one (1) hour, Intel will provide one (1)
additional day of credit for each additional
45
hour of outage, up to the amount of the Maximum Outage Event Credit for the
Affected Solution Environment. The actual credit amount will be the daily
pro-rated portion of the invoiced amount for the Affected Solution Environment
based on a 30-day billing period. Customers will not be eligible to receive
multiple Outage Event Credits for the same service component or invoice line
item as a result of multiple service failures or outage events occurring during
the same period of time.
MAXIMUM OUTAGE EVENT CREDIT. The Maximum Outage Event Credit means the
total Outage Event Credits that a Customer may receive in a single
billing period.
SERVICE INCIDENT CREDIT. A Service Incident Credit is a credit in a fixed
amount given for failure to meet a defined service quality guarantee. The amount
of the credit is determined by the individual service guarantee.
Failure to meet different service guarantees may result in the award of
multiple Service Incident Credits.
MAXIMUM TOTAL CREDIT. The Maximum Total Credit means the combined total
Service Incident Credits and Outage Event Credits that a Customer may
receive in a single billing period. The Maximum Total Credit will not
exceed the total of six (6) months of the Customer's total Invoice for
any given twelve (12) month billing period. Notwithstanding anything
herein to the contrary, the overall Maximum Total Credits paid by Intel
under this Agreement shall never exceed amounts paid Intel by Customer.
Credits will be applied only to the month in which the applicable outage
event or service incident occurred, and Customers will not be eligible to
receive credits for any service components provided free of charge during
the billing period.
SCHEDULED MAINTENANCE. No outage credit shall be given for outages
resulting from Intel scheduled maintenance activities, not to exceed
fifteen (15) minutes. Outages due to scheduled maintenance in excess of
fifteen (15) minutes in will result in an outage credit unless both
parties agreed on the extension of the fifteen (15) minute maintenance
activity.
All scheduled maintenance activities that could impact multiple customers
simultaneously will occur during a regularly reserved Data Center Maintenance
Window - (DCMW). Intel will provide the Customer with advanced notification of
the maintenance activity. The DCMW is specific to the data center in which the
Customer's servers reside.
All scheduled maintenance activities that could impact single customers
will occur during a Customer specified Customer Maintenance Window (CMW) with
notification provided to the Customer in advance. The Customer will specify the
exact CMW time period during integration.
REQUESTING REMEDIES. All requests for remedies must be submitted to Intel
within 10 days of the event giving rise to the request or within 10 days of when
Customer becomes aware of the event, whichever is later, A description of-the
event must be submitted with the request for remedy. The description should
include the time of the event, duration, any diagnostics information
substantiating the event, and identification of the Affected Solution
Environment, If
46
the Affected Solution Environment includes a combination of services, the
Customer must include in the request for credit an illustration of how the
services are inter-dependent.
Intel will validate the information provided by the Customer against
Intel internal records. If Intel determines in its reasonable judgment that the
Customer is entitled to the requested remedy, Intel will credit the Customer's
account as provided in this SLA. Intel will respond to all requests for remedies
within 30 days of submission.
GOOD STANDING. Credit will not be given for events occurring during any
period in which the Customer's account has a past due balance or the Customer is
otherwise in breach of the Master Customer Agreement, unless agreed by Intel in
advance.
CUSTOMER CONDUCT, CUSTOMER-INITIATED OUTAGES & CUSTOMER CODE. Credit will
not be given for events resulting from conduct of the Customer, including (i)
negligence of the Customer, (ii) a failure or malfunction resulting from
scripts, applications, equipment, or services provided by the Customer, (iii)
-outages -initiated by Intel at the request or direction of the Customer for
maintenance, back up, or other purposes, (iv) outages occurring as a result of
arty actions taken by Intel at the request or direction of the Customer, e.g.,
arising from a request for Remote Assistance Services. For purposes of
clarification, the Customer will be solely responsible for any incident or
service failure, and any negative impact on server availability or performance,
due to errant or incorrectly designed or written application or scripted code
provided by the Customer, including but not limited to any such application or
code downloaded, locally loaded, or introduced by any other means to Intel web
serving, database, or monitoring infrastructure or any other infrastructure or
Services provided by Intel. Intel will be released from any arid all SLA
warranties and remedies associated with any such incident or service failure.
This limitation shall apply, without limitation, to any application or, scripted
code that contains bugs, errors in logic, or that yields unpredictable or
negative effects on Intel basic or extended web serving, database, or monitoring
infrastructure platforms or any other infrastructure or services provided by
Intel. It is the Customer's responsibility to ensure that all code downloaded,
locally loaded, or otherwise introduced by Customer is fully tested in
accordance with generally accepted programming practices.
SECURITY SHUT-DOWNS. Credit will not be given for any events resulting
from an interruption or shut down of the Services due to circumstances
reasonably believed by Intel to be a significant threat to the normal operation
of the Services, the Intel facility, or access to or integrity of customer data
(e.g., hacker or virus attack). In the event of such an interruption or
shutdown, Intel will return Services to normal operation as soon as reasonably
possible.
RIGHT OF TERMINATION
Customer may request termination under the discretionary termination
provisions of the Master Customer Agreement if the Customer experiences a
serious service interruption for two (2) consecutive billing periods, or for
three (3) non-consecutive billing periods during any twelve (12) month period.
Credits for missing the Quick Turn SLA does not apply to this discretionary
termination option.
47
NETWORK SERVICES
SERVICE LEVEL AGREEMENT
This Service Level Agreement ("SLA") shall apply to all Network Services
and shall be effective between Intel Online Services, Inc. ("Intel") and the
Customer identified in the Master Customer Agreement to which this SLA is
attached. This SLA shall be subject to the terms and conditions of the Master
Customer Agreement, and all defined terms shall have the meaning set forth in
the Master Customer Agreement unless separately defined in this SLA.
Intel warrants to Customer that it will provide the Services according to
the service guarantees in this SLA for the applicable Service.
1. NETWORK SERVICES SLA
INTERNET AVAILABILITY. Intel data centers provide high availability
Internet connectivity for our Customers' solution environments. For Internet
connectivity services, an Outage Event Credit will be granted for any period of
time during which the Intel IP network is not available to the Customer's
solution environment or any period of time during which the Intel network is not
reachable from the Internet, resulting in the inability of Customer's solution
environment to deliver content to a user on the Internet.
ADDITIONAL WARRANTY LIMITATIONS AND DEFINITIONS -
AFFECTED SOLUTION ENVIRONMENT. The Affected Solution Environment is
defined as the service component or group of service components for which normal
operation is interrupted as a result of an associated service failure. For
instance, the Affected Solution Environment may include one or more Co-Location,
Application Choice, or Dedicated Managed Server platforms depending on the
extent of the SLA failure.
OUTAGE EVENT CREDIT. An Outage Event Credit is a credit provided in the
event that a stated availability service level commitment is not met for an
Affected Solution Environment. Intel will provide one (1) day of credit for each
single outage event greater than 5 minutes and less than (1) hour with or each
series of intermittent outage events less than 5 minutes occurring within a
one-hour period. If an outage event or series of intermittent outage events
continues for longer than one (1) hour, Intel will provide one (1) additional
day of credit for each additional hour of outage, up to the amount of the
Maximum Outage Event Credit for the Affected Solution Environment. The actual
credit amount will be the daily pro-rated portion of the invoiced amount for the
Affected Solution Environment based on a 30-day billing period. Customers will
not be eligible to receive multiple Outage Event Credits for the same service
component or invoice line item as a result of multiple service failures or
outage events occurring during the same period of time.
MAXIMUM OUTAGE EVENT CREDIT. The Maximum Outage Event Credit means the
total Outage Event Credits that a Customer may receive in a single
billing period.
MAXIMUM TOTAL CREDIT. The Maximum Total Credit means the combined total
Service Incident Credits and Outage Event Credits that a Customer may
receive in a single billing period. The Maximum Total Credit will not
exceed the total of six (6) months of the
48
Customer's total invoice for any given twelve (12) month billing period.
Notwithstanding anything herein to the contrary, the overall Maximum
Total Credits paid by Intel Under this Agreement shall never exceed
amounts paid Intel by Customer. Credits will be applied only to the month
in which the applicable outage event or service incident occurred, and
Customers will not be eligible to receive credits for any service
components provided free of charge during the billing period.
SCHEDULED MAINTENANCE. No outage credit shall be given for outages
resulting from Intel scheduled maintenance activities, not to exceed
fifteen (15) minutes. Outages due to scheduled maintenance in excess of
fifteen (15) -minutes in will result in an outage credit unless both
parties agreed on the extension Of the fifteen (15) minute maintenance
activity.
All scheduled maintenance activities that could impact multiple customers
simultaneously will occur during a regularly reserved Data Center Maintenance
Window (DCMW). Intel will provide the Customer with advanced notification of the
maintenance activity. The DCMW is specific to the data center in -which the
Customer's servers reside.
All scheduled maintenance activities that could impact single customers
will occur during a Customer specified Customer Maintenance Window (CMW) with
notification provided to the Customer in advance. The Customer will specify the
exact CMW time period during integration.
REQUESTING REMEDIES. All requests for remedies must be submitted to Intel
within 10 days of the event giving rise to the request or within 10 days of when
Customer becomes aware of the event, whichever is later. A description of the
event must be submitted with the request for remedy. The description should
include the time of the event, duration, any diagnostics information
substantiating the event) and identification of the Affected Solution
Environment. If the Affected Solution Environment includes a combination of
Services, the Customer must include in the request for credit an illustration of
how the Services are inter-dependent.
Intel will validate the information provided by Customer against Intel
internal records. If Intel determines in its reasonable judgment that the
Customer is entitled to the requested remedy, Intel will credit the Customer's
account as provided in -this SLA. Intel will respond to all requests for
remedies within 30 days of submission.
GOOD STANDING. Credit will not be given for events occurring during any
period in which the Customer's account has a past due balance or the Customer is
otherwise in breach of the Master Customer Agreement, unless agreed by Intel
in-advance.
NETWORK SERVICE PROVIDER OR INTERNET OUTAGES. Credit will not be given
for outages resulting from network service provider outages or Internet outages
resulting from failures outside the explicit control of Intel. Examples of these
types of outages include:
o Corruption in Internet route information within a Tier 1 Internet
route server environment;
o Major connectivity failures within or between Tier 1 Internet service
providers;
49
o Corruption in Internet route information at any public or private
exchange point;
o Corruption of root level DNS services.
o Intel is required to maintain multiple (more than one) network service
provider connections and reroute internet connectivity to an
available, functioning connection.
CUSTOMER CONDUCT, CUSTOMER-INITIATED OUTAGES & CUSTOMER CODE. Credit will
not be given for events resulting from conduct of Customer, including (i)
negligence of Customer, (ii) a failure or malfunction resulting from scripts,
applications, equipment, or services provided by Customer, (iii) outages
initiated by Intel -at the request or direction of Customer for maintenance,
back up, or other purposes, (iv) outages occurring as a result of any actions
taken by Intel at the request or direction of Customer, e.g., arising from a
request for Remote Assistance Services. For purposes of clarification, Customer
will be solely responsible for any incident or service failure, and any negative
impact on server availability or performance, due to errant or incorrectly
designed or written application or scripted code provided by the Customer,
including but not limited to any such application or code downloaded, locally
loaded, or introduced by-any other means to Intel web serving, database, or
monitoring infrastructure or any other infrastructure or Services provided by
Intel. Intel will be released from any and all SLA warranties and remedies
associated with any such incident or service failure. This limitation shall
apply, without limitation, to any application or scripted code that contains
bugs, errors in logic, or that yields unpredictable or negative affects on Intel
basic or extended web serving, database, or monitoring infrastructure platforms
or any other infrastructure or Services provided by Intel. It is the Customer's
responsibility to ensure that all code downloaded, locally -loaded, or otherwise
introduced -by Customer is fully tested in accordance with generally accepted
programming practices.
SECURITY SHUT-DOWNS.
Credit will not be given for any events resulting from a Services
interruption or shut down due to circumstances reasonably believed by Intel to
be a significant threat to the normal operation of the Services, the Intel
facility, or access to or integrity of customer data (e.g., hacker or virus
attack). In the event of such an interruption or shutdown, Intel will return
Services to normal operation as soon as reasonably possible.
RIGHT OF TERMINATION.
Customer may request termination under the discretionary termination provisions
of the Master Customer Agreement if the Customer experiences a serious service
interruption for two (2) consecutive billing periods, or for three (3)
non-consecutive billing periods during any twelve (12) month period. Credits for
missing the Quick Turn SLA does not apply to this discretionary termination
option.
50
EXHIBIT B
PRICE SCHEDULE
(ATTACHED)
51
EXHIBIT C -- FEE SCHEDULE
Pricing proposal for Atomica
Offer valid for 30 days from November 5, 2001
Prices are budgetary and subject to change due to final customer requirements
and service offerings
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
AppChoice Managed Heating Service-Web Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
001- AppChoice web Oval Server $310 $1,457 8 $7,440 $11,656
1175585 platform using __________
Intel Architecture- __________
based 2-way Server __________
with Apache &
RedHat Linux
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
Colocation Services Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
--------------------------------------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
001-51- Colocation cabinet __________ Cabinet $1,500 $800 1 $1,500 $800
50756 __________
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
Network Service-Burst Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
001-41- Burstable __________ Base $900 $960 1 $900 $960
34774 Internet access __________ Offering
with 2 Mbps min
and 19 Mbps max
usage
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
Incremental Mbps $1,100 Reference Reference
Mbps used for
2/10 burstable
internet access
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
Network Service-Connectivity Options Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
001-41- Secured __________ Cross $450 $300 1 $450 $300
04369 connectivity __________ Connect
between managed __________
hosting and
colocation
environment
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
Other Service Offerings Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
Extended __________ Monitor $0 $60 2 $0 $120
Monitors - Type __________
A response in
colo
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
Daily Backup __________ Server $600 1 $0 $600
__________
---------------------------------------------------------------------------------------------------------------------------
52
=============================================================================
TOTAL CHARGES SUMMARY
-----------------------------------------------------------------------------
Set-Up Fees Summary Extended Set-Up Fee
------------------------------------------------------ ----------------------
Total Set Up Fees (discounted) $10,290
------------------------------------------------------ ----------------------
Monthly Cycle Fees Summary Extended Monthly Fee
------------------------------------------------------ ----------------------
Total Monthly Cycle Fees (discounted) $14,426
=============================================================================
---------------------------------------------------------------------------------------------------------------------------
Usage or
Set-up Monthly One Time Extended Extended
Fee Fee per Fee per Fee per One Time Monthly
INTEL-SCS Migration Consulting Services Metric Unit Unit Unit Quality Fee Fee
---------------------------------------------------------------------------------------------------------------------------
----------- ------------------- ------------- ---------- -------- ---------- ----------- ----------- ------------ ---------
Consulting __________ Per $75,000 - 1 WAIVED
Services* __________ Project $125,000
---------------------------------------------------------------------------------------------------------------------------
*Intel Solution Services will require Atomica's commitment to the following
items for successful implementation of migrating from Sun to IA.
- 2 to 5 hour meeting with appropriate Atomica engineering to scope the
project.
- Engineering support for development of the migration plan and
available as needed for implementation and deployment
- Commitment to services via a mutually agreed upon Statement of Work
(SOW). This document will be produced following the initial scope
discovery meeting.
In addition the customer will receive the 1st two months of the contract free of
charge.
These prices are fixed for a period of 24 months from the signature date of this
contract.
Continued fee schedule:
The above pricing, including discounts and/or waiver of fees, is provided
to Customer contingent upon Customer completing the full Term of the
Agreement (or Service Order if applicable). Unless otherwise expressly
provided in this Agreement, if this Agreement (or Service Order) is
terminated prior to expiration of the Term for any reason other than
breach by Intel, then Customer shall be required, at a minimum and in
addition to any other rights and remedies Intel may have, to reimburse
Intel for such discounts and/or waiver of fees. -
The above discounts shall not apply to any additional Services purchased
by Customer beyond the Services described in the above configuration (ie.
not to a new customer pod). New services or additional services requiring
a new customer pod will be at List Pricing.
53
SCHEDULE C
JOINT NONDISCLOSURE AND CONFIDENTIALITY
The following terms and conditions pertaining to nondisclosure and
confidentiality are incorporated into the SAVVIS Master Customer Agreement (the
"Agreement") by reference, and contain the entire agreement between SAVVIS and
the Customer with respect to such subject matter:
1. In connection with the Agreement, SAVVIS and Customer may find it
beneficial to disclosed to the other party information that the disclosing party
considers to be either confidential and/or proprietary in nature (the
"Information"). Such Information may include, but is not necessarily limited to,
business plans, analyses, forecasts, predictions or projections, customer
information, technical information, business models, pricing strategies,
marketing ideas, sales data, sales projections, financing plans, valuations,
capitalization, budgets and other financial information. It is specifically
understood and agreed that all Information will be deemed confidential and
proprietary.
2. With respect to Information provided in connection with the Agreement,
the party to whom the Information Is disclosed shall: (a) maintain the
Information in strict confidence; (b) protect the Information with the same
degree of care as the receiving party would treat its own confidential
information; (c) advise those persons to whom the Information is disclosed of
their obligation to maintain the confidentiality of the Information and require
any person or entity to whom the Information is disclosed to be bound by the
terms and provisions set forth herein; and (d) use the Information only for the
purposes described in the recitals hereto, except as may otherwise be agreed
upon by the parties in writing.
3. The party to whom the Information is disclosed shall have no obligation
to preserve the proprietary nature of any Information which: (a) was previously
known to it free of any obligation to keep it confidential; (b) is disclosed to
third parties by the disclosing party without restrictions; (c) is or becomes
publicly available by other than unauthorized disclosure; (d) is independently
developed by it; or (e) subject to the provisions of Section 4 of this Schedule,
is required to be disclosed pursuant to a court order or required by any
governmental authority or agency, and prompt written notice of such order or
requirement is given to the disclosing party.
4. In the event that (he receiving party becomes legally compelled by
deposition, interrogatory, request for documents or other similar process or
shall be advised by counsel to disclose any of the Information, the receiving
party shall provide the disclosing party-with prompt written notice of such
requirement, unless such order explicitly excludes such notice, in order to
afford the disclosing party (he opportunity to seek an appropriate protective
order or other appropriate remedy.
5. No failure or delay by one party-in enforcing its rights hereunder shall
operate as a waiver of such right or preclude the exercise of any other or
further right, power or privilege hereunder.
54
6. Upon demand, all Information, together with any notes, analyses or copies
thereof, shall immediately be returned to the party requesting the same.
7. The obligations to protect the confidentiality of Information received
from the other party shall continue for a period of two (2) years from the date
of receipt of such Information and shall survive termination of the Agreement
8. In the event the receiving party commits a breach of, or threatens to
commit a breach of its obligations hereunder, the disclosing party shall have
the right to seek and obtain all judicial relief (including; but not limited to,
injunctive or other equitable relief, and monetary damages, interest and
attorney's fees and expenses) as may be ordered or awarded by a court of
competent jurisdiction.
55
SCHEDULE D
ADDITIONAL AGREEMENT TERMS AND CONDITIONS
The following language shall be added to Section 2 of the Agreement:
"For transitioned (Intel) Services, billing of monthly fees will commence
as -of the date that SAVVIS transitions the Services to the SAVVIS helpdesk, as
determined by SAVVIS (also a `Billing Commencement Date")."
"In the event SAVVIS is unable to activate any of the Services due to any
reason, delay or Issue caused either directly or indirectly by the Customer or
its agents, such Service will be deemed transitioned and SAVVIS shall commence
billing when SAVVIS is ready to transition or deliver such Service."
The-following language shall be added Section 5.1 of the Agreement:
"Payment shall be made without setoff or demand."
Section 5.1 shall be modified as follows:
"Remit Checks To: Remit Wires To:
SAVVIS Communications Bank of America
00000 Xxxxxxxxx Xxxxx Xxxxxxxx, XX
Xxxxxxx, Xxxxxxxx, XXX 00000 ABA #000000000
Attn: SAVVIS Finance, Accounts Receivables For the Account of SAVVIS
Communications: #004127084675"
The following language shall be added to and modify Section 6 of the
Agreement:
"For the avoidance of doubt, the transitioned (Intel) Services shall be
for a period of 1 year(s) from the Billing Commencement Date for such Services."
"For any additional/new services, Service Orders, changes, or upgrades
("Addition(s)"), each Addition ordered shall have a minimum term of 1 year(s)
commencing from the Billing Commencement Date of the Addition requested, unless
otherwise agreed to by the parties. Any Addition extending past the then-current
Term of this Agreement shall be completed as If this Agreement remained fully in
effect, and this Agreement shall be deemed extended through the termination date
of the Addition."
The following language shall be added to end of Section 9 of
the-Agreement:
"This indemnity shall be subject to the disclaimers or warranty,
limitations of liability, set forth hereunder and the remedies provided for In
the SLA which shall be Customer's sole remedy for SAVVIS' breach of the SLA."
The following language-shall be added to end of Section 15.1 of the
Agreement:
"For bona tide disputes of a monetary nature, either party may submit the
dispute to a court of competent jurisdiction in the Commonwealth of Virginia."
56
Section 15 shall be modified to the extent as follows:
"County of Washington or Multnomah, Oregon' shall be deleted and replaced
with `District of Columbia"
Section 15,-4 shall be modified to the extent as follows:
"State of Delaware' shall be deleted and replaced with "Commonwealth of
Virginia"
Notice to SAVVIS in Section 16 shall be modified as follows:
"If to SAVVIS With a copy to
SAVVIS Communications Corporation SAVVIS Communications Corporation
00000 Xxxxxxxxx Xxxxx 00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx, XXX 00000 Xxxxxxx, Xxxxxxxx, XXX 00000
Attn: Finance Department, Controller Attn: Legal Department, General Counsel
For all cancellation/disconnection, upgrades, or termination notices:
SAVVIS Communications Corporation
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx, XXX 00000
Attn: Client Solutions'
The following provision shall be an additional provision to the
Agreement:
"In the event that Customer terminates the Agreement as a result of a
business downturn that results in the closing of Customer's business operations,
Customer shall be liable for the services provided up to and including the date
of termination, any associated costs with. the removal of the equipment and
software, and any third party changes that SAVVIS incurs or will incur on the
terminated service. Termination shall be effective 30 days from SAVVIS' receipt
of such notice."
Exhibit A-. Feature Summary for Hosting, Section 4 -- Solution Management
and Maintenance, Subsection (f) --Customer Change Management, shall be modified
as follows:
"Customer Change Management - five customer-initiated -change request
points per month included. Additional requests will be subject to additional
charges based on High or Urgent priority level."
57
