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EXHIBIT 10.19
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
THIS INTERNET DATA CENTER SERVICES AGREEMENT (the "Agreement") is made effective
as of the Submission Date (March 31, 1999) indicated in the initial Internet
Data Center Services Order Form accepted by Exodus, by and between Exodus
Communications, Inc. ("Exodus") and the customer identified below ("Customer").
PARTIES:
CUSTOMER NAME: nFRONT
ADDRESS: 000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
EXODUS COMMUNICATIONS, INC.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
1. INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, during the term of
this Agreement, Exodus will provide to Customer the services described in the
Internet Data Center Services Order Form(s) ("IDC Services Order Form(s)")
accepted by Exodus, or substantially similar services if such substantially
similar services would provide Customer with substantially similar benefits
("Internet Data Center Services"). All IDC Services Order Forms accepted by
Exodus are incorporated herein by this reference, each as of the Submission Date
indicated in such form.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC Services Order
Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services, other
than Setup Fees, indicated in the initial IDC Services Order Form shall commence
on the earlier to occur of (i) the "Installation Date" indicated in the initial
IDC Services Order Form, regardless of whether the Customer has commenced use of
the Internet Data Center Services. Unless Customer is unable to install the
Customer Equipment and/or use the Internet Data Center Services by the
Installation Date due to the fault of Exodus, then billing will not begin until
the date Exodus has remedied such fault and (ii) the date the "Customer
Equipment" (Customer's computer hardware and other tangible equipment, as
identified in the Customer Equipment List which is incorporated herein by this
reference) is placed by Customer in the "Customer Area" (the portion(s) of the
Internet Data Centers, as defined in Section 3.1 below, made available to
Customer hereunder for the placement of Customer Equipment) and is operational.
All Setup Fees will be billed upon receipt of a Customer signed IDC Services
Order Form. In the event that Customer orders additional Internet Data Center
Services, billing for such services shall commence on the date Exodus first
provides such additional Internet Data Center Services to Customer or as
otherwise agreed to by Customer and Exodus.
2.3 Billing and Payment Terms. Customer will be billed monthly in advance of
the provision of Internet Data Center Services, and payment of such fees will be
due within thirty (30) days of the date of each Exodus invoice.
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All payments will be made in U.S. dollars. Late payments hereunder will accrue
interest at a rate of one and one-half percent (1 1/2%) per month, or the
highest rate allowed by applicable law, whichever is lower. If Customer is
delinquent in its payments to Exodus, then upon written notice to Customer,
Exodus may modify the payment terms to require full payment before the provision
of Internet Data Center Services or other assurances to secure Customer's
payment obligations hereunder.
2.4 Taxes. All payments required by this Agreement are exclusive of all
national, state, municipal or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding taxes and
obligations and other levies now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, except for taxes based on
Exodus' net income.
3. CUSTOMER'S OBLIGATIONS.
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and regulations and
Exodus' general rules and regulations relating to its provision of Internet Data
Center Services, as updated by Exodus from time to time ("Rules and
Regulations"). Customer acknowledges that Exodus exercises no control whatsoever
over the content of the information passing through its sites containing the
Customer Area and equipment and facilities used by Exodus to provide Internet
Data Center Services ("Internet Data Centers"), and that it is the sole
responsibility of Customer to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
3.2 Customer's Costs. Customer agrees that it will be solely responsible,
and at Exodus's request will reimburse Exodus, for all costs and expenses (other
than those included as part of the Internet Data Center Services and except as
otherwise expressly provided herein) it incurs in connection with this Agreement
provided that such costs and expenses are approved by Customer.
3.3 Access and Security. Customer will be fully responsible for any charges,
costs, expenses (other than those included in the Internet Data Center Services
or to be provided by Exodus as set forth in this Agreement), that may result
from its use of, or access to, the Internet Data Centers and/or the customer
Area including but not limited to any unauthorized use of any access devices
provided by Exodus hereunder. Except with the advanced written consent of
Exodus. Customer's access to the Internet Data Centers will be limited solely to
the individuals identified and authorized by Customer to have access to the
Internet Data Centers and the Customer Area in accordance with this Agreement,
as identified in the Customer Registration Form, as amended from time to time,
which is hereby incorporated by this reference ("Representatives").
3.4 No Competitive Services. Customer may not at any time permit any
Internet Data Center Services to be utilized for the provision of any services
that compete with any Exodus services, with Exodus' prior written consent.
3.5 Insurance.
(a) Minimum Levels. Customer will keep in full force and effect during the
term of this Agreement: (i) comprehensive general liability insurance in an
amount not less than $1 million per occurrence for bodily injury and property
damage; (ii) employer's liability insurance in an amount not less than $1
million per occurrence; and (iii) workers' compensation insurance in an amount
not less than that required by applicable law. Customer also agrees that it
will, and will be solely responsible for ensuring that its agents (including
contractors and subcontractors) maintain, other insurance at levels no less than
those required by applicable law and customary in Customer's and its agents'
industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish Exodus with certificates
of insurance which evidence the minimum levels of insurance set forth above.
(c) Customer will notify Exodus of any cancellation or material change in
coverage required in Section 3.5(a).
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products, including
the terms and conditions of this Agreement ("Confidential Information").
Confidential Information will
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include, but not be limited to, each party's proprietary software and customer
information. Each party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly permitted by this
Agreement, nor disclose to any third party (except as required by law or to that
party's attorneys, accountants and other advisors as reasonably necessary), any
of the other party's Confidential Information and will take reasonable
precautions to protect the confidentiality of such information.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is know to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment. Customer represents and warrants that it owns or has
the legal right and authority, and will continue to own or maintain the legal
right and authority during the term of this Agreement, to place and use the
Customer Equipment as contemplated by this Agreement. Customer further
represents and warrants that its placement, arrangement, and use of the Customer
Equipment in the Internet Data Centers complies with the Customer Equipment
Manufacturer's environmental and other specifications.
(b) Customer's Business. Customer represents and warrants that Customer's
services, products, materials, data, information and Customer Equipment used by
Customer in connection with this Agreement as well as Customer's and its
permitted customers' and users' use of the Internet Data Center Services
(collectively, "Customer's Business") does not as of the Installation Date, and
will not during the term of this Agreement operate in any manner that would
violate any applicable law or regulation.
(c) Rules and Regulations. Customer has read the Rules and Regulations
provided to it and represents and warrants that Customer and Customer's Business
are currently in full compliance with the Rules and Regulations, and will remain
so at all times during the term of this Agreement.
(d) Breach of Warranties. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any other
remedies available at law or in equity, Exodus will have the right immediately,
in Exodus' sole discretion, to suspend any related Internet Data Center Services
if deemed reasonably necessary by Exodus to prevent any harm to Exodus and its
business.
5.2 Warranties and Disclaimers by Exodus.
(a) Service Level Warranty. In the event Customer experiences any of the
following and Exodus determines in its reasonable judgment that such inability
was caused by Exodus' failure to provide Internet Data Center Services for
reasons within Exodus' reasonable control and not as a result of any actions or
inactions of Customer or any third parties (including Customer Equipment and
third party equipment), Exodus will, upon Customer's request in accordance with
paragraph (iii) below, credit Customer's account as described below:
(i) Inability to Access the Internet (Downtime). If Customer is unable to
transmit and receive information from Exodus' Internet Data Centers (i.e.,
Exodus' LAN and WAN) to other portions of the Internet because Exodus failed to
provide the Internet Data Center Services for more than fifteen (15) consecutive
minutes, Exodus will credit Customer's account the pro-rata connectivity charges
(i.e., all bandwidth related charges) for one (1) day of service, up to an
aggregate maximum credit of connectivity charges for seven (7) days of service
in any one (1) calendar month. Exodus' scheduled maintenance of the Internet
Data Centers and Internet Data Center Services, as described in the Rules and
Regulations, shall not be deemed to be a failure of Exodus to provide Internet
Data Center Services. For purposes of the foregoing, "unable to transmit and
receive" shall mean sustained packet loss in excess of 50% based on Exodus'
measurements.
(ii) Packet Loss and Latency. Exodus does not proactively monitor the packet
loss or transmission latency of specific customers. Exodus does, however,
proactively monitor the aggregate packet loss and transmission latency
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within its LAN and WAN. In the event that Exodus discovers (either from its own
efforts or after being notified by Customer) that Customer is experiencing
packet loss in excess of one percent (1%) ("Excess Packet Loss") or transmission
latency in excess of 120 milliseconds round trip time (based on Exodus'
measurements) between any two Internet Data Centers within Exodus' U.S. network
(collectively, "Excess Latency", and with Excess Packet Loss "Excess Packet
Loss/Latency"), and Customer notifies Exodus (or confirms that Exodus has
notified Customer), Exodus will take all actions necessary to determine the
source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency; Notification of
Customer. Within two (2) hours of discovering the existence of Excess Packet
Loss/Latency, Exodus will determine whether the source of the Excess Packet
Loss/Latency is limited to the Customer Equipment and the Exodus equipment
connecting the Customer Equipment to Exodus' LAN ("Customer Specific Packet
Loss/Latency"). If the Excess Packet Loss/Latency is not a Customer Specific
Packet Loss/Latency, Exodus will determine the source of the Excess Packet
Loss/Latency within two (2) hours after determining that it is not a Customer
Specific Packet Loss/Latency. In any event, Exodus will notify Customer of the
source of the Excess Packet Loss/Latency within sixty (60) minutes after
identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the Excess Packet Loss/Latency
remedy is within the sole control of Exodus, Exodus will remedy the Excess
Packet Loss/Latency within two (2) hours of determining the source of the Excess
Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from outside of
the Exodus LAN or WAN, Exodus will notify Customer and will use commercially
reasonable efforts to notify the party(ies) responsible for the source and
cooperate with it (them) to resolve the problem as soon as possible.
(C) Failure to Determine Source and/or Resolve Problem. In the event that
Exodus is unable to determine the source of and remedy the Excess Packet
Loss/Latency within the time periods described above (where Exodus was solely in
control of the source), Exodus will credit Customer's account the pro-rata
connectivity charges for one (1) day of service for every two (2) hours after
the time periods described above that is takes Exodus to resolve the problem, up
to an aggregate maximum credit of connectivity charges for seven (7) days of
service in any one (1) month.
(iii) Customer Must Request Credit. To receive any of the credits described
in this section 5.2(a), Customer must notify Exodus within seven (7) days from
the time Customer becomes eligible to receive a credit. Failure to comply with
this requirement will forfeit Customer's right to receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit. In the event that
Customer is entitled to multiple credits hereunder arising from the same event,
such credits shall not be cumulative and Customer shall be entitled to receive
only the maximum single credit available for such event. In no event will Exodus
be required to credit Customer in any one (1) calendar month connectivity
charges in excess of seven (7) days of service. A credit shall be applied only
to the month in which there was the incident that resulted in the credit.
Customer shall not be eligible to receive any credits for periods in which
Customer received any Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems. If, in any single calendar
month, Customer would be able to receive credits totaling fifteen (15) or more
days (but for the situation in paragraph (iv) above) resulting from three (3) or
more events during such calendar month or, if any single event entitling
customer to credits under paragraph 5.2(a)(i) exists for a period of eight (8)
consecutive hours, then, Customer may terminate this Agreement for cause and
without penalty by notifying Exodus within five (5) days following the end of
such calendar month. Such termination will be effective thirty (30) days after
receipt of such notice by Exodus.
THIS WARRANTY DOES NOT APPLY TO ANY INTERNET DATA CENTER SERVICES THAT EXPRESSLY
EXCLUDE THIS WARRANTY (AS DESCRIBED IN THE SPECIFICATION SHEETS FOR SUCH
PRODUCTS). THIS SECTION 5.2(a) STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES [P0LICIES?].
(b) Year 2000 Performance Compliance. Exodus represents and warrants that
all IDC Services will (1) correctly handle date information before, during and
after January 1, 2000, accepting date input, providing date output and
performing calculation on dates or portions of dates; (2) function accurately
and without interruption before, during and after January 1, 2000 without
changes in operation associated with the advent of the new century assuming
correct configuration; (3) respond to two digit date input in a way that
resolves the ambiguity as to
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century in a disclosed, defined and pre-determined manner; (4) store and provide
output of date information in ways that are unambiguous as to century; and (5)
manage the leap occurring in the year 2000, following the quad-centennial rule.
In the event of any breach of the warranties under this Section 5.2(b),
Customer's sole remedy shall be its ability to terminate this Agreement.
(c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN SUBSECTION
(a) ABOVE, THE INTERNET DATA CENTER SERVICES ARE PROVIDED ON AN "AS-IS" BASIS,
AND CUSTOMER'S USE OF THE INTERNET DATA CENTER SERVICES IS AT ITS OWN RISK.
EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(d) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM EXODUS'
INTERNET DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN
LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY
THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN
PRODUCE SITUATIONS IN WHICH EXODUS' CUSTOMERS' CONNECTIONS TO THE INTERNET (OR
PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH EXODUS WILL USE
COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY
AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR.
ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO
SUCH EVENTS.
6. LIMITATIONS OF LIABILITY.
6.1. Personal Injury. EACH REPRESENTATIVE AND ANY OTHER PERSONS VISITING
THE INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO
LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER
THAN EXODUS' NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damages to Customer Equipment or Business. EXODUS ASSUMES NO LIABILITY
FOR ANY DAMAGE TO, OR LOSS RELATING TO, CUSTOMER'S BUSINESS RESULTING FROM ANY
CAUSE WHATSOEVER. EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY
CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS' NEGLIGENCE OR
WILLFUL MISCONDUCT. TO THE EXTENT EXODUS IS LIABLE FOR ANY DAMAGE TO, OR LOSS
OF, THE CUSTOMER EQUIPMENT FOR ANY REASON SUCH LIABILITY WILL BE LIMITED SOLELY
TO THE THEN-CURRENT REPLACEMENT VALUE OF THE CUSTOMER EQUIPMENT.
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1 AND 6.2, IN NO EVENT
WILL EXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR
ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT. CUSTOMER EQUIPMENT,
CUSTOMER'S BUSINESS OR OTHERWISE, AND ANY LOST REVENUE, LOST PROFITS,
REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE
OF SERVICE OR OF ANY CUSTOMER EQUIPMENT OR CUSTOMER'S BUSINESS, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE.
6.4 Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus has set its prices and entered into this Agreement in
reliance upon the limitations of liability and the disclaimers of warranties and
damages set forth herein, and the same form an essential basis of the bargain
between the parties. The parties agree that the limitations and exclusions of
liability and disclaimers specified in this Agreement will survive and apply
even if found to have failed of their essential purpose.
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6.5 IN NO EVENT WILL CUSTOMER BE LIABLE TO EXODUS, ANY REPRESENTATIVE OR
THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF
TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR ANY THIRD
PARTY EQUIPMENT OR MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, EITHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE.
7. INDEMNIFICATION.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify, defend and
hold Customer harmless from and against any and all costs, liabilities, losses
and expenses (including, but not limited to, reasonable attorneys'
fees)(collectively, "Losses") resulting from any claim, suit, action, or
proceeding (each, an "Action") brought against Customer alleging (i) the
infringement of any copyright or patent resulting from the provision of Internet
Data Center Services pursuant to this Agreement (but excluding any infringement
contributorily caused by Customer's Business or Customer Equipment), (ii)
personal injury to Customer or its Representative from Exodus's negligence or
willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify, defend
and hold Exodus, its affiliates and customers harmless from and against any and
all Losses resulting from or arising out of any Action brought by or against
Exodus, its affiliates or customers alleging: (a) with respect to the Customer's
Business; (i) infringement or misappropriation of any intellectual property
rights; (ii) defamation, libel, slander, obscenity, pornography, or violation
the rights of privacy or publicity; or (iii) spamming, or any other offensive,
harassing or illegal conduct or violation of the Rules and Regulations; (b) any
damage or destruction to the Customer Area, the Internet Data Centers or the
equipment of Exodus or any other customer by Customer or Representative(s) or
Customer's designees; or (c) any other damage arising from the Customer
Equipment or Customer's Business.
7.3 Notice. Each party will provide the other party prompt written notice
upon the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of one (1) year from
the Installation Date, unless earlier terminated according to the provisions of
this Section 8. The Agreement will automatically renew for additional terms of
one (1) year each.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may terminate this
Agreement for convenience by providing written notice to Exodus at any time
during the thirty (30) day period beginning on the Installation Date.
(ii)By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the first (1st) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other party at any time thereafter.
(b) For Cause. Either party will have the right to terminate this Agreement
if: (i) the other party breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days after receipt of
written notice of the same, except in the case of failure to pay fees, which
must be cured within five (5) days after receipt of written notice from Exodus;
(ii) the other party becomes the subject of a voluntary petition in bankruptcy
or any voluntary proceeding relating to insolvency, receivership, liquidation,
or composition for the benefit of creditors; or (iii) the other party comes the
subject of an involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition for the
benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing.
8.3 No Liability for Termination. Neither party will be liable to the other
for any termination or expiration of this Agreement in accordance with its
terms.
8.4 Effect on Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Exodus will immediately cease providing the
Internet Data Center Services; (b) any and all payment obligations of
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Customer under this Agreement will become due immediately; (c) within thirty
(30) days after such expiration or termination, each party will return all
Confidential Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of such
Confidential Information except as required to comply with any applicable legal
or accounting record keeping requirement; and (d) Customer will remove from the
Internet Data centers all Customer Equipment and any of its other property
within the Internet Data Centers within seven (7) days of such expiration or
termination and return the Customer Area to Exodus in the same condition as it
was on the Installation Date, normal wear and tear excepted. If Customer does
not remove such property within such five-day period, Exodus will have the
option to (i) move any and all such property to secure storage and charge
Customer for the cost of such removal and storage, and/or (ii) liquidate the
property in any reasonable manner.
8.5 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. MISCELLANEOUS PROVISIONS.
9.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this Agreement
due to any cause beyond its reasonable control, including act of war, acts of
God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that the delayed party:
(a) gives the other party prompt notice of such cause; and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
9.2 No Lease. This Agreement is a services agreement and is not intended to
and will not constitute a lease of any real or personal property. Customer
acknowledges and agrees that (i) it has been granted only a license to occupy
the Customer Space and use the Internet Data Centers and any equipment provided
by Exodus in accordance with this Agreement; (ii) Customer has not been granted
any real property interest in the Customer Space or Internet Data Centers; and
(iii) Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations or ordinances. For good cause, including the
exercise of any rights under Section 8.5 above, Exodus may suspend the right of
any Representative or other person to visit the Internet Data Centers.
9.3 Marketing. Customer agrees that with Customer's approval Exodus may
refer to Customer by trade name and trademark, and may briefly describe
Customer's Business, in Exodus' marketing materials and web site. Customer
hereby grants Exodus a license to use any Customer trade names and trademarks
solely in connection with the rights granted to Exodus pursuant to this Section
9.3.
9.4 Government Regulations. Customer will not export, re-export, transfer or
make available, whether directly or indirectly, any regulated item or
information to anyone outside the U.S. in connection with this Agreement without
first complying with all export control laws and regulations which may be
imposed by the U.S. Government and any country or organization of nations within
whose jurisdiction Customer operates or does business.
9.5 Non-Solicitation. During the period beginning on the Installation Date
and ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, each party agrees that it will not, and
will ensure that its affiliates do not directly or indirectly, solicit or
attempt to solicit for employment any persons employed by the other party during
such period.
9.6 Governing Law: Dispute Resolution; Severability; Waiver. This Agreement
is made under and will be governed by and construed in accordance with the laws
of the State of California (except that body of law controlling conflicts of
law) and specifically excluding from application of this Agreement that law
known as the United Nations Convention on the International Sale of Goods. Any
dispute relating to the terms, interpretation or performance of this Agreement
(other than claims for preliminary injunctive relief or other pre-judgment
remedies) will be resolved at the request of either party through binding
arbitration. Arbitration will be conducted in Santa Xxxxx County, California,
under the rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request the JAMS appoint a single arbitrator
possessing knowledge of online services agreements; however, the arbitration
will proceed even if such a person is unavailable. In the event any provision of
this Agreement is held by a tribunal of competent jurisdiction to be contrary to
the law, the remaining provisions of this Agreement will remain in full force
and effect. The waiver of any breach or default of this Agreement will not
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constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
9.7 Assignment; Notices. Customer may not assign its rights or delegate its
duties under this Agreement either in whole or in part without the prior written
consent of Exodus, except that Customer may assign this Agreement in whole as
part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets. Any attempted assignment or delegation without
such consent will be void. Exodus may assign this Agreement in whole or part in
connection with a grant of security interest to lenders participating in a
senior secured credit facility syndicated by Xxxxxxx, Xxxxx and Co. This
Agreement will bind and inure to the benefit of each party's successors and
permitted assigns. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by
confirmed facsimile, or mailed by registered or certified mail, return receipt
requested, postage prepaid, in each case to the address of the receiving party
indicated on the signature page hereof, or at such other address as may
hereafter be furnished in writing by either party hereto to the other. Such
notice will be deemed to have been given as of the date it is delivered, mailed
or sent, whichever is earlier.
9.8 Relationship of Parties. Exodus and Customer are independent contractors
and this Agreement will not establish any relationship of partnership, joint
venture, employment, franchise or agency between Exodus and Customer. Neither
Exodus nor Customer will have the power to bind the other or incur obligations
on the other's behalf without the other's prior written consent, except as
otherwise expressly provided herein.
9.9 Entire Agreement; Counterparts. This Agreement, including all documents
incorporated herein by reference, constitutes the complete and exclusive
agreement between the parties with respect to the subject matter hereof, and
supersedes and replaces any and all prior or contemporaneous discussions,
negotiations, understandings and agreements, written and oral, regarding such
subject matter. This Agreement may be executed in two or more counterparts, each
of which will be deemed an original, but all of which together shall constitute
one and the same instrument.
Customer's and Exodus' authorized representatives have read the foregoing
and all documents incorporated therein and agree and accept such terms effective
as of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
Signature: /s/ Xxxxxxx X. Xxxxxx Signature: /s/ Exodus Communications, Inc.
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Print Name: Xxxxxxx X. Xxxxxx Print Name:
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Title: CFO Title:
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