EXHIBIT 10.21
Exodus
EXODUS COMMUNICATIONS, INC.
Internet Services and Products Agreement
This Agreement defines the terms and conditions between Exodus Communications,
Inc., (hereafter referred to as Exodus) and Netcentives (hereafter referred to
as Customer) whereby Exodus provides value-added Internet services and related
products to Customer.
1. Exodus will provide the following services and products at the prices shown
(see Addenda for additional services):
Connection Type N/A Usage Level Price Billing Period
-------- ------------ --------- ------------ -----------
One Time Installation Cost Price
------------
Telco Connection provided by Price Billing Period
------------------------ ------------ -----------
One Time Installation Cost Price
------------
Other: Price Billing Period
-------------------------------------------------------- ------------ -----------
Other: Price Billing Period
-------------------------------------------------------- ------------ -----------
Equipment: see Attachment A (if applicable) Price
------------
Request for Service
---------------------------
Date
Exodus will not increase prices for services provided during the Billing
Period identified above. Exodus reserves the right to change prices beyond
the billing period upon notice to Customer 30 days in advance of any
change. All prices are exclusive of any tax, levy, customs duty, import
tax or similar governmental charge that may be assessed by any
jurisdiction. All such taxes are the responsibility of Customer.
2. The initial term of this Agreement is for one year from the date Internet
access is connected, Customer may cancel within the first 30 days without
penalty, thereafter it is non cancelable, and will automatically renew
yearly thereafter, unless 30 day advanced notice is given by either party
prior to this agreement's anniversary date. At any time, either party will
have the right to terminate this Agreement if (i) the other party breaches
any terms of this Agreement, including but not limited to the payment of
fees, and fails to cure such breach within thirty (30) days after written
notice of the breach or (ii) the other party becomes the subject of a
petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors.
After the initial term, either party may terminate this Agreement for
convenience by providing sixty (60) days prior written notice. At the time
Exodus connection service is installed or product is shipped, Exodus will
invoice the Customer: Payments for subsequent billing periods will be
issued in advance of the provision of service. Invoices are due upon
receipt.
3. Exodus makes no warranty of any kind with respect to services and products
provided under this Agreement. Exodus DISCLAIMS ALL WARRANTIES, EXPRESS
AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE DOMAIN NAMES
OBTAINED FOR CUSTOMERS, SERVICES OR ANY INFORMATION OBTAINED THROUGH THE
SERVICES. In situations involving performance or nonperformance of
services or products furnished under this Agreement, Customer's sole remedy
shall be: in the case of products, repair, or return of the defective
product to Exodus for refund, at the discretion of Exodus. In the case of
services, refund of a pro rata portion of the price paid for services which
were not provided. Credit will only be issued for periods of lost service
greater than 24 hours.
4. Exodus will not be liable for any damages Customer may suffer arising out
of acts of God, use, or inability to use, Exodus's Internet services or
related products unless such damages are caused by an intentional and
willful act of Exodus. In no event shall Exodus be liable for unauthorized
access to Customer's transmission facilities or Customer premise equipment
or for unauthorized access to or alteration, theft or destruction of
Customer's data files, programs, procedure or information through accident,
fraudulent means or devices, or any other method. Exodus will not be
liable for indirect, incidental, special or consequential damages or for
any lost property or data of Customer. Exodus's liability for damages to
Customer for any cause whatsoever, regardless of form of action, including
negligence, shall not exceed an amount equal to the price of products and
services purchased by Customer during the twelve month period preceding the
event which caused the damages or injury.
5. Exodus will indemnify and hold Customer harmless against any claims or
demand by any third party that any hardware or software provided by Exodus
to Customer hereunder, infringes any U.S. copyright or patent. Except for
such indemnity. Customer agrees to indemnify and hold Exodus harmless
against any claim or demand by any third party due to or arising out of the
use by Customer of Internet services and related products provided
hereunder.
6. Customer is solely responsible for the content of any transmissions by
Customer and any third party utilizing customer's facilities or Exodus's
facilities. Use of other organization's network or computing resources are
subject to their respective permission and usage policies. Customer agrees
to comply with all applicable laws with regard to the transmission and use
of information and content, solicitation of any activity that is prohibited
by applicable law over Internet. Customer further agrees not to use the
Internet service for illegal purposes, to interfere with or disrupt other
network users, network services or network equipment. Customer shall be
liable for and shall indemnify and defend EXODUS from and against any
claims in anyway arising from or related to (i) the alleged infringement of
patent, trademark, design, copyright or any other intellectual property
rights in relation to the Customer's use of the services and (ii) Customer
use or inclusion of any information, photographs, art work or other content
(including without limitation claims based on invasion of privacy, right of
publicity, the Communications Decency Act of 1996, obscenity or
pornography, and the violation of any states or ordinances or other laws).
7. Customer understands that Internet use, and related products and services
provided under this Agreement, may require registrations and related
administrative reports which are public in nature. In addition Customer
agrees Exodus may include its name in directories of Exodus customers.
8. Unless otherwise authorized in writing by Exodus and attached as an Addenda
to this agreement, Customer shall limit access to and use of the Internet
connection services to its employees solely for Customer's business
purposes and shall not resell or otherwise generate income by providing
access to the Internet service to third parties. Customer's right to use
the Internet services and products provided hereunder is limited to
Customer and is nontransferable.
9. Failure by the Customer to comply with the terms of this agreement will
result in immediate termination of Exodus Internet services.
10. Customer agrees not to export or re-export (including by way of electronic
transmission), directly or indirectly, any software or technical data
through the Internet services without first obtaining any required export
license or governmental approval.
11. This Agreement, together with any Addenda, constitute the entire agreement
of the parties with respect to the services and products provided hereunder
and supersede any prior agreements. These terms and conditions shall
prevail notwithstanding any different or additional terms and conditions in
any forms provided by Customer. No waiver of any rights hereunder shall be
deemed to be a waiver of the same right on any other occasion. This
Agreement shall be governed by the laws of the State of California without
regards to conflicts of law principles.
12. Force Majeure. Except for the obligation to pay money for services
previously incurred, neither party will be liable for any failure or delay
in its performance under this Agreement due to any cause beyond its
2
reasonable control, including act of war, acts of God, earthquake, flood,
embargo, riot, sabotage, labor shortage or dispute, or governmental act,
provided that the delayed party: (a) gives the other party written notice
of such cause promptly, and (b) uses its best commercial efforts to
promptly correct such failure or delay in performance. If such delaying
cause shall continue for more than thirty days (30) the party injured by
the inability of the other to perform shall have the right upon written
notice to the other party to (a) terminate this Agreement or (b) treat this
Agreement as suspended during the delay and reduce any commitment in
proportion to the duration of the delay.
These Terms and Conditions have been read, are understood, and are hereby
accepted.
Customer Exodus Communications, Inc.
/s/ Xxxxxx X. Xx 8/1/97 /s/ Xxxx Xxxxxx 8/1/97
--------------------------------------- ----------------------------------
(Authorized Signature) Date (Authorized Signature) Date
Xxxxxx X. Xx Xxxx Xxxxxx
--------------------------------------- ----------------------------------
Name Name
CFO General Counsel
--------------------------------------- ----------------------------------
Title Title
3
Exodus
EXODUS COMMUNICATIONS, INC.
Co-Location Addendum
to
Internet Services and Products Agreement
This CO-LOCATION ADDENDUM is part of the INTERNET SERVICES AND PRODUCTS
AGREEMENT ("Internet Services Agreement") effective as of , 1997,
--------------------------- ------------ --
between Exodus Communications, Inc. ("Exodus") and you ("Customer").
------ --------
The following additional terms and conditions apply under this Addendum.
1. Co-Located Equipment and Fees
-------------------------
"Equipment" Description
--------- ---------------------------------
"Facility" Description Exo-Cage-R78 - 7 x 8 Cage
--------
Co-location Connection Type Exo-ColNet-D 10
Connection Fee $1,000/5,000 Billing Period - Monthly
Facility Fee $2,500/5,000 Billing Period - Monthly
# Access Cards (3 max) 1@$100/card
Other Charges Exo-ColNetBU-T1 - $500/$500
Exo-Mon-http $100/$100
Request for Service
-------------------
Date
2. Installation; Maintenance; Removal. Exodus agrees to allow Customer to
----------------------------------
place the Equipment in the Facility subject and subordinate to the terms and
provisions of Exodus' lease with its landlord. Such placement shall be subject
to this Addendum and Exodus' installation and maintenance specifications (the
"Specifications"), which Exodus shall provide to Customer from time to time and
---------------
Customer agrees to comply therewith. Customer agrees that it will be solely
responsible, and at Exodus' request will reimburse Exodus, for all costs and
expenses associated with placing, installing, maintaining, operating and
removing the Equipment and related materials, including but not limited to, all
necessary preparations required to comply with the Specifications, costs
associated with relocation or removal of the Equipment once installed, all
electric, telephone and other utility charges directly attributable to the
Equipment and related use of the Facility, and all taxes or other government
fees arising from or related to the performance of Exodus' obligations under
this Addendum, except for taxes based on Exodus's net income. Customer further
agrees that upon termination of this Addendum, Customer will leave the Facility
in as good condition, subject to normal wear and tear, as it was in at the
beginning of the term of this Addendum, and will remove the Equipment and any
property which it is obligated or permitted to remove prior to the termination
date.
3. Security. Exodus will maintain the Facility at its premises which will
--------
be staffed by an Exodus employee at all times. The Exodus employee will require
all visitors to the premises to sign a sign-in sheet and specify the reason for
their visit. Customer acknowledges that Exodus will allow representatives of
Co-location customers unlimited and unsupervised access to their respective
facilities, and such facilities may be located with and immediately accessible
to other customers facilities, including Customer's Facility. Exodus will take
reasonable measures to protect the security of each customer's facility and
equipment, including the measures described in this Section 3. Notwithstanding
such actions, EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE OR LOSS TO CUSTOMER'S
FACILITY AND/OR EQUIPMENT RESULTING FROM ANY OTHER CUSTOMER'S ACCESS TO ITS
FACILITY OR EXODUS' PREMISES, EXCEPT FOR DAMAGE OR LOSS DIRECTLY ATTRIBUTABLE
DUE TO EXODUS'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY SUCH DAMAGE OR LOSS
WILL BE THE EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER WHO CAUSED
AND THE CUSTOMER WHO INCURRED SUCH LOSS OR DAMAGE. Exodus will provide
reasonable assistance to resolve any disputes regarding any such losses or
damages.
4. Access. Exodus hereby grants Customer's representatives listed below
------
(the "Representatives") unlimited access, twenty-four (24) hours per day, seven
---------------
(7) days per week, to the Facility. Access will be via Access Cards and is
limited to the Representatives. Whenever Customer requires access to the
Facility for persons other than its Representatives, Customer shall give Exodus
twenty-four (24) hours prior notice by calling Exodus at a phone number to be
provided by Exodus and requesting Exodus to arrange for such access. Customer
shall reimburse Exodus for all extraordinary costs incurred by Exodus in
arranging such access. EACH REPRESENTATIVE AND ANY OTHER PERSONS ACCESSING THE
FACILITY MUST SIGN A SIGN-IN SHEET AND ACCESS THE FACILITY AT THEIR OWN RISK AND
EXODUS ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS OR DAMAGE TO
PROPERTY BROUGHT BY SUCH PERSONS TO THE FACILITY. Customer's Representatives
are:
Name: Xxxxx Xxxxxx Title: Security Architect
-------------------------------- -------------------------
Name: Xxx Xxxxxx Title: VP Development
-------------------------------- -------------------------
Name: Title:
-------------------------------- -------------------------
5. Condition of Premises/Limitation of Liability. CUSTOMER HEREBY
---------------------------------------------
ACCEPTS THE FACILITY IN AN "AS IS" CONDITION at the commencement of the term of
this Addendum, and acknowledges that Exodus has no obligation to make
alternations, improvements or additions, decorations or changes within the
Facility or any part thereof. Exodus may be required to relocate the Equipment
within its premises during the term of this Addendum, and Customer authorizes
Exodus to take such action provided Exodus does not disrupt or otherwise impair
Customer's service without first notifying Customer of such planned relocation.
CUSTOMER ACKNOWLEDGES AND AGREES THAT EXODUS SHALL NOT BE LIABLE FOR ANY COSTS,
EXPENSES OR OTHER DAMAGES INCURRED BY CUSTOMER OR ANY THIRD PARTY AS A RESULT OF
THE PERFORMANCE OF EXODUS' OBLIGATIONS PURSUANT TO THIS ADDENDUM OR OTHERWISE
RELATED TO THE EQUIPMENT, EXCEPT AS A RESULT OF EXODUS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. IN NO EVENT WILL EXODUS BE LIABLE TO CUSTOMER FOR ANY
DAMAGES OR LOSSES DUE TO THE FAILURE OR MALFUNCTION OF THE EQUIPMENT LOCATED IN
THE FACILITY. Notwithstanding the foregoing, and without imposing any duty or
obligation on Exodus, Exodus will endeavor to protect the Facility and Equipment
from damage and will notify Customer promptly of any problems or anticipated
problems related thereto and identified by Exodus. TO THE EXTENT EXODUS IS
LIABLE FOR ANY DAMAGE TO CUSTOMER'S EQUIPMENT FOR ANY REASON, SUCH LIABILITY
WILL BE LIMITED SOLELY TO THE EQUIPMENT LISTED ABOVE.
6. Rights to Equipment; Insurance. Customer represents, warrants and
------------------------------
covenants that it owns or has the legal right and authority, and will continue
to own or secure the legal right and authority, during the term of this
Addendum, to use the Equipment and Facility as contemplated by this Addendum.
Customer further covenants and agrees to keep in force and effect during the
term of this Addendum for the benefit of Exodus, Exodus' landlord and Customer,
a policy of comprehensive liability insurance conforming to the requirements of
the applicable provisions of Exodus' lease of the premises containing the
Facility, as presented by Exodus to Customer from time to time.
7. Customer's Responsibility for Losses or Damages; Indemnification.
----------------------------------------------------------------
Customer will be liable to Exodus, Exodus' landlord, other co-location
customers, their respective officers, directors, suppliers, agents, employees
and consultants, for any losses, damages or costs resulting from Customer's
actions or inactions relating to or arising under this Addendum, including
damage caused by Customer's Equipment or resulting from Customer's access to the
Facility. Customer covenants and agrees to indemnify, defend and hold Exodus,
Exodus' landlord, other co-location customers, their respective officers,
directors, suppliers, agents, employees and consultants harmless from and
against any and all costs, liabilities, suits, actions, claims, damages, charges
and expenses, including reasonable attorney fees, resulting from Customer's
Equipment or use of or access to the Facility, unless arising from the willful
misconduct of Exodus.
2
8. Casualty or Eminent Domain. In the event of taking by eminent domain
--------------------------
or damage by fire or other casualty to the Facility, Customer shall acquiesce
and be bound by any action taken by or agreement entered into between Exodus and
its landlord with respect thereto.
9. Not a Lease. This Co-location Addendum is a services agreement and is
-----------
not intended to and will not constitute a lease of real property. Customer
acknowledges and agrees that it has no rights as a tenant or otherwise under any
real property and/or landlord/tenant laws, regulations or ordinances. Upon
termination of this Addendum for any reason, Exodus will have the right to
remove immediately all of Customer's Equipment located at the Facility.
10. Entire Agreement. Exodus and Customer agree that the terms and
----------------
conditions of the Internet Services Agreement and any prior addenda thereto are
hereby incorporated by reference and made a part hereof to the same extent as if
such terms and conditions were set forth in full herein. To the extent that any
terms and conditions in this Addendum conflict with the terms and conditions in
the Internet Services Agreement or prior addenda thereto, the terms and
conditions of this Addendum will supersede any conflicting prior terms and
conditions.
These Terms and Conditions have been read, are understood, and are hereby
accepted.
Customer Exodus Communications, Inc.
By: /s/ Xxxxxxx X. Xx By: /s/ Xxxx Xxxxxx
--------------------------- ---------------------------
Authorized Signature
Name: /s/ Xxxxxxx X. Xx Name: Xxxx Xxxxxx
--------------------------- ---------------------------
Title: CFO Title: General Counsel
--------------------------- ---------------------------
Date: 8/1/97 8/1/97
--------------------------- ---------------------------
(This is the effective date of this
addendum)
Netcentives
------------------------------
Customer Business Name
3
