Exodus Communications, Inc.
Internet Data Center Services Agreement
This Internet Data Center Services Agreement (this "Agreement") is made
effective as of the Submission Date (April 29, 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: 0XxxXxxx.xxx, Inc.
Address: 00000 Xxx Xxxxxx, Xxx. 000
Xxxxxx, 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
Customer has commenced use of the Internet Data Center Services, unless
Customer is unable to install the Customer Equipment and/or use the
Internet Data Center Services by the Installation Date due to the fault of
Exodus, then billing will not begin until the date Exodus has remedied such
fault and (ii) the date the "Customer Equipment" (Customer's computer
hardware and other tangible equipment, as identified in the Customer Equipment
List which is incorporated herein by this reference) is placed by Customer in
the "Customer Area" (the portion(s) of the Internet Data Centers, as
defined in Section 3.1 below, made available to Customer hereunder for the
placement of Customer Equipment) and is operational. All Setup Fees will be
billed upon receipt of a Customer signed IDC Services Order Form. In the event
that Customer orders additional Internet Data Center Services, billing
for such services shall commence on the date Exodus first provides such
additional Internet Data Center Services to Customer or as otherwise agreed
to by Customer and Exodus.
2.3 Billing and Payment Terms. Customer will be billed monthly in
advance of the provision of Internet Data Center Services, and payment of
such fees will be due within thirty (30) days of the date of each Exodus
invoice. All payments will be made in U.S. dollars. Late payments
hereunder will accrue interest at a rate of one and one-half percent
(1 1/2%) per month, or the highest rate allowed by applicable law,
whichever is lower. If in its judgment Exodus determines that Customer
is not creditworthy or is otherwise not financially secure, Exodus may,
upon written notice to Customer, 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.
3.3 Access and Security. Customer will be fully responsible for any
charges, costs, expenses (other than those included in the Internet
Data Center Services), and third party claims that may result from its
use of, or access to, the Internet Data Centers and/or the Customer Area
including but not limited to any unauthorized use of any access devices
provided by Exodus hereunder. Except with the advanced written consent of
Exodus, Customer's access to the Internet Data Centers will be limited solely
to the individuals identified and authorized by Customer to have access to the
Internet Data Centers and the Customer Area in accordance with this
Agreement, as identified in the Customer Registration Form, as
amended from time to time, which is hereby incorporated by this reference
("Representatives").
3.4 Restrictions on Resale of IDC Services. Customer shall not,
without the prior written consent of Exodus (which may be withheld in its sole
discretion), resell the Internet Data Center Services to any third
parties.
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 $5 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) Naming Exodus as an Additional Insured. Customer agrees that
prior to the installation of any Customer Equipment, Customer will cause its
insurance provider(s) to name Exodus as an additional insured and
notify Exodus in writing of the effective date thereof.
4. Confidential Information.
4.1 Confidential Information. Each party acknowledges that it
will have access to certain confidential information of the other party
concerning the other party's business, plans, customers, technology, and
products, including the terms and conditions of this Agreement ("Confidential
Information"). Confidential Information will include, but not be
limited to, each party's proprietary software and customer information.
Each party agrees that it will not use in any way, for its own account or the
account of any third party, except as expressly permitted by this Agreement,
nor disclose to any third party (except as required by law or to that
party's attorneys, accountants and other advisors as reasonably necessary),
any of the other party's Confidential Information and will take reasonable
precautions to protect the confidentiality of such information.
4.2 Exceptions. Information will not be deemed Confidential
Information hereunder if such information: (i) is known to the receiving party
prior to receipt from the disclosing party directly or indirectly from a
source other than one having an obligation of confidentiality to the disclosing
party;
(ii) becomes known (independently of disclosure by the disclosing
party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the
disclosing party; (iii)becomes publicly known or otherwise ceases
to be secret or confidential, except through a breach of this Agreement
by the receiving party; or (iv) is independently developed by the receiving
party.
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 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.
5.2(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 calendar (1)
month. Exodus' scheduled maintenance of the Internet Data Centers and
Internet Data Center Services, as described in the Rules and Regulations, shall
not be deemed to be a failure of Exodus to provide Internet Data Center
Services. For purposes of the foregoing, "unable to transmit and receive"
shall mean sustained packet loss in excess of 50% based on Exodus'
measurements.
(ii) Packet Loss and Latency. Exodus does not proactively
monitor the packet loss or transmission latency of specific customers.
Exodus does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that
Exodus discovers (either from its own efforts or after being notified by
Customer) that Customer is experiencing packet loss in excess of one
percent (1%) ("Excess Packet Loss") or transmission latency in excess
of 120 milliseconds round trip time (based on Exodus' measurements)
between any two Internet Data Centers within
Exodus' U.S. network (collectively, "Excess Latency", and with
Excess Packet Loss "Excess Packet Loss/Latency"), and Customer
notifies Exodus (or confirms that Exodus has notified Customer),
Exodus will take all actions necessary to determine the source of the Excess
Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency;
Notification of Customer. Within two (2) hours of discovering the
existence of Excess Packet Loss/Latency, Exodus will determine whether the
source of the Excess Packet Loss/Latency is limited to the Customer Equipment
and the Exodus equipment connecting the Customer Equipment to Exodus' LAN
("Customer Specific Packet Loss/Latency"). If the Excess Packet Loss/Latency
is not a Customer Specific Packet Loss/Latency, Exodus will determine the
source of the Excess Packet Loss/Latency within two (2) hours after
determining that it is not a Customer Specific Packet Loss/Latency.
In any event, Exodus will notify Customer of the source of the Excess
Packet Loss/Latency within sixty (60) minutes after identifying the source.
(B) Remedy of Excess Packet Loss/Latency. If the
Excess Packet Loss/Latency remedy is within the sole control of Exodus, Exodus
will remedy the Excess Packet Loss/Latency within two (2) hours of determining
the source of the Excess Packet Loss/Latency. If the Excess Packet
Loss/Latency is caused from outside of the Exodus LAN or WAN, Exodus will
notify Customer and will use commercially reasonable efforts to notify the
party(ies) responsible for the source and cooperate with it(them) to resolve
the problem as soon as possible.
(C) Failure to Determine Source and/or Resolve Problem.
In the event that Exodus is unable to determine the source of and remedy
the Excess Packet Loss/Latency within the time periods described above (where
Exodus was solely in control of the source), Exodus will credit Customer's
account the pro-rata connectivity charges for one (1) day of service for
every two (2) hours after the time periods described above that it takes
Exodus to resolve the problem, up to an aggregate maximum credit of
connectivity charges for seven (7) days of service in any one (1) month.
(iii) Customer Must Request Credit: To receive any of the credits
described in this section 5.2(a), Customer must notify Exodus within three (3)
business days from the time Customer becomes eligible to receive a
credit. Failure to comply with this requirement will forfeit Customer's
right to receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit: In the event
that Customer is entitled to multiple credits hereunder arising from the
same event, such credits shall not be cumulative and Customer shall be
entitled to receive only the maximum single credit available for such event.
In no event will Exodus be required to credit Customer in any one (1)
calendar month connectivity charges in excess of seven (7) days of service.
A credit shall be applied only to the month in which there was the incident that
resulted in the credit. Customer shall not be eligible to receive any
credits for periods in which Customer received any Internet Data Center
Services free of charge.
(v) Termination Option for Chronic Problems: If, in any single
calendar month, Customer would be able to receive credits totaling fifteen
(15) or more days (but for the limitation in paragraph (iv) above) resulting
from three (3) or more events during such calendar month or, if any
single event entitling customer to credits under paragraph 5.2(a)(i) exists
for a period of eight (8) consecutive hours, then, Customer may 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.
(b) 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.
(c) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Exodus does not and cannot control the flow of data to or
from Exodus' Internet Data Centers and other portions of the internet.
Such flow depends in large part on the performance of internet services
provided or controlled by third parties. At times, actions or inactions caused
by these third parties can produce situations in which Exodus' customers'
connections to the Internet (or portions thereof) may be impaired or disrupted.
Although Exodus will use commercially reasonable efforts to take
actions it deems appropriate to remedy and avoid such events, exodus cannot
guarantee that they will not occur. Accordingly, Exodus disclaims any and all
liability resulting from or related to such events.
6. Limitations of Liability.
6.1 Personal Injury. Each Representative and any other persons visiting
the Internet Data Centers does so at its own risk and Exodus assumes no
liability whatsoever for any harm to such persons resulting from any cause
other than exodus' negligence or willful misconduct resulting in personal
injury to such persons during such a visit.
6.2 Damage to Customer Equipment or Business. Exodus assumes no liability
for any damage to, or loss relating to, Customer's Business resulting from
any cause whatsoever. Certain Customer Equipment, including but not limited
to Customer Equipment located on CyberRacks, may be directly accessible by
other customers. Exodus assumes no liability for any damage to, or
loss of, any Customer Equipment resulting from any cause other than exodus'
gross 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 value of the Customer
Equipment.
6.3 Exclusions. Except as specified in Sections 6.1 and 6.2, in no event
will Exodus be liable to Customer, any Representative, or any third party
for any claims arising out of or related to this Agreement, Customer
Equipment, Customer's Business or otherwise, and any lost revenue, lost
profits, replacement goods, loss of technology, rights or services,
incidental, punitive, indirect or consequential damages, loss of data, or
interruption or loss of use of service or of any Customer Equipment or
Customer's Business, even if advised of the possibility of such damages,
whether under theory of contract, tort (including negligence), strict
liability or otherwise.
6.4 Maximum Liability. Notwithstanding anything to the contrary in this
Agreement, Exodus's maximum aggregate liability to Customer related to or in
connection with this Agreement will be limited to the total amount paid by
Customer to Exodus hereunder for the prior Twelve (12) month period.
6.5 Customer's Insurance. Customer agrees that it will not pursue any
claims against Exodus for any liability Exodus may have under or relating to
this Agreement until Customer first makes claims against Customer's
insurance provider(s) and such insurance provider(s) finally resolve(s) such
claims.
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus has set its prices and entered into this Agreement
in reliance upon the limitations of liability and the disclaimers of
warranties and damages set forth herein, and that the same form an essential
basis of the bargain between the parties. The parties agree that the
limitations and exclusions of liability and disclaimers specified in this
Agreement will survive and apply even if found to have failed of their
essential purpose.
7. Indemnification.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify, defend
and hold Customer harmless from and against any and all costs, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys'
fees) (collectively, "Losses") resulting from any claim, suit, action, or
proceeding (each, an "Action") brought against Customer alleging (i) the
infringement of any third party registered U.S. copyright or issued U.S.
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) and (ii) personal
injury to Customer's Representatives from Exodus's gross 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 of the rights of privacy or publicity;
or (iii) spamming, or any other offensive, harassing or illegal conduct or
violation of the Rules and Regulations; (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 of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof.
8. Term and Termination.
8.1 Term. This Agreement will be effective for a period of (25) months
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 (25th) twenty fifth month
following 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 becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if
such petition or proceeding is not dismissed within sixty (60) days of
filing.
8.3 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in accordance with
its terms.
8.4 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) Exodus will immediately cease providing
the Internet Data Center Services; (b) any and all payment obligations of
Customer under this Agreement will become due immediately; (c) within 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 five (5) 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 Customer Equipment as Security. In the event that Customer fails to
pay Exodus all amounts owed Exodus under this Agreement when due, Customer
Agrees that upon written notice, Exodus may take possession of any Customer
Equipment and store it, at Customer's expense, until taken in full or
partial satisfaction of any lien or judgment, all without being liable to
prosecution or for damages.
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. Miscellaneous Provisions.
9.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this
Agreement due to any cause beyond its reasonable control, including act of
war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage
or dispute, governmental act or failure of the Internet, provided that the
delayed party: (a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to correct promptly such failure
or delay in performance.
9.2 No Lease. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property.
Customer acknowledges and agrees that (i) it has been granted only a license
to occupy the Customer Space and use the Internet Data Centers and any
equipment provided by Exodus in accordance with this Agreement, (ii)
Customer has not been granted any real property interest in the Customer
Space or Internet Data Centers, and (iii) Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations,
or ordinances. For good cause, including the exercise of any rights under
Section 8.5 above, Exodus may suspend the right of any Representative or
other person to visit the Internet Data Centers.
9.3 Marketing. Customer agrees that Exodus may refer to Customer by trade
name and trademark, and may briefly describe Customer's Business, in Exodus'
marketing materials and web site. Customer hereby grants Exodus a license
to use any Customer trade names and trademarks solely in connection with the
rights granted to Exodus pursuant to this Section 9.3.
9.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any regulated
item or information to anyone outside the U.S. in connection with this
Agreement without first complying with all export control laws and
regulations which may be imposed by the U.S. Government and any country or
organization of nations within whose jurisdiction Customer operates or does
business.
9.5 Non-Solicitation. During the period beginning on the Installation
Date and ending on the first anniversary of the termination or expiration of
this Agreement in accordance with its terms, Customer agrees that it will
not, and will ensure that its affiliates do not, directly or indirectly,
solicit or attempt to solicit for employment any persons employed by
Exodus during such period.
9.6 Governing Law; Dispute Resolution, Severability; Waiver. This
Agreement is made under and will be governed by and construed in accordance
with the laws of the State of California (except that body of law
controlling conflicts of law) and specifically excluding from application to
this Agreement that law known as the United Nations Convention on the
International Sale of Goods. Any dispute relating to the terms,
interpretation or performance of this Agreement (other than claims for
preliminary injunctive relief or other pre-judgment remedies) will be
resolved at the request of either party through binding arbitration.
Arbitration will be conducted in Santa Xxxxx County, California, under the
rules and procedures of the Judicial Arbitration and Mediation Society
("JAMS"). The parties will request that JAMS appoint a single arbitrator
possessing knowledge of online services agreements; however the arbitration
will proceed even if such a person is unavailable. In the event any
provision of this Agreement is held by a tribunal of competent jurisdiction
to be contrary to the law, the remaining provisions of this Agreement will
remain in full force and effect. The waiver of any breach or default of
this Agreement will not constitute a waiver of any subsequent breach or
default, and will not act to amend or negate the rights of the waiving
party.
9.7 Assignment; Notices. 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. 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
0XXXXXXX.XXX, INC. EXODUS COMMUNICATIONS, INC
Signature:/s/Xxxxxxx X. Xxxxxxxxxxx Signature:/s/Xxx Xxxxxx
Print Name:Xxxxxxx X. Xxxxxxxxxxx Print Name: Xxx Xxxxxx
Title: President Title: Contracts Mgr
