EXHIBIT 10.31
INTERNAP NETWORK SERVICES
TERMS AND CONDITIONS OF SERVICE
This Agreement is made and entered into this day of December l7th, 1997, by and
between InterNAP Network Services Corporation, a Washington Company
("InterNAP"), 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, and
XxxxXxxxxx.xxx. a corporation or business entity, having its office at 0000
000xx Xxx X.X., Xxxxxxxx, XX 00000 ("Customer"). When referred to collectively,
InterNAP and Customer shall be referred to as the "Parties'.
1. Scope of the Services.
A. Service. Customer agrees to purchase from InterNAP, and InterNAP
shall, subject to the terms and conditions of this Agreement, provide the
service ("Service") described in Attachment A to this Agreement.
B. Support Services. InterNAP shall provide Customer with a policies and
procedures document which discusses standard technical support relative to the
Service, and instructs Customer how to contact InterNAP, and the InterNAP
technical support staff, by means of telephone, email, and pager. The InterNAP
Network Operations Center ("NOC") will monitor the service being provided to
Customer for purposes of ensuring that TCP/IP connectivity relating to the
Service is maintained, and also for providing reasonable and appropriate outage
response and trouble-shooting related to the maintenance of such connectivity.
In the event of an outage or failure of connectivity relating to the Service,
the InterNAP NOC will follow InterNAP's standard outage response and
troubleshooting protocols which will include notification to Customer in a
manner consistent to a notification process mutually agreed upon between the
Parties. Customer will submit a Customer Installation Form which outlines
trouble contacts and Service configuration details to InterNAP prior to
scheduling of the Service installation. Information provided on the Customer
Installation Form will remain in effect until amended or rescinded by Customer
in writing in advance.
Further, InterNAP will provide Customer with an emergency access telephone
number. Customer agrees to use this emergency number only in instances which
could reasonably be described as emergency in nature, and which have occurred
through no fault of Customer. InterNAP reserves the right, at its sole
discretion, to xxxx Customer for all non-emergency calls directed to InterNAP
via the InterNAP emergency number. In the event that Customer requires a non-
standard form of technical support, where such non-standard form of support is
not in the nature of an emergency, Customer may make special contractual
arrangements with InterNAP to provide such non-standard service under terms and
conditions to be mutually agreed upon between the Parties.
2. Contract Term and Termination.
A. The term of the Agreement shall commence on the above date, and shall
continue for a minimum period of one (1) year, unless specified as a longer term
under the formerly quoted
terms on the attached Sales Order Form provided to Customer and incorporated
herein by reference. After completion of the first full term of this Agreement,
this Agreement shall be automatically renewed for successive one-year periods
unless either Party hereto provides written notice of termination at least
thirty (30) days prior to expiration of the then current Term.
B. This Agreement may be terminated without notice upon the occurrence of
any of the following: 1) Any material breach of this Agreement; 2) Customer's
failure to continue to function as a going concern, or to operate in the
ordinary course of business; 3) any assignment by Customer for the benefit of
creditors; 4) any filing of either voluntary or involuntary bankruptcy by
Customer or Customer's creditors; 5) a failure by either Party hereto to honor
any non-disclosure or confidentiality obligations arising under this Agreement
or failing to honor the employee recruitment restrictions set forth within this
Agreement below.
C. InterNAP shall provide Customer a ninety (90) Day Satisfaction
Guarantee whereby Customer may cancel or terminate this Agreement for any reason
within the first ninety days of service without an Early Cancellation Penalty.
In the event that Customer elects to terminate or cancel this Agreement after
the first ninety days (90) days of service and prior to the expiration date of
the then current term of the Agreement, and does so without the express written
consent of InterNAP, then Customer shall be liable to InterNAP for an early
cancellation penalty in an amount equal to twenty-five percent (25%) of the
dollar amount, in USD currency, that Customer would otherwise be paying to
InterNAP over the remainder of the term of this Agreement. In such a case,
Customer agrees to pay said penalty amount without any invoice or demand for
same from InterNAP, and do so within thirty (30) days after effecting the early
termination/cancellation of this Agreement.
D. This Agreement may be terminated by mutual consent between the Parties
as expressed in a duly executed writing between the Parties.
3. Service Fees and Invoicing.
A. Customer agrees to pay InterNAP all recurring and non-recurring fees
in connection within the Service as detailed in the Sales Order Form attached
hereto, and incorporated herein by reference.
B. Any fees or charges for the Service provided under this Agreement will
be invoiced to Customer at the beginning of each month in which the Service is
to be provided or at the end of the month if the Service is usage-based. Payment
terms for any invoices to Customer by InterNAP are Net 30 days, unless stated
otherwise in the Sales Order Form.
C. Any fees or charges invoiced to Customer, and due under the terms of
this Agreement, which are not paid by Customer within 45 days after the date of
an invoice shall be subject to late charges. Late charges assessed by InterNAP
to Customer shall accrue at a rate of 1.5% interest per month on any unpaid
balances which are delinquent. Extended delinquency and nonpayment on the part
of Customer for any amounts invoiced to Customer by InterNAP shall entitle
InterNAP to either suspend its performance obligations under this Agreement, or
terminate this
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Agreement along with Customer's access to use of the Service.
D. Upon request, InterNAP agrees to provide Customer with a schedule of
any additional fees that Customer may, from time to time, incur for services not
covered under this Agreement. Customer acknowledges and agrees that InterNAP
reserves the right to price certain services, which shall be described and
indicated in any such Schedule, in accordance with the reasonable circumstances
which might give rise to the provision of any such services.
E. InterNAP reserves the right to reclassify service levels, publish
revised formal descriptions of standard InterNAP products or services, and
modify any and all published prices. Any such modifications shall be subject to
the requirement that InterNAP provide Customer with a written notice of such
changes at least sixty (60) days prior to such changes or modifications taking
effect. In the event that InterNAP and Customer fail to agree on a
reclassification of service, or any price modification consequent thereto, then
either Party hereto may terminate this Agreement in accordance with the
termination procedures stated herein. Upgrades in service requested by Customer
may result in additional set-up fees.
4. Service Delivery.
InterNAP shall schedule the delivery of the Service in accordance with the
delivery date specified in the Sales Order Form attached hereto and incorporated
herein by reference, unless an alternative installation date is agreed upon
between the Parties and expressed in a further writing which may be incorporated
herein by reference. InterNAP will allow one Customer-requested delay in the
delivery date, provided that such a delay does not exceed thirty (30) calendar
days from the original delivery date specified in the Sales Order Form, InterNAP
receives Customer's requested delay in writing no less than five (5) working
days prior to the original delivery date, and Customer agrees to pay any
additional charges or costs to InterNAP resulting from the requested delay.
Should Customer delay delivery of the Service for more than thirty (30) calendar
days beyond the original specified delivery date, then InterNAP shall invoice
Customer for all applicable charges for the Service effective thirty (30)
calendar days from the originally specified delivery date unless InterNAP
receives Customer's written notice to cancel the affected Services on or before
the date which is thirty (30) calendar days from the original delivery date,
subject to InterNAP's standard cancellation charges under this Agreement.
5. Non-disclosure/Confidentiality/Non-interference.
A. InterNAP and Customer agree that during the course of dealing with
each other leading up to and during the existence of this Agreement. The Parties
may have access to and may become aware of information about the other Party
which is confidential or proprietary in nature. Therefore, the Parties agree to
take all reasonable steps necessary to maintain the confidentiality of any such
information, to protect any such information as confidential, whether or not it
is described as such by the communicating Party, and not to disclose any such
information to any third party without the prior written consent of the
disclosing party hereto, unless such third party is an authorized agent or
employee having the need to know such information in the normal course of their
work on behalf of either Party hereto.
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B. The Parties agree to not use any information disclosed within the
business relationship between the Parties, or under this Agreement, for any
purpose other than to effectuate and bring about the central purposes of this
Agreement.
C. The Parties hereto agree to not offer employment or any other
financial relationship to employees of the other Party to this Agreement for a
period of no less than six (6) months after the other Party's employee has
terminated his/her employment, or for a period of three (3) months after this
Agreement is otherwise terminated, whichever occurs first.
D. The Parties hereto agree that their obligations under Section 5 of
this Agreement shall continue for the duration of the Agreement, and for a
period of two (2) years beyond any termination of this Agreement. Failure to
comply with any provisions in this Section on the part of one Party shall
entitle the other Party to recovery of reasonable damages and attorneys fees for
any legal action in which an injured Party prevails.
6. InterNAP Duties and Responsibilities.
A. InterNAP shall provide, install, operate. and maintain the Service in
accordance with the descriptions of the Service provided within the Sales Order
Form and relevant Service Description, both of which are attached hereto and
incorporated herein by reference, InterNAP shall provide such Service within the
terms and conditions of this Agreement. InterNAP shall not be responsible for
any equipment or cabling that connects equipment of any kind that is not
provided by InterNAP in conjunction with delivery of the Service.
B. InterNAP warrants that the Service will be in good working order and
will, in all material respects, conform to the requirements of the Service
Description attached hereto, as well as those of the terms and conditions
contained in this Agreement. Customer's sole remedy for performance or
nonperformance of delivery of the Service in accordance with the terms and
conditions of this Agreement shall be repair or replacement of the Service. THE
FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. Nothing contained within this Section shall
limit Customer's damages that they may be entitled to by law.
7. Duties and Responsibilities of Customer.
A. Customer shall, at its own expense, provide all necessary preparations
required to comply with InterNAP's installation and maintenance specifications
for delivery of the Service. Customer shall be responsible for the costs of
relocation or removal of connectivity that results from the actions of Customer,
and shall provide InterNAP, or its agents, with reasonable access to Customer's
premises to perform any acts required by the terms and conditions of this
Agreement.
B. Customer agrees to properly and lawfully use the Service it is
procuring from InterNAP.
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Customer shall be liable for any and all damages to InterNAP property that may
be located on Customer's premises, excluding reasonable wear and tear. Upon
expiration or termination of this Agreement, Customer shall surrender to
InterNAP any equipment or other property owned by InterNAP that has been
provided to Customer.
C. Customer shall not, nor shall it permit or assist others to, use the
Service for any purpose other than that for which it is intended; fail to
maintain a suitable environment in accordance with either InterNAP's, or the
relevant equipment manufacturer's, specifications; alter, tamper with, adjust,
or repair the Service. Upon the occurrence of any of the above, InterNAP shall
be completely released from any liability or obligation (including any warranty
or indemnity obligations) to Customer relative to the Service, and Customer
shall be liable to InterNAP for costs or damages incurred by InterNAP resulting
therefrom.
D. Customer shall not utilize, nor permit others to utilize, the Service
for any unlawful purpose. Customer shall not, nor shall it permit or assist
others to, abuse or fraudulently use the Service, including but not limited to
the following circumstances: 1) obtaining or attempting to obtain service by any
means or device with intent to avoid payment; 2) unauthorized access,
alteration, destruction. or any attempt thereof, of. any information of another
InterNAP customer by any means or device; 3) using the Service so as to
interfere with the use of the InterNAP network by other customers or authorized
users, or in violation of the law, or in aid of any unlawful act; 4) using the
Service in a manner which, in the sole opinion of InterNAP, is not in accordance
with the generally accepted rules of Internet conduct and etiquette as may be
reasonably adopted and interpreted by InterNAP.
E. Upon the occurrence of any of the foregoing violations of Customer's
responsibilities, InterNAP may suspend its performance and/or terminate the
Agreement with no further obligation to Customer.
8. Systems Not Provided by InterNAP.
A. InterNAP shall not be responsible for the installation, operation, or
maintenance of hardware or software not provided by InterNAP unless specifically
agreed to in writing between the Parties. Further, InterNAP shall not be
responsible for the transmission or reception of information by such hardware or
software in conjunction with the Service.
B. Customer shall be responsible for the selection, use, and
compatibility of hardware or software not provided by InterNAP. In the event
that such hardware or software impairs Customer's use of the Service, Customer
shall nonetheless be liable for payment to InterNAP for provision of the
Service. Upon notice from InterNAP that the hardware or software not provided by
InterNAP is causing, or is likely to cause, a hazard, interference, or
obstruction of the Service, Customer shall eliminate such hazard, interference,
or Service obstruction. InterNAP reserves the right to disconnect the Service
until such hazard, interference, or Customer corrects Service obstruction. If
requested by Customer, InterNAP may, at its then current rates, trouble-shoot
difficulties caused by hardware or software not provided by InterNAP in the
event that such troubleshooting is outside the scope of Service to be provided
by InterNAP to Customer.
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C. InterNAP shall not be responsible if any changes in the Service cause
hardware or software not provided by InterNAP to become obsolete, requirement,
modification or alteration, or otherwise affect performance of such hardware or
software.
D. If Customer provides its own router in conjunction with the Service,
such as in the case of a remote frame relay or private line connection from
Customer's premises to an InterNAP facility, then Customer is fully responsible
for the installation, maintenance, and configuration of such Customer-provided
router, unless otherwise agreed to in writing between the Parties hereto.
InterNAP must approve in advance the make, model, and/or software revision of a
Customer-provided router, and InterNAP shall have the right, in cooperation with
Customer, to set she initial configuration for the router interface into the
Service should this be agreed to between the Parties.
9. Limitation of Liability.
A. Under no circumstances shall InterNAP be liable, either in contract or
in tort, for unauthorized access to Customer's network or transmission
facilities or Customer-premise equipment; or for the 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.
B. Except to the extent caused by the negligence of InterNAP, InterNAP
shall not be liable for claims or damages resulting from or caused by:
1) Customer's fault. negligence or failure to perform Customer's
responsibilities; 2) claims against Customer by any other party; .3) any act or
omission of any other party; and, 4) equipment or services furnished by a third
party.
C. For any claim arising under or related to a provision of the Service,
Customer's damages, if any, shall be limited to those actually proven as
directly attributable to InterNAP, subject to the following limitations:
InterNAP will not be liable under any circumstances for any indirect,
incidental, or consequential damages including, but not limited to, lost
profits, even if InterNAP has been advised of the possibility of such damages.
10. Indemnities.
A. If promptly notified of any action brought against Customer based on a
claim that the Service provided by InterNAP and used by Customer infringes on a
United States patent or copyright, InterNAP will defend such action at its
expense and will pay any and all fees, costs, or damages that may be finally
awarded in such action or resulting settlement. In the event that a final
injunction is obtained against Customer prohibiting use of the Service by reason
of infringement of the United States patent or copyright, InterNAP will, at its
option and expense, either procure the right for Customer to continue using the
service, or, procure alternative Service which furnishes equivalent
functionality, or direct Customer to return or rescind the Service
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provided by InterNAP, and in such event, terminating by mutual consent this
Agreement for the Service.
B. InterNAP will be indemnified and saved harmless by Customer from and
against all loss, liability, damage, and expense, including reasonable attorneys
fees, caused by negligent acts or omissions of officers. employees, agents,
vendors or contractors of Customer which result in claims or demands for damages
to property or for injury or death to persons, including payments made under any
Worker's Compensation Law or under any plan for employee's disability or death
benefits; any claims arising from information, data, or messages transmitted
over InterNAP's network by Customer including, but not limited to, claims for
libel, slander, invasion of privacy, infringement of copyright, and invasion
and/or alteration of private records or data, claims for infringement of patents
arising from the use of hardware or software not provided by InterNAP in
connection with the Service, and; any damages or loss incurred directly by
InterNAP as a result of a failure of any piece of' Customer-provided equipment
that may be installed within InterNAP's facilities in conjunction with provision
of the Service by InterNAP to Customer including, but not limited to, failures
resulting in fire, electrical, heat, and/or water resulting from any such
failure, even when such equipment is installed with the permission of, or
assistance of, InterNAP.
11. Miscellaneous Terms and Conditions.
A. Customer shall not assign or transfer this Agreement without the prior
written consent of InterNAP. InterNAP may, however, assign this Agreement to any
parent company or company under common ownership, management, and control with
InterNAP with thirty (30) days written notice to Customer.
B. InterNAP will not be responsible for performance of its obligations
under this Agreement where delayed or hindered by war, riots, embargoes,
strikes, casualties, accidents or other occurrence beyond InterNAP's control.
InterNAP shall notify Customer in the event of any of the foregoing occurrences.
Should such occurrences continue for more than sixty (60) days, InterNAP or
Customer may cancel this Agreement with no further liability.
C. Provision of the Service hereunder is subject to InterNAP's continuing
approval of Customer's credit-worthiness. Customer shall furnish financial
information as InterNAP may, from time to time, reasonably request to determine
Customer's creditworthiness.
D. Any disputes or claims arising out of or relating to this Agreement
shall be brought within one (1) year of the occurrence of any such dispute or
claim.
E. The terms and conditions of this Agreement may not be modified, except
by written amendment by the Parties hereto. No agent. employee, or
representative of InterNAP or Customer has the authority to bind the Parties to
any representation or warranty unless such is specifically included in the terms
and conditions of this Agreement, or within any written amendments thereto.
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F. Notice to the Parties hereto of any modifications of the Service,
modifications to pricing, changes of address, disputes, or intentions to
terminate this Agreement shall be sent by registered mail to the address of the
Party being notified which is shown within the first paragraph of this
Agreement. All other notices may be sent by regular mail between the Parties.
G. The Parties shall attempt to resolve all disputes arising out of, or
related to, this Agreement through good-faith negotiations.
H. This Agreement, including all Attachments. Sales Order Forms, and
other documents that are incorporated herein by reference, shall be construed
and enforced in accordance with, and the laws of the State of Washington shall
govern the validity and performance.
I. This Agreement consists only of the document upon which the authorized
representatives of the Parties have affixed their signatures, these specific
terms and conditions, and those documents specifically incorporated herein by
reference or formally executed Addendum. This Agreement, as so constituted, is
the entire Agreement between the Parties with respect to the Service, and may
not be modified in any way unless such modification is by means of written
Addendum, signed and dated by the duly authorized representatives of the Parties
hereto.
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