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EXHIBIT 10.8
SMART Technologies Bandwidth Agreement
This Bandwidth Agreement (the "Agreement") is effective as of September 15,
1997, by and between Deja News, Inc., a Texas corporation, having its principal
place of business at 0000 Xxxxxxxx Xxxx., Xxxxxxx XX, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("Customer"), and SMART Technologies, Inc., a Texas corporation, having
its principal place of business at 00000 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
("SMART").
1. Bandwidth Rights.
A. Subject to the terms of this Agreement, SMART hereby agrees to provide
Customer, for a period of 24 months (the "Term"), unless earlier terminated
pursuant to Section 7 below, commencing on the date to be mutually agreed upon
by SMART and Customer (the "Commencement Date"), the amount of SMART's bandwidth
(the "Bandwidth"), up to a maximum of a 100 megabits per second ("Mbps"), used
by Customer measured in accordance with the provisions of Section 1(B) below.
B. In consideration of the Bandwidth being provided to Customer each month
pursuant to Section 1(A) above, Customer shall pay to SMART an amount equal to
$1,100.00 (the "Base Rate") multiplied by the number of "Utilization Units" used
by Customer during that month. Each Utilization Unit is equal to a "Sustained
Utilization" of one (1) Mbps over the course of a particular month. Sustained
Utilization, which is determined by sampling the actual line utilization
statistics every five minutes, 24 hours per day, seven days per week, is the
usage level (measured in Mbps) under which 95% of the samples fall. The amount
of Sustained Utilization is rounded to the next highest integer to determine the
number of Utilization Units for the month. Notwithstanding the foregoing,
Customer shall pay SMART a minimum of $2,200.00 each month during the term of
this Agreement. In making its payments to SMART, Customer shall comply with the
provisions of paragraph A of Section 5 of the Agreement.
C. At any time prior to the expiration of the Term, Customer may elect to renew
this Agreement for an additional 12 month term with such changes as SMART and
Customer may mutually agree upon, except that Customer shall not be obligated to
pay more than fifty percent (50%) above the Base Rate per Utilization Unit or
more than $750.00 per Rack (as defined in Section 2 below). In the event that
Customer does not elect to renew the Agreement pursuant to this Section 1(C)
prior to the expiration of the Term, this Agreement shall continue on a
month-to-month basis following the expiration of the Term until terminated by
either party upon thirty (30) days prior written notice to the other party.
2. Additional Customer Rights. Customer shall also have the right to enter the
premises located at 00000 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 (the
"Premises"), and to use up to 40 racks not smaller than 49 inches in width each
(individually, a "Rack") provided by SMART for Customer's equipment at the
location within the Premises designated by SMART (the "Customer Area"), subject
to any reasonable restrictions on such entry and use as may be imposed by SMART.
Customer shall designate qualified persons who will be the only persons given
access to the Customer Area. All such rights of Customer are subject to
Customer's compliance with the access and security procedures referred to in
Section 5 below and, if applicable, the signing of the confidentiality
agreement(s) referred to in Section 8(D) below by Customer's designated persons.
In consideration of such right to enter the Premises and to use the Customer
Area, Customer shall pay to SMART each month (a) $500.00 for each Rack used by
Customer, (b) an additional $100.00 for each Rack requested by Customer in
excess of 60 inches in width, (c) $50.00 per month for a work surface of 48
inches in width that contains a lockable cabinet which is designed to allow
Customer to repair the equipment located at the Premises on site, and (d) such
additional amounts as may be mutually agreed upon. SMART will arrange for the
installation of two electrical circuits for each Rack used by Customer. The
payments pursuant to clauses (a) and (b) of the immediately preceding sentence
are referred to herein as the "Rack Payments." If so requested by Customer,
SMART will arrange for the installation of a third electrical circuit for the
Rack or Racks specified by Customer and Customer shall reimburse SMART for its
actual costs for obtaining and installing each such additional electrical
circuit(s).
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3. Ownership of the Premises and the Bandwidth Equipment. As between the
parties, SMART retains all right, title and interest in the Premises and the
equipment of SMART being utilized to provide the Bandwidth to Customer (the
"Bandwidth Equipment"). The provision of the Bandwidth pursuant to Section 1
above does not constitute a sale of the Bandwidth Equipment or any computer,
equipment or other piece of hardware or software relating thereto.
4. Limited Warranty; Disclaimer. SMART warrants that it use commercially
reasonable efforts to provide the amount of Bandwidth requested by Customer
pursuant to Section 1 above and that, in the event that any or all of such
Bandwidth is not available at any time during the term of this Agreement,
Customer shall receive a pro-rata credit for the period of time in which such
Bandwidth is not available. Except as provided in the foregoing sentence, SMART
does not warrant, guarantee or make any representations regarding the use, or
the results of the use, of the Bandwidth or user documentation in terms of
correctness, accuracy, reliability or otherwise. Moreover, SMART is not
responsible for and will have no liability for hardware, software, or other
items or services provided by any person(s) other than SMART.
5. Payment; Customer Responsibilities.
A. Customer shall pay to SMART the amounts determined pursuant to Sections 1, 2
and 6 of this Agreement in U.S. dollars, without set-off or deduction, from the
United States and such payments shall be made no later than thirty (30) days
after the date of the monthly invoice sent to Customer by SMART. Customer shall
also pay SMART a one-time non-refundable installation fee of $1,500.00 due upon
the execution of this Agreement. Customer shall be responsible for all taxes and
withholdings relating to the Bandwidth (excluding taxes on SMART's net income).
Any payment not made when due will be subject to a late charge of 1.5% per month
or the highest rate allowed by law on the unpaid invoice, whichever is lower. In
the event that SMART and Customer recognize that the amount of Bandwidth used by
Customer for any particular month has been inflated due to improper "pinging" by
a third party, SMART and Customer will discuss in good faith an appropriate
adjustment to the amount owed by Customer to SMART for such month to reflect
such "pinging"; and SMART will act in a commercially reasonable manner in
connection with such adjustment.
B. Customer shall ensure that all equipment on its premises or that it brings to
the Premises that uses, interacts with or connects to the Bandwidth Equipment
will perform according to published technical specifications for all such
equipment and complies with the specifications provided by SMART.
C. Customer acknowledges that SMART is not responsible for the manner in which
the Bandwidth is used by Customer or any other person or entity Customer permits
to access the Bandwidth or the Bandwidth Equipment (a "User"). Customer agrees
that it will not, and will use all commercially reasonable efforts to ensure
that any User will not, use or assist others in using the Bandwidth for illegal
or improper purposes, or to interfere with or disrupt other users of the
Bandwidth Equipment.
D. Customer shall comply with all access and security procedures provided to it
by SMART and shall use commercially reasonable efforts to ensure that all Users
comply with such procedures. Customer shall use its commercially reasonable
efforts to monitor Users in order to ensure that all Users comply with such
procedures. Customer shall maintain a procedure external to the Bandwidth
Equipment for reconstruction of lost or altered files, data or programs. To the
extent deemed necessary by Customer, Customer may implement additional access
and security procedures. To the extent deemed necessary and reasonable by both
Customer and SMART and subject to such additional terms and consideration as is
mutually agreed upon, SMART shall implement the aforementioned additional access
and security procedures of Customer. Customer shall repair at its own cost any
damage to the Premises caused by its employees, agents or any other person who
enters the Premises pursuant to Customer's request.
E. Customer agrees that SMART may include Customer's name; IP and electronic
mail information in directories.
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6. Maintenance and Support. During the term of this Agreement, SMART shall
provide the following maintenance and support: (a) SMART shall use commercially
reasonable efforts to maintain the Bandwidth Equipment in working condition; (b)
SMART shall provide uninterrupted power supply "UPS" and generator back-up
service; (c) SMART shall provide 24-hour, 7-day per week internal engineering
support and ICMP monitoring to assist in maintaining the connection between
Customer's equipment, the SMART NAP and the Internet (with such monitoring to be
the only form of "pinging" deemed proper hereunder); (d) SMART use commercially
reasonable efforts to handle any service, equipment, software or other problems
relating solely to SMART's services, equipment, software, personnel or property
24 hours per day, 7 days per week, at no additional charge and SMART shall make
available personnel of SMART to Customer to handle any other service, equipment,
software or other problems at a rate of $125.00 per hour; and (e) SMART shall
make commercially reasonable efforts to protect Customer from improper "pinging"
by a third party provided that such efforts do not adversely affect the services
provided by SMART to other customers of SMART. Any and all amounts payable to
SMART under this Section 6 shall be paid by Customer in compliance with the
provisions of paragraph A of Section 5 above.
7. Termination.
A. This Agreement shall remain in effect until terminated in accordance with
this Section 7 or in accordance with the applicable provisions of Section 1 of
this Agreement. Sections 3 and 8 through 15 of this Agreement, as well as any
accrued rights to payment and any remedies for breach of this Agreement, shall
survive termination.
B. SMART may terminate this Agreement if (i) Customer fails to pay any amount
which is due to SMART under this Agreement within thirty (30) days after receipt
of written notice from SMART of such delinquency or (ii) Customer fails to
perform or observe any other material term or condition of this Agreement within
fifteen (15) days after receipt of written notice from SMART of such failure.
Upon such termination, Customer shall be liable for all amounts due to SMART as
of the date of termination pursuant to Sections 1, 2 and 6 of this Agreement. In
addition, in the event of termination pursuant to the provisions of this Section
7(B), Customer shall pay to SMART (a) termination charges equal to the amounts
paid to SMART under Sections 1 and 2 hereof for the month preceding the month of
termination and (b) in the event the Agreement is terminated within the first
nine (9) months after the Commencement Date, the total cost to SMART for
obtaining, installing and removing the Racks minus the total Rack Payments made
by Customer prior to the date of termination, upon which customer will take
ownership of Racks.
C. Customer may terminate this Agreement if SMART fails to perform or observe
any material term or condition of this Agreement within fifteen (15) days after
receipt of written notice from Customer of such failure. Subject to the
provisions of paragraph A of this Section 7 and except for amounts due to SMART
as of the date of termination, Customer shall have no further financial
obligations to SMART.
8. Confidentiality.
A. "Confidential Information" means all information that is non-public,
confidential or proprietary in nature, including, but not limited to: any
hardware, software, information, media, materials or documents (whether located
at the Premises or elsewhere) pertaining to the SMART or Customer (including,
but not limited to, all firmware, languages, models, code, inventions,
algorithms, processes, schematics, know-how and ideas); techniques for finding,
analyzing and distributing data or information; and all other business,
technical and financial information that either SMART or Customer obtains from
the other which would reasonably be considered confidential in nature. The
pricing, terms and conditions of this Agreement are proprietary information and
shall be treated as Confidential Information. For purposes of this Section 8,
the party who initially disclosed the Confidential Information to the other
party shall be referred to as the "Disclosing Party" and the party receiving the
Confidential Information from the Disclosing Party shall be referred to as the
"Receiving Party". "Confidential Information" shall not include information that
(i)
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through no improper action or inaction of the Receiving Party (or any affiliate,
associate, employee or consultant thereof) is or has become generally available
and known to the public, (ii) was properly in the possession of or known by the
Receiving Party prior to its receipt from the Disclosing Party, (iii) is or has
become lawfully available to the Receiving Party from a source (other than the
Disclosing Party) which the Receiving Party does not know or reasonably believe
to be under an obligation of confidentiality or (iv) was independently developed
by the Receiving Party.
B. Neither party to this Agreement shall, either during the term of this
Agreement or thereafter, disclose to any other person or entity any Confidential
Information of the other party or use any Confidential Information of the other
party for any purpose other than the performance of such party's obligations
under this Agreement (except as authorized by the Disclosing Party in accordance
with the procedures set forth in paragraph C of this Section 8).
C. Any Receiving Party wishing to disclose any Confidential Information to any
person(s) or entity(ies) other than the Disclosing Party or another party which
is authorized to have access to such Confidential Information under this
Agreement must obtain the prior consent of the Disclosing Party. Such consent
shall be effective only if (i) it is in writing, (ii) it specifically describes
the Confidential Information to be disclosed and the person(s) or entity(ies) to
whom it is to be disclosed, (iii) such person(s) or entity(ies) agrees in
writing to be bound by the provisions of this Section 8, and (iv) it is signed
by a duly authorized officer of the Disclosing Party. The Receiving Party may
make disclosures required by court order provided that the Receiving Party uses
diligent efforts to limit disclosure and to obtain confidential treatment and/or
a protective order and has allowed the Disclosing Party to participate in such
efforts.
D. To the extent requested by SMART, Customer shall require any User to sign a
confidentiality agreement comparable to this Section 8 as a precondition to
being permitted physical access to the Premises.
9. Limited Liability.
A. NEITHER SMART NOR CUSTOMER SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER
OF THIS AGREEMENT UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR HARM TO BUSINESS, LOST
PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT SMART OR CUSTOMER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (2) ANY DAMAGE THAT CUSTOMER OR
ANY USER MAY SUFFER ARISING OUT OF THE USE OF, OR THE INABILITY TO USE, THE
BANDWIDTH UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR GROSSLY NEGLIGENT
ACT OF SMART, (3) ANY LOSS OR INACCURACY OF DATA OR FOR THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (4) DAMAGES OR DELAYS DUE TO
FIRE, WAR, EXPLOSION, LIGHTNING, POWER SURGES OR FAILURES, STRIKES OR LABOR
DISPUTES, WATER, ACTS OF GOD, THE ELEMENTS, ACTS OR OMISSIONS OF COMMUNICATIONS
CARRIERS OR SUPPLIERS, OR OTHER CAUSES BEYOND ITS REASONABLE CONTROL WHETHER OR
NOT SIMILAR TO THE FOREGOING. THE FOREGOING LIMITATION SHALL NOT APPLY TO A
BREACH BY EITHER PARTY OF SECTION 8 OF THIS AGREEMENT.
B. SMART SHALL NOT BE RESPONSIBLE FOR (1) SERVICE IMPAIRMENTS CAUSED BY ACTS
WITHIN THE CONTROL OF CUSTOMER, ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS
OR USERS, (2) INTEROPERABILTY OF SPECIFIC CUSTOMER APPLICATIONS, (3) INABILITY
OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE
INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE
INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET, (4)
INTERACTION WITH OTHER SERVICE
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PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE
INTERNET, (5) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS, OR (6) PERFORMANCE
IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
10. Indemnification. Customer shall indemnify, defend and hold harmless SMART
and its directors, officers, employees and agents (individually, a "SMART
Indemnitee") from any and all damages and costs finally awarded, amounts paid in
settlement and expenses (including reasonable attorneys' fees) arising out of,
and advance expenses to such persons in connection with, any claim, suit or
proceeding brought by a third party against a SMART Indemnitee resulting from or
in connection with any claim, suit or proceeding relating to (i) the use of or
inability to use the Bandwidth by Customer or any User or (ii) the content of
information or data provided by any User to Customer or by Customer to SMART in
connection with the Bandwidth. Notwithstanding the foregoing sentence, the
obligation of Customer to indemnify SMART does not apply with respect to any
claim, suit or proceeding that is based, in whole or in part, on modifications
to such information or data made by SMART. SMART shall promptly notify Customer
of any and all threats, claims, suits and/or proceedings which may be subject to
the provisions of this Section 10 and shall provide reasonable assistance and
the opportunity to assume sole control over the defense and/or all negotiations
for a settlement or compromise.
11. Relationship of the Parties. Notwithstanding any other provision of this
Agreement, for all purposes of this Agreement, each party shall be and act as an
independent contractor and not as a partner, joint venturer or agent of the
other and shall not bind nor attempt to bind the other to any contact.
12. Assignment. Neither this Agreement nor any rights or obligations hereunder,
may be assigned by either party without the prior written approval of the
non-assigning party. Notwithstanding the foregoing, either party may assign this
Agreement to a successor entity (including an acquiror of all or substantially
all of the Bandwidth Equipment or all or substantially all of such party's
assets, business or equity securities, whether by sale, merger or otherwise).
13. Notices. Notices under this Agreement shall be sufficient only if personally
delivered, delivered by a major commercial rapid delivery courier service with
tracking capabilities or mailed by certified or registered mail, return receipt
requested, to a party at its address as set forth in the first paragraph of this
Agreement or as subsequently amended. If not received sooner, notice by mail
shall be deemed received five (5) days after deposit in the U.S. mails.
14. Government Matters. Customer shall comply with applicable federal and state
law (and any regulations promulgated pursuant thereto) in connection with its
use of the Bandwidth.
15. Miscellaneous.
A. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all proposals, oral or
written, all negotiations, conversations, or discussions between the parties
hereto relating to the subject matter hereof and all past dealings or industry
custom. SMART's obligations under this Agreement shall be solely to Customer and
not to any third party. This Agreement shall not be deemed to provide any third
parties with any claim, right of action, remedy or other right.
B. No changes or modifications or waivers are to be made to this Agreement
unless evidenced in writing and signed by both parties to this Agreement. The
failure of either party to enforce its rights under this Agreement at any time
for any period shall not be construed as a waiver of such rights.
C. In the event that any provision of this Agreement shall be determined to be
illegal or unenforceable, that provision will be limited or eliminated to the
minimum extent necessary so that the remaining provisions of this Agreement
shall remain in full force.
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D. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas without regard to the conflicts of laws provisions of any
state and without regard to the United Nations Convention on the International
Sale of Goods. Headings herein are for convenience of reference only and shall
in no way affect interpretation of the Agreement.
E. The parties acknowledge that any remedy at law for breach of Section 8 of
this Agreement will be inadequate and, accordingly, in the event of such a
breach or threatened breach, the non-breaching party shall be entitled, in
addition to all other remedies, to seek injunctive relief restraining such
breach or threatened breach, without any bond or security being required. Except
as otherwise expressly stated in this Agreement, the rights and remedies of a
party set forth herein with respect to any failure of the other party to comply
with the terms or conditions of this Agreement (including, without limitation,
rights of full termination of this Agreement) are not exclusive, the exercise
thereof shall not constitute an election of remedies and the aggrieved party
shall in all events be entitled to seek whatever additional remedies may be
available in law or in equity.
F. IF A DISPUTE ARISES WITH RESPECT TO THIS AGREEMENT, THE PARTIES SHALL ATTEMPT
TO RESOLVE THE DISPUTE THROUGH GOOD FAITH NEGOTIATIONS. IN THE EVENT THAT SUCH
NEGOTIATIONS FAIL TO RESOLVE THE DISPUTE, EITHER PARTY MAY SUBMIT THE DISPUTE TO
A SOLE MEDIATOR SELECTED BY THE PARTIES OR, AT ANY TIME, TO MEDIATION BY THE
AMERICAN ARBITRATION ASSOCIATION ("AAA"). IF NOT THUS RESOLVED, IT MAY BE
REFERRED BY EITHER PARTY TO A SOLE ARBITRATOR SELECTED BY THE PARTIES OR TO AAA
ARBITRATION. THE ARBITRATION SHALL TAKE PLACE IN AUSTIN, TEXAS IN ACCORDANCE
WITH THE AAA'S COMMERCIAL RULES OF ARBITRATION AND JUDGMENT ON THE AWARD MAY BE
ENTERED BY ANY COURT HAVING JURISDICTION. THE PARTIES SHALL AGREE ON WHAT, IF
ANY, DISCOVERY SHALL BE MADE AVAILABLE; IF THE PARTIES FAIL TO AGREE ON THE FORM
OF DISCOVERY WITHIN 30 DAYS AFTER THE APPOINTMENT OF THE ARBITRATOR, THERE SHALL
BE NO DISCOVERY OR ISSUANCE OF ANY SUBPOENAS. THE ARBITRATOR SHALL NOT LIMIT,
EXPAND, OR MODIFY THE TERMS OF THIS AGREEMENT NOR AWARD DAMAGES IN EXCESS OF
COMPENSATORY DAMAGES PERMITTED UNDER THIS AGREEMENT, AND EACH PARTY WAIVES ANY
CLAIM TO SUCH EXCESS DAMAGES. THE ARBITRATOR SHALL NOT HAVE ANY ABILITY TO AWARD
ANY EQUITABLE REMEDIES, AND SHALL BE LIMITED TO REMEDIES AVAILABLE AT LAW. THE
ARBITRATOR SHALL NOT HAVE THE RIGHT TO AWARD ANY DAMAGES IN EXCESS OF DAMAGES
THAT COULD LAWFULLY BE AWARDED BY A COURT OF COMPETENT JURISDICTION. THE
ARBITRATOR SHALL ISSUE A WRITTEN DECISION CONTAINING FINDINGS AND CONCLUSIONS ON
ALL SIGNIFICANT ISSUES. NOTWITHSTANDING THE ABOVE, EITHER PARTY MAY SEEK
EQUITABLE OR SIMILAR INTERIM RELIEF FROM A COURT. A REQUEST BY A PARTY TO A
COURT FOR INTERIM RELIEF SHALL NOT AFFECT EITHER PARTY'S OBLIGATION HEREUNDER TO
MEDIATE AND/OR ARBITRATE. EACH PARTY SHALL BEAR ITS OWN EXPENSES AND AN EQUAL
SHARE OF ALL COSTS AND FEES OF THE MEDIATION AND/OR ARBITRATION. ANY MEDIATOR OR
ARBITRATOR SELECTED SHALL BE COMPETENT IN THE LEGAL AND TECHNICAL ASPECTS OF THE
SUBJECT MATTER OF THIS AGREEMENT. THE CONTENT AND RESULT OF THE MEDIATION AND/OR
ARBITRATION SHALL BE HELD IN CONFIDENCE BY ALL PARTICIPANTS, EACH OF WHOM WILL
BE BOUND BY AN APPROPRIATE CONFIDENTIALITY AGREEMENT.
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G. All references in this Agreement to "days" shall mean calendar days.
THE PARTIES' SIGNATURES BELOW ACKNOWLEDGE THAT EACH PARTY HAS READ AND
UNDERSTANDS EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE
BOUND BY THEM.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
set forth in the first paragraph of this Agreement.
COMPANY REPRESENTATIVE: COMPANY REPRESENTATIVE:
SMART Technologies, Inc. Deja News, Inc.
SIGN: /s/ Xxxxx Xxxxxxx SIGN:
---------------------------- ----------------------------------
BY: Xxxxx Xxxxxxx BY:
------------------------------ ------------------------------------
TITLE: Senior Vice President TITLE:
--------------------------- ---------------------------------
DATE: 9-26-97 DATE:
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