[LOGO] SPEEDERA
NETWORK SERVICES AGREEMENT
The Agreement between Speedera Networks, Inc. ("Speedera") and customer
("Customer") consists of this Network Services Agreement (the "Network
Agreement"), the applicable Service Level Agreement(s) (the "Service Level
Agreement(s)"), and the attached Services Schedule, as it may be amended from
time to time, and any subsequent Service Schedule (collectively the "Services
Schedule", and together with the Network Agreement and applicable Service Level
Agreements(s), the "Agreement"). The Agreement will become effective when signed
by both parties.
1. SPEEDERA RESPONSIBILITIES AND SERVICES. During the Term (as defined in
Section 8), Speedera agrees to provide Customer with those services agreed to by
Customer and Speedera as further set forth in the Services Schedule (the
"Services"). To the extent necessary for the provision of such Services,
Speedera will: (a) provide, maintain and operate on a twenty-four hour per day,
seven days per week, 365 days per year basis, a network to provide the Services
(the "Speedera Network"), all network software and peripherals, and all Internet
connectivity; (b) staff its Networks Operating Center ("NOC") twenty-four hours
per day, seven days per week, 365 days per year; (c) maintain network security
as reasonably necessary to monitor and protect against unauthorized third-party
access to Customer Content (as defined in Section 4) located on or within the
Speedera Network (Customer acknowledges that the portion of the Speedera Network
through which Customer Content will pass and the web servers in which Customer
Content will be stored will not be segregated in a separate physical location
from web servers on which content from other Speedera customers will be
transmitted or stored); (d) maintain sufficient capacity on the Speedera Network
during the Term as necessary to meet Customer's Committed Amount set forth in
the Services Schedule; (e) maintain the service levels set forth on the
applicable Service Level Agreement(s); and (f) provide Customer with such
installation, support, training or other additional services as may be specified
in Services Schedule or as may be requested by Customer from time to time during
the Term and set forth in a separate addendum agreed to and executed by both
parties. The Service Level Agreement(s) applicable to the Services selected by
the Customer are available at the following URL:XXX.XXXXXXXX.XXX/XXX/00000000/.
Customer acknowledges that it has obtained, has read and understands the
applicable Service Level Agreement(s).
2. CUSTOMER RESPONSIBILITIES.
During the Term, Customer agrees to (a) perform all of its obligations as set
forth on the Services Schedule and Service Level Agreement(s); (b) pay all fees
and/or royalties due Speedera in accordance with the fee structure set forth in
the Services Schedule and as further described in Section 6 of this Network
Agreement; and (c) in the event that any Customer Content infringes the
intellectual property or other rights of a third party or violates any
applicable laws or regulations (including, without limitations, laws and
regulations relating to indecency or obscenity), (i) remove such Customer
Content from Customer's origin server, and (ii) take such action as necessary to
prevent such Customer Content from being routed to or passed through the
Speedera Network.
3. REPRESENTATIONS AND WARRANTIES.
Customer warrants and represents to Speedera that Customer: (i) owns all right,
title, and interest in the Customer Content, or possesses or shall posses all
legally valid rights in the Customer Content necessary for the uses of the
Customer Content contemplated by the Agreement; and (ii) will not transmit or
route to the Speedera Network or otherwise direct via the Services any Customer
Content that infringes any copyright, trade secret, or other intellectual
property right, contains any libelous, defamatory, or obscene material, or
otherwise violates any laws or regulations relating to content or content
distribution.
4. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
(a) Ownership of Customer Content. As between Customer and Speedera, Customer
shall retain all right, title and interest in and to any files, software,
scripts, multimedia images, graphics, audio, video, text, data or other objects,
including any third party content or materials, originating or transmitted from
any web site owned or operated by Customer, and routed to, passed through and/or
stored on or within the Speedera Network and/or otherwise transmitted or routed
using the Services ("Customer Content"). Customer is and shall be solely
responsible for the creation, renewal, updating, deletion, editorial content,
control and all other aspects of any Customer Content.
(b) License to Customer Content. During the Term, Customer grants to Speedera a
limited, non-exclusive license to use the Customer Content solely for all
reasonable and necessary purposes contemplated by the Agreement and for Speedera
to perform the Services as contemplated hereunder. The Agreement does not
transfer or convey to Speedera or any third party any right, title or interest
in or to the Customer Content or any associated intellectual property rights,
but only a limited right of use revocable in accordance with the terms of the
Agreement.
(c) Ownership of Speedera Provided Software and Hardware. As between Customer
and Speedera, Speedera shall own all right, title and interest in and to any
software or hardware provided to Customer by Speedera in accordance with the
Agreement.
(d) License to Speedera Provided Software and Hardware. The Agreement does not
transfer or convey to Customer or any third party any right, title or interest
in any software or hardware provided to Customer by Speedera in accordance with
the Agreement, or any associated intellectual property rights, but only a
limited right of use revocable in accordance with the Agreement. Upon the
termination and or expiration of the Agreement, Customer will promptly return to
Speedera any hardware provided to Customer by Speedera in accordance with the
Agreement and promptly destroy any software provided to Customer by Speedera in
accordance with the Agreement.
5. PUBLICITY AND TRADEMARKS. Customer hereby permits Speedera to identify
Customer as a customer of Speedera and to display Customer's logo in connection
with identifying Customer as a customer of Speedera. Within 30 days of the
Effective Date, Customer agrees to participate in a joint press release with
Speedera announcing Customer's use of Speedera's services. With prior written
consent by the other party, which consent shall not be unreasonably withheld or
delayed, either party shall be permitted to use the other party's name in
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connection with proposals to prospective customers, to hyperlink from its web
site to the other party's home page, and to otherwise refer to the other party
in print or electronic forms for marketing or references purposes. Each party
may display or refer to the other party's proprietary indicia, trademark,
service xxxx, trade names, logos, symbols and/or brand names (collectively
"Marks") upon the advance written approval of that party, which approval shall
not be unreasonably withheld. Neither party may remove, destroy or alter the
other party's Marks. Each party agrees that it shall not challenge or assist
others to challenge the rights of the other party or its suppliers or licensors
in the Xxxx or the registration of the Marks, or attempt to register any
trademarks, trade names or other proprietary indicia confusingly similar to the
Marks. All use of a party's Marks shall be subject to such party's logo and
trademark usage guide, as provided to the other party and as the same may be
updated from time to time. Neither party grants any rights in the Marks or in
any other trademark, trade name, service xxxx, business name or goodwill or the
other except as expressly permitted hereunder or by separate written agreement
of the parties.
6. FEES, PRICING AND PAYMENT TERMS, TAXES. Speedera's current fees for the
Services (including license fees, installation charges, service usage fees and
other fees) and invoicing and payment terms are set forth on the Services
Schedule. Customer agrees to pay a late charge of two percent (2%) per month or
the maximum lawful rate; whichever is less, for all amounts not paid when due.
Speedera may also immediately suspend services if any amount is more than 10
days past due and continue to suspend the service until all due and unpaid
amounts are paid in full. All fees, prices, and royalties are in United State
dollars, unless otherwise specified on the Services Schedule, and do not include
any taxes, duties, fees and/or other governmental charges of any kind (including
sales, import, and use taxes, but excluding taxes based on the gross revenues or
net income of Speedera) which are imposed by or under the authority of any
government or any political subdivision thereof. Any and all such taxes, duties,
fees and/or other governmental charges shall be borne by Customer and shall not
be considered a part of, a deduction from or an offset against such fees.
Customer agrees to pay reasonable attorney's fees and court cost incurred by
Speedera to collect any unpaid amounts owed by Customer.
7. CONFIDENTIAL INFORMATION. All written information labeled as proprietary or
confidential that is disclosed by either party to the other party shall remain
the sole property of the disclosing party. Each party agrees that it shall not
disclose, use, modify, copy, reproduce or otherwise divulge such confidential
information other that to fulfill its obligations under the Agreement. The
prohibitions contained in this Section 7 shall not apply to information (a)
already lawfully known to or independently developed by the receiving party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party. Neither party shall disclose to third
parties, other than its agents and representatives on a need-to-know basis, the
terms of the Agreement or any addenda hereto without the prior written consent
of the other party, except either party may disclose (i) such terms to the
extent required by law; and (ii) the existence of the Agreement.
8. TERM AND TERMINATION. The Agreement shall remain in full force and effect for
the initial term specified in the Services Schedule (the "Initial Term"). Upon
the expiration of the Initial Term, the Agreement shall automatically renew for
one or more additional terms of one (1) year (each, a "Renewal Term") unless and
until either party notifies the other party in writing of its intent to
terminate at least sixty (60) days prior to the expiration of the then-current
Initial Term or Renewal Term. The Initial Term, together with any and all
Renewal Terms, is collectively referred to as the "Term". Either party may
terminate the Agreement in the event that the other party materially defaults in
performing any obligation under the Agreement and such default continues uncured
for a period of thirty (30) days following written notice of default, except
that Speedera may immediately terminate the Agreement where a delay in
termination would have a material adverse effect on Speedera; provided, however,
that in the event that the Agreement is so terminated by Customer due to
Speedera's breach of its obligations and failure to cure such breach with
respect to the Service Level Agreement(s), Customer's sole remedy shall be its
election to terminate the Agreement without further liability to either party
(except for Customer's obligation to pay all accrued and unpaid fees outstanding
at the date of termination). The Agreement shall terminate, effective upon
delivery of written notice by either party to the other party upon (i) the
institution of insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of debts of the other party; (ii) the making of
an assignment for the benefit of creditors by the other party; or (iii) the
dissolution of the other party. Customer may cancel the Service at any time
during the Initial Term or during any Renewal Term for convenience upon written
notice to Speedera, in which case Customer agrees to pay to Speedera: (a) all
unpaid fees accrued as of the cancellation date; plus (b) an early cancellation
fee equal to the Total Monthly Recurring fee (as set forth in the Services
Schedule) that would have become due during the canceled portion of the
then-current Initial Term or Renewal Term, provided, however that during the
Evaluation Period, if any, Customer may terminate the Agreement without paying a
cancellation fee by providing written notice of such termination to Speedera
prior to the end of the Evaluation Period. The provisions of Sections 3, 4(a),
4(c), 4(d), and 6 through 12 of the Network Agreement shall survive termination
of the Agreement. All other rights and obligations of the parties shall cease
upon termination of the Agreement. The term of any and all licenses granted
hereunder shall expire immediately upon expiration or termination of the
Agreement.
9. DISPUTE RESOLUTION. In the case of any disputes under the Agreement, the
parties shall first attempt in good faith to resolve their dispute informally,
or by means of commercial mediation, without the necessity of formal proceeding.
Any controversy or dispute arising out of or relating to the Agreement, or the
breach thereof, which cannot otherwise be resolved as provided above shall be
resolved by arbitration conducted in accordance with the commercial arbitration
rules of the American Arbitration Association ("AAA") and judgment upon the
award rendered by the arbitral tribunal may be entered in any court having
jurisdiction thereof.
10. INDEMNIFICATION AND DISCLAIMER OF WARRANTIES. Customer acknowledges that by
entering into and performing its obligations under the Agreement, Speedera does
not assume and should not be exposed to the business and operational risks
associated with Customer's business, or any aspects of the operation or content
of Customer's web site(s). Accordingly, Customer shall defend, indemnify, and
hold harmless Speedera from and against any suit, proceeding, assertions,
damage, cost, liability, and expenses (including court costs and reasonable
attorneys' fees) incurred as a result of claims of customers or other third
parties claim against Speedera and its affiliates, licensors, suppliers,
officers, directors, employees and agents arising from or connected with any
Customer Content or Customer's web site(s) (including without
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Speedera from and against any suit, proceeding, assertions, damage, cost,
liability, and expenses (including court costs and reasonable attorneys' fees)
incurred as a result of claims of customers or other third parties claim against
Speedera and its affiliates, licensors, suppliers, officers, directors,
employees and agents arising from or connected with any Customer Content or
Customer's web site(s) (including without limitation any activities or aspects
thereof or commerce conducted thereon), Customer's misuse of the Services, or
Customer's breach of any of its representations and/or warranties set forth in
Section 3 of the Network Agreement. EXCEPT AS SPECIFICALLY PROVIDED IN THE
AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY AND DAMAGES. EXCEPT FOR CUSTOMER'S LIABILITY ARISING
OUT OF ITS INDEMNIFICATION OBLIGATIONS OF SECTION 10 AND EACH PARTY'S LIABILITY
FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OF SECTION 7, LIABILITY FOR
ALL CLAIMS ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE,
SHALL NOT EXCEED THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO SPEEDERA UNDER THE
AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS,
CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THE AGREEMENT
OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF
LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE PARTY HAS BEEN ADVISED OR IS
AWARE OF THE POSSIBILITIES OF SUCH DAMAGES.
12. MISCELLANEOUS. Customer may not, without the prior written consent of
Speedera, assign the Agreement, in whole or in part, either voluntarily or by
operation of law, and any attempt to do so shall be a material default of the
Agreement and shall be void. The Agreement is solely for the benefit of the
parties and their successors and permitted assigns, and does not confer any
rights or remedies on any other person or entity. The Agreement shall be
interpreted according to the laws of the State of California without regard to
or application of conflict-of-law rules or principles. The Network Agreement,
the Services Schedule, and the Service Level Agreement(s), shall constitute the
entire agreement between Speedera and Customer with respect to the subject
matter hereof and all prior agreements, representations, and statements with
respect to such subject matter are superceded hereby. The Network Agreement
shall control in the event of any inconsistency with the terms of the Services
Schedule and/or the Service Level Agreement(s). The Agreement may be changed
only by written agreement signed by both Speedera and Customer. No failure of
either party to exercise or enforce any rights under the Agreement shall act as
a waiver of subsequent breaches. In the event any provision of the Agreement is
for any reason held invalid, illegal or unenforceable, the parties will begin
negotiations for a replacement provision and the remaining provisions of the
Agreement will be unimpaired. If either party is prevented from performing any
of its obligations under the Agreement due to any cause beyond the party's
reasonable control, including, without limitations, an act of God, fire, flood,
explosion, war, strike, embargo, government regulation, civil or military
authority, acts or omissions of carriers, transmitters, providers, vandals, or
hackers (a "force majeure event") the time for that party's performance will be
extended for the period of the delay or inability to perform due to such
occurrence; provided, however, that Customer will not be excused from the
payment of any sums of money owed by customer to Speedera; and provided further,
however, that if a party suffering a force majeure event is unable to cure that
event within thirty (30) days, the other party may terminate the Agreement. The
Agreement shall be construed and interpreted fairly, in accordance with the
plain meaning of its terms, and there shall be no presumption or inference
against the party drafting the Agreement in construing or interpreting the
provisions hereof. Except as provided herein, the rights and remedies of the
parties set forth in the Agreement are not exclusive and are in addition to any
other rights and remedies available to it at law in equity. The Agreement shall
be binding upon and shall inure to the benefit of the respective parties hereto,
their respective successors in interest, legal representatives, heirs and
assigns. Each party shall comply with all applicable laws, regulations, and
ordinances relating to their performance hereunder.
CUSTOMER AND SPEEDERA AGREE THAT THE TERMS AND CONDITIONS OF THE AGREEMENT
SUPERSEDE ALL PROPOSALS, WRITTEN OR ORAL, AS WELL AS OTHER COMMUNICATIONS
BETWEEN CUSTOMER AND SPEEDERA RELATING TO THE AGREEMENT. CUSTOMER'S SIGNATURE
BELOW AKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS EACH OF THE TERMS AND
CONDITIONS OF THE AGREEMENT AND AGREES TO BE BOUND BY THEM.
ACCEPTED BY CUSTOMER: ACCEPTED BY SPEEDERA NETWORKS, INC.:
________________________________ ____________________________________________
SIGNATURE SIGNATURE
___________________________ ____ ____________________________________ _______
NAME DATE NAME DATE
________________________________ ____________________________________________
TITLE TITLE
Version 6.3 Confidential Speedera Networks
SPEEDERA NETWORKS SERVICES SCHEDULE
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CUSTOMER INFORMATION:
Customer Name: Roo Media Corporation
PRIMARY CONTACT: Name: Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xx. Xxxxxxxxx 0000 Xxxxxxxxx
Email: xxxxxx.xxxxx@xxxxxxxx.xxx
Phone: (00) 000 000 000
Service Start Date: June 1, 2004 [LOGO] SPEEDERA
Service End Date: May 31, 2005 Speedera Networks
Quote Valid Until: May 31, 2004 0000 Xxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Tax Payer ID #: 00-0000000
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SERVICE INFORMATION: ONE TIME MONTHLY
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ON DEMAND STREAMING - DUAL SITE PLAN
COMMITMENT INCLUDES: 6TB of Data Transfer billed
at $1.40/GB and 480 GB of Storage at $20.80/GB
* Excess Data Transfer above Commitment shall be
billed at: $1.40/GB Transferred
* Excess Storage above Commitment shall be billed
at: $20.80/GB Transferred
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AVERAGE TOTAL (actual total will vary based on
total monthly data transferred above
Base Commitment) $0 $1,530
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MONTH 1 2 3 4 5 6 7 8 9 10 11 12 TOTAL
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DATA TRANSFER COMMIT 250GB 250GB 250GB 250GB 250GB 250GB 250GB 250GB 250GB 250GB 250GB 250GB 3TB
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ADDITIONAL DATA
TRANSFER XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 3TB
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TOTAL DATA TRANSFER
COMMIT 6TB
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STORAGE COMMIT 20GB 20GB 20GB 20GB 20GB 20GB 20GB 20GB 20GB 20GB 20GB 20GB 240GB
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ADDITIONAL STORAGE XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 240GB
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TOTAL STORAGE COMMIT 480GB
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ON DEMAND ADVANTAGES:
- No bursting charge
- No 95th percentile measurement
- Pay for what you use, when you use it (commitment can be increased or
retired at any time during term)
- Monitor, manage and control data transfer available and retired in
real-time using Speedeye
- Allocate data transferred to marketing campaigns, seasonal demand and
other unpredictable events
- End of term true-up provides flexibility throughout term of agreement
TERMS & CONDITIONS:
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ON-DEMAND STREAMING: Includes edge delivery of hosted content from the region
specified in Windows Media or Real Media formats, client file upload tools, full
logging functionality, and 10 domains/subdomains. Additional Domains/Sub domains
can be purchased in groups of 10 for $1,000 per month. Speedera reserves the
right to cap usage at five times the Committed Amounts.
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DT IN GB: Total data sent and received over the Speedera Network during month in
GigaBytes rounded up to the next 50 GigaBytes. Bandwidth used to receive,
transfer, or relay customer's content and logs from Speedera Points Of Presence
(POPs). This includes relay traffic for Live Streaming, file synchronization for
On- Demand Streaming and Download services, log retrieval, TCP/IP overhead, and
log retrieval. Speedera reserves the right to cap usage at five times the
Committed Amounts.
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STORED IN GBS: Maximum data stored at each location in the associated group
during the month as measured on a daily basis rounded up to the next GB.
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MODIFICATIONS: Changes or alterations to this Services Schedule will not be
accepted unless by written consent of Speedera.
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Speedera Networks Inc. Confidential
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SPEEDERA NETWORKS SERVICES SCHEDULE
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INTEGRATION SERVICES: Includes account setup, customer configuration, SpeedEyeTM
account setup and speed-tagging assistance in the case of Content Delivery,
assistance in URL generation for Streaming and Download Services, initial upload
of data in case of Streaming and Download Services, site configuration in the
case of Traffic Balancer, web servers setup in the case of Failover, and
software if needed.
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CONFIDENTIAL INFORMATION: The information in the Service Schedule is
confidential and proprietary to Speedera Networks, Inc. and is to be used sole
for the purpose of evaluating or purchasing Speedera Network service offerings.
Use, disclosure, reproduction, or distribution of this Service Schedule to any
third party without the written permission of Speedera Networks is prohibited.
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SUSPENSION OF SERVICE: Speedera reserves the right to suspend service if the
Customer is more than 10 days late in making payments for recurring services or
exceeds five times the Committed Amount during the month for any service.
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USAGE CAP: Speedera reserves the right to cap Customer's usage in any month at
five times the Committed Amounts.
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DELINQUENT PAYMENT: Speedera reserves the right to change payments terms and
require deposits if the Customer is more than 10 days late in making payments
twice during the Term of the Contract.
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PRICES AND COMMITTED AMOUNTS: All prices and Committed Amounts are per month
unless otherwise stated in this Services Schedule.
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STANDARD INVOICING & PAYMENT TERMS: Customer will be invoiced on the first day
of each month for the Total Monthly Committed Amount set forth above in the
Services Schedule, and Customer will be invoiced on the last day of each month
for any additional usage above the Total Monthly Committed Amount. One-Time
charges will be invoiced upon execution of this Services Schedule. Payment is
due 30 days after invoice date for the Total Monthly Committed Amount and 15
days after invoice date for additional usage and any One-Time charges.
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COMMITTED AMOUNT: Customer shall pay the fee for any Committed Amount whether or
not Customer actually utilizes such Committed Amount. Customer may increase the
Committed Amount at any time by signing and returning to Speedera an amended
Services Schedule, which reflects the increased Committed Amount. Customer will
be charged at the unit price equivalent for the increased level of commitment on
usage up to the higher Committed Amount for the subsequent months. The increased
Committed Amount will stay in effect for the remainder of the contract term.
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PARTIAL MONTHS: Full committed amounts and monthly fees apply to all partial
months.
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DETAIL DESCRIPTIONS: More detailed descriptions of the Services are contained in
the SpeedEye user interface, which are incorporated herein and made part hereof
by this reference.
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SPECIAL TERMS (OVERRIDE): Any terms set forth in the Special Terms section below
shall control in the event of any inconsistency between the terms contained in
the Special Terms section and any others terms set forth in this Services
Schedule.
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SPECIAL TERMS: The total annual Committed Amount for the Dual Site plan is a
total of 6TB of Data Transfer and a total of 480GB of Storage. Customer's
monthly Committed Amount is 250GB of Data Transfer and 20GB of Storage. Each
month, Customer will pay for the monthly Committed Amount regardless of whether
or not Customer actually uses such amount, and will pay for usage above the
monthly Committed Amount at the rates set forth above. In the last month of the
Term, Customer is obligated to pay for any underutilization in both Data
Transfer and Storage, and such payment will be calculated by taking the
difference between the amounts owed for the annual Committed Amount and the
amounts paid each month for actual usage of Data Transfer and Storage. If
Customer's usage for Data Transfer or Storage exceeds the annual Committed
Amount, then Customer shall reset the Annual and Monthly commitment in the form
of a new contract period.
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SIGNATURE SECTION:
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Customer Speedera Networks Inc.
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Signature of Authorized Individual Signature of Authorized Individual
Name (Please Print): Name (Please Print):
Title: Title:
Date: Date:
Speedera Networks Inc. Confidential
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