EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
EXODUS COMMUNICATIONS, INC
MASTER SERVICES AGREEMENT
AGREEMENT NO. ____
THIS MASTER SERVICES AGREEMENT (this "Agreement") is made effective as of
the Acceptance Date (November 7, 1997) indicated in the Services and Price Form
attached hereto as Attachment 1, by and between Exodus Communications, Inc., a
------------
California corporation doing business 0000 Xxx Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 ("Exodus") and the customer identified below ("Customer").
A. Exodus is in the business of providing certain services to
its customers, including Internet connectivity and the provision and
maintenance of physical space and facilities suitable for the
placement and operation of telecommunications, networking, and other
computer equipment.
B. Customer desires to engage Exodus to provide such services
to Customer, and Exodus desires to provide such services, on the terms
and conditions of this Agreement.
C. Customer and Exodus have agreed to enter into this Agreement
for Exodus's provision of, and Customer's payment to Exodus for such
services.
This Agreement, including all Attachments hereto listed below, which are
incorporated herein by this 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.
EXODUS COMMUNICATIONS, INC. Customer Name: GEOCITIES
2650 San Xxxxx Expressway Address: 0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xxxx X. Xxxxxx
----------------------- ----------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxx X. Xxxxxx
--------------------- ---------------------------
Title: CFO and COO Title: V.P. Operations
-------------------------- --------------------------------
Date: 11/10/97 Date: 11/08/97
--------------------------- ---------------------------------
INCLUDES: X Attachment 1: Services and Price Form
X Attachment 2: Terms and Conditions
X Attachment 3: Rules and Regulations
X Attachment 4: Customer Equipment
X Attachment 5: Registration Form
X Attachment 6: Negotiated Changes
1
EXODUS
ATTACHMENT 1
PRICE QUOTATION FOR INTERNET DATA CENTER SERVICES
Customer Name: GeoCities Quote No: 0428-1A
Request for Service November 9, 1997 __________________________
Date
GEOCITIES SOLUTION
------------------
Exodus Communications shall provide GeoCities with scaleable bandwidth as
needed, a Virtual Internet Data Center, Tape Back-Up Services, Switch Management
Services, System Administration, Management Services for $[***] per Mbps as
outlined below:
Colocation Connectivity Tiered Pricing:
---------------------------- ------------------------------------- ---------- ---------------- ----------------------
Product Number Description Qty Start up Monthly
---------------------------- ------------------------------------- ---------- ---------------- ----------------------
Exo-ColNet-U100 Dedicated Bandwidth as Required, 2 $[***]
Fast Ethernet connection(s), Floor
at 120 Mpbs (See Billing Schedule
Below)
---------------------------- ------------------------------------- ---------- ---------------- ----------------------
Exo-ColNet-U100SU Colocation backbone setup, per 100 2 $[***]
Mbps feed
---------------------------- ------------------------------------- ---------- ---------------- ----------------------
EXODUS SUBTOTAL $[***] $[***]
---------------------------- ------------------------------------- ---------- ---------------- ----------------------
. Exodus Communications shall provision Full Duplex dedicated 100 Mbps
Fast Ethernet Connection(s) to GeoCities' colocation environment within
Exodus' Santa Xxxxx Data Center as required to meet GeoCities bandwidth
requirements.
Billing Schedule for 120 Mbps Floor
--------------------------------------------- --------------------------------------------
Time Period Total Due per Month
--------------------------------------------- --------------------------------------------
Upon Connectivity through Fifty Month Usage Based @ $[***] per Mbps
--------------------------------------------- --------------------------------------------
Sixth Month After Connectivity @ 120 Mbps $[***]@ 120 Mbps
--------------------------------------------- --------------------------------------------
[***] Confidential treatment requested for redacted portion.
2
BILLING SCHEDULE TERMS: For the initial 150 Days and based on installation of
two Fast Ethernet Connections to GeoCities colocation environment within Exodus'
Santa Xxxxx Data Center, Exodus shall xxxx GeoCities $ [***] per Mbps on a usage
basis. At the conclusion of the sixth month and each month thereafter, GeoCities
shall be billed at a floor of 120 Mbps at $[***] per Mbps, minimum, plus any
additional usage over the 120 Mbps at a rate of $[***] per month using the 95th
percentile usage measurement as described below.
[***] Confidential treatment requested for redacted portion.
3
Additional Products and Services included in rate of $[***] per Mbps per Month:
----------------------- --------------------------------------- --------------- --------------- ---------------
PRODUCT NUMBER DESCRIPTION QTY START UP MONTHLY
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-ColNetBU-Tl Private T1 backup access [***]
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-Cage Custom Virtual Data Center Space, 15 1 [***]
Racks
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-Cage Custom VDC Setup 1 $[***]
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-Sup-l0 Bundled 12 hours of on demand support 1 [***]
for customers via Exodus Support Line
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-TpBck-L1 Exodus will manage existing tape 1 $[***] [***]
backup procedures and software. Data
to be backed up to Exodus provided
tape device. This includes Tape
Management service and off-site
storage.
----------------------- --------------------------------------- --------------- --------------- ---------------
Exo-Card 24x7 card access deposit ($100 per 3 [***]
card)
----------------------- --------------------------------------- --------------- --------------- ---------------
Exodus Subtotal $[***] $[***]
Products & Services
----------------------- --------------------------------------- --------------- --------------- ---------------
Exodus Subtotal $[***] $[***]
Colocation
Connectivity
----------------------- --------------------------------------- --------------- --------------- ---------------
----------------------- --------------------------------------- --------------- --------------- ---------------
EXODUS TOTAL $[***] $[***]
----------------------- --------------------------------------- --------------- --------------- ---------------
Custom Area
-----------
. Exodus shall provide GeoCities with 17 Racks for initial configuration.
Baseline Ratio, 120 Mbps, 15 Racks, and (2) 20 Amp circuits per Rack.
(310) 664
------------------------ ---------------------------------------- ---- ----------------------- ----------------------
Telco (WorldCom) Local loop access to customer cage $[***] $[***]
(T-l)
------------------------ ---------------------------------------- ---- ----------------------- ----------------------
NOTE 1:
USAGE BASED BANDWIDTH MEASUREMENT:
---------------------------------
The Exodus monitoring system will record 5 minute samples of the total line
usage (input and output) of your colocation network line over a period of a
month. At the end of the month the samples are sorted and the top 5% samples of
the total line usage are discarded. The highest remaining value is used as the
basis for the bandwidth usage rate for that month and is referred to as the "95
percentile." This rule allows customer to burst up to the 100 Mbps 5% during the
month without incurring any increase in price.
[***] Confidential treatment requested for redacted potion.
4
Note 2:
Connectivity Layout:
[Diagram]
Note 3:
For a 3 Yr. term, Monthly fee will be $[***].
------------------------------ ---------------------- ----------- ------------------- -------------------------------
Equipment
---------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
CISCO Catalyst 5500
------------------------------ ---------------------- ----------- ------------------- -------------------------------
PRODUCT NO: DESCRIPTION: OTY UNIT PRICE EXTENSION
----------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-C5500 Catalyst 5500 Chassis 1 $ [***] $ [***]
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-C5508 Catalyst 5500 Power 1 $ [***] $ [***]
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-X5508/2 Catalyst5500 Second 1 $ [***] $ [***]
PowerSupply
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-X5509 Catalyst 5500 1 $ [***] $ [***]
Supervisor Engine-TX
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-X5213A Catalyst 5000 10/l00 4 $ [***] $ [***]
BaseTX Fast Ethernet
Switching Module
------------------------------ ---------------------- ----------- ------------------- -------------------------------
WS-X5302 Catalyst Switch 1 $ [***] $ [***]
Route Switch Module
------------------------------ ---------------------- ----------- ------------------- -------------------------------
MEM-RSM-64M 64MB DRAM Option 1 $ [***] $ [***]
------------------------------ ---------------------- ----------- ------------------- -------------------------------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
------------------------------ ---------------------- ----------- ------------------- -------------------------------
Total $ [***]
------------------------------ ---------------------- ----------- ------------------- -------------------------------
SHIPPING COST AND TAX WILL BE ADDED UPON DELIVERY
ADDITIONAL UNITS MAY BE PURCHASED FOR THE SAME PRICING
[***] Confidential treatment requested for redacted portion.
5
QUOTATION INCLUDES:
------------------
. Managed Services: In addition to other standard descriptions, GeoCities
----------------
shall receive 12 Hours of bundled System Administration on demand on a
monthly, 7 x 24 basis, based on 120 Mbps floor. GeoCities shall receive 1
Hour of System Administration for each 10 Mbps of usage. Any additional
hours shall be billed at $[***] per Hour.
. Virtual Data Center: Exodus Communications shall provide Racks to GeoCities
-------------------
based on their requirements GeoCities reserves the first right of refusal
for current environment at 1605 Xxxxx which is approximately 400 square
feet. Exodus shall provide GeoCities future growth and power based on ratio
established in this agreement as follows: for each 8 Mbps used by
GeoCities, GeoCities shall receive up to I Rack and (2) 20 Amp circuits, as
required. If space and power are required beyond this ratio, Exodus and
GeoCities shall negotiate in good faith.
. Tape Back-Up: See Exhibit I below for detailed overview of services. Note:
------------
Exodus and GeoCities shall jointly determine the optimal architecture,
configuration, and equipment to be utilized to implement a tape back-up
system that is an Exodus owned operated and managed DLT tape drive system.
. CISCO Catalyst 5500 Management: Exodus shall manage and monitor the
------------------------------
GeoCities' CAT5500 This service includes SNMP Monitoring and configuration.
. 24 x 7 monitoring services include the following: Continuity between the
Exodus network and the client point-of-presence; router and filter
administration; domain name administration; TCP/IP address assignment; M-
Bone tunneling; and DNS administration. This service includes 24 X 7
systems administration staff.
. Exodus shall power cycle GeoCities systems as necessary based on pre-
determined policies and procedures which include access to root passwords
and security identification procedures for requestor on a 7 x 24 basis. See
Exhibit II for detailed of Basic Operator Services. Exodus also shall allow
GeoCities to power cycle remotely by providing appropriate network devices
to perform these tasks.
. SNMP monitoring of the line and report if line is down.
. GeoCities reserves the right to secure and acquire their own unique set of
Internet IP addresses. Exodus will allow Customer to utilize a separately
contracted T3 line in the Exodus Data Center. Customer and their provider
of line will be responsible for installation and testing of the line
directly to the customer site at the Exodus facility. Exodus will cooperate
with Customer and their provider during installation, testing and servicing
of the line. Exodus will not be responsible for any maintenance, testing or
service of the line, nor will it assume any liability associated with the
line, except for the willful or grossly negligent acts of Exodus and its
employees.
. Exodus will provide a fully integrated CAT 5500 in the data center for
redundancy purposes. For other pertinent product options, see Exhibit III.
[***] Confidential treatment requested for redacted portion.
6
The terms and conditions of this proposal include and incorporate by reference
Exodus' terms and conditions of service and Rules and Regulation.
GEOCITIES EXODUS COMMUNICATIONS, INC.
Signature: /s/ GeoCities Signature: /s/ Exodus Communications, Inc.
------------------------ --------------------------------
(Authorized Signature) (Authorized Signature)
Title: V.P. Operations Title: CFO and COO
---------------------------- ------------------------------------
Date: 11/08/97 Date: 11/10/97
----------------------------- -------------------------------------
7
EXHIBIT 1
TAPE MANAGEMENT SERVICE
-----------------------
DESCRIPTION
Under this service offering Exodus operations personnel will remove and insert
backup tapes from a customer designated tape or jukebox device. Exodus personnel
can conduct this procedure according to a predefined schedule or on a on-demand
basis.
TYPICAL ACTIONS SUPPORTED
. Put new or recycled tapes into a jukebox or tape device
. Remove tapes from a jukebox or tape device
. Assist customer as "remote hands onsite" in the event of a tape jam
. Place removed tapes in customer designated tape storage container or
cabinet in colocation space
. Assist in making tapes available for off-site pickup via Exodus contracted
storage provider or customer chose provider
. Weekly off-site tape storage pickup for up to three 4/8mm tapes
RESPONSE TIMES FOR TAPE RETRIEVAL
. 1 hour response for tape insertion or removal requests of tapes located in
customer colocation space.
. 2 hour, 5 hour and 24 hour response times for off-site tapes can be offered
on a on-demand basis and will incur separate per incident charges.
. 1 week response time for off-site tapes is included.
REQUIRED INFORMATION
. Contact Information
Provides all customer contact information address, email, voice mail,
beeper.
A list of authorized people who can make use of tape exchange service
requests.
. Tape Insertion and Removal Procedure
Detail procedures describing how to handle tapes and access tape
device or jukebox.
. Sign in sheet
Log to be signed when Exodus employee enters customers cage
. Off-site storage log (optional service)
To be used as part of managing off-site storage. The log will record
date/time when and which tapes were picked up for off-site storage.
. Daily Email
Daily email will be sent that summarizes information that was backed-
up the previous day
8
EXHIBIT II
BASIC OPERATOR SERVICES
-----------------------
DESCRIPTION
Under this service offering Exodus operations personnel can act as your remote
"hands on-site" when you can't physically be near your system. It does not
provide for any system administration level tasks. If a service requiring access
to the customer area or system is requested, it is assumed such permission will
be granted however, Exodus will notify Customer promptly after any such access.
Basic Operator Service shall be on a 24 x 7 basis. The creation and
establishment of this scope of work shall be defined by both GeoCities and
Exodus in best efforts not later than one month after connectivity.
TYPICAL SERVICES SUPPORTED
. Reboot or power-cycle colocated devices (from keyboard or power switch)
. Provide onsite equipment LED status feedback
. Provide console output feedback
. Cable check/swap
. Swap equipment and server components
REQUIRED INFORMATION
The above typical services must be requested on an on-demand basis or agreed
upon prior to installation between Exodus and the customer (i.e. documented with
an operator's manual). Below is some sample information that will be required
documentation for an operator's manual.
. Contact Information
Provides all customer contact information address, email, voice mail,
beeper.
A list of authorized people which can make use of operator service
requests.
. InterNIC Registration Information
Usually provides IP address, domain name...
. Equipment Inventory Information
System/component list for records (including serial numbers, system
name, 0/S revision etc.)
. Network Diagram (if applicable)
LAN diagram with system names and other relevant information
. Operators Guide (if applicable)
Any detailed instructions of procedures that may be requested of Exodus
operators on an on-demand basis.
9
EXHIBIT III
OTHER PRODUCT OPTIONS:
---------------------
---------------------------------------------------------------------------------------------------------------
Product Number Description Qty Start up Monthly
---------------------------------------------------------------------------------------------------------------
Ex-ColNet-Dl0 10 Mbps Ethernet connection 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-ColNet-U1OSU Collocation backbone setup and Configuration 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-cage-R78 Basic 7x8 cage 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-Cage-R785U 7x8 cage setup 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-cage-R148 Basic 14x8 cage 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-Cage-R148SU 14x8 cage setup 1 $[***]
---------------------------------------------------------------------------------------------------------------
Exo-Rack-100 Full Rack 1 $[***] $[***]
---------------------------------------------------------------------------------------------------------------
[***] Confidential treatment requested for redacted portion.
10
ATTACHMENT 2
TERMS AND CONDITIONS
1 DEFINITIONS.
1.1 "Customer Area" means the portion of the Internet Data Centers made
available to Customer hereunder for the placement of Customer Equipment.
1.2 "Customer's Business" means Customer's services and/or products to be made
available via the Internet in connection with this Agreement.
1.3 "Customer Equipment" means Customer's computer hardware, peripheral, and
other tangible equipment justified in Attachment 4, as amended from time to
------------
time, that Customer places in the Customer Area pursuant to this Agreement. All
changes in Customer Equipment, including but not limited to installation and
removal of Customer Equipment, must be approved by Exodus, which shall not be
unreasonably withheld or delayed. As between Exodus and Customer, the parties
acknowledge and agree that all Customer Equipment is owned by Customer.
1.4 "Customer Materials" means all software, data, information contained in
documentation, and other information and intangibles used by Customer to
operate, install, and/or maintain Customer's Business through the Customer
Equipment or provided to Exodus by Customer for such purposes or otherwise
pursuant to this Agreement. As between Exodus and Customer, the parties
acknowledge and agree that all Customer Materials are owned by Customer.
1.5 "Installation Date" means the date the Customer Equipment is actually
installed and approved by Customer as operational.
1.6 "Internet Data Centers" means the sites owned or leased by Exodus
containing the Customer Area and equipment used by Exodus to provide Internet
Data Center Services.
1.7 "Internet Data Center Services" means the services and other benefits to be
provided by Exodus to Customer under this Agreement, as described in Attachment
----------
1, as amended from time to time, or substantially similar services if, in the
-
reasonable opinion of Exodus, such substantially similar services would provide
Customer with substantially similar benefits.
1.8 "Representatives" means the individuals identified and authorized by
Customer to have access to the Internet Data Centers and the Customer Area in
accordance with this Agreement, whose names are listed in Section 4.4 herein.
The Representatives may be changed by Customer from time to time by written
notice to Exodus.
1.9 "Rules and Regulations" means the general rules and regulations issued by
Exodus relating to its provision of Internet Data Center Services to its
customers, the current version of which is attached as Attachment 3, which may
------------
be supplemented by Exodus from time to time, provided, however, that Customer
shall not be bound by any changes made by Exodus until Exodus has notified
Customer in writing of any changes and Customer has agreed to be bound thereto.
11
2 INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, including but not limited
to Customer's timely payment to Exodus of all fees specified in this Agreement
and Customer's compliance with the Rules arid Regulations, Exodus will provide
to Customer the Internet Data Center Services.
3 FEES AND BILLING.
3.1 Fees. Customer will pay all fees due hereunder according to the Services
and Price Form attached as Attachment 1, as amended from time to time by the
------------
parties.
3.2 Billing Commencement. Except for any fees required to be paid prior to or
on the Installation Date (as indicated in the Services and Price Form), billing
for Internet Data Center Services indicated in the initial Services and Price
Form shall commence on the Installation Date. In the event that the Services and
Price Form is amended after the Installation Date to include 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.
3.3 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. Customer shall
not be responsible for any fees, costs or any other charges that are not billed
by Exodus and received by Customer within ninety (90) days of the date that such
fees, costs or charges are incurred. In the event of a disputed invoice, the
parties agree to document any dispute settlements in writing. All payments will
be made in U.S. dollars at Exodus' address set forth in this Agreement or at
such other address, or to such other bank account, as Exodus may from time to
time indicate by proper notice to Customer. 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 after
consultation with Customer and based on reasonable information Exodus determines
that Customer is not creditworthy or is otherwise not financially secure, Exodus
may, upon written notice to Customer with an adequate opportunity to provide
evidence of credit worthiness, 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.
3.4 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.
4 CUSTOMER'S OBLIGATIONS.
4.1 Compliance with Law. Customer agrees that in connection with the exercise
of its rights and performance of its obligations under this Agreement, Customer
will comply in all material respects with all applicable laws and regulations.
Customer acknowledges that Exodus exercises no control whatsoever over the
content of the information passing through its Internet Data Centers, and that,
as between Exodus and Customer, it is the sole responsibility of Customer to
ensure that the information it transmits and receives complies with all
12
applicable laws and regulations.
4.2 Compliance with Rules and Regulations. Customer agrees that it will comply
at all times with Exodus' Rules and Regulations in existence from time to time
and of which it has been notified.
4.3 Customer's Costs. CUSTOMER AGREES THAT IT WILL BE SOLELY RESPONSIBLE, AND
AT EXODUS' REQUEST WILL REIMBURSE EXODUS, FOR ALL COST 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, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 3.3. EXODUS SHALL
NOTIFY CUSTOMER WHEN ANY SUCH EXPENSES ARE EXPECTED TO BE INCURRED. EXODUS WILL
BE SOLELY LIABLE FOR COSTS INCURRED BY EXODUS AT EXODUS' INITIATION THAT ARE NOT
PRE-APPROVED BY CUSTOMER.
4.4 Access and Security. CUSTOMER WILL BE FULLY RESPONSIBLE FOR ANY CHARGES,
COSTS, EXPENSES, AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS USE OF, OR
ACCESS TO, THE INTERNET DATA CENTERS AND/OR CUSTOMER AREA, INCLUDING BUT NOT
LIMITED TO ANY UNAUTHORIZED USE OF ANY ACCESS DEVICES PROVIDED TO CUSTOMER BY
EXODUS HEREUNDER, EXCEPT RESULTING DIRECTLY FROM EXODUS' OR ITS EMPLOYEES'
NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT WITH THE ADVANCED WRITTEN CONSENT OF
EXODUS, CUSTOMER'S ACCESS TO THE INTERNET DATA CENTERS WILL BE LIMITED SOLELY TO
ITS REPRESENTATIVES LISTED ON THE REGISTRATION FORM ATTACHED HERETO AS
ATTACHMENT 5, AS AMENDED FROM TIME TO TIME.
4.5 No Competitive Services. Customer may not at any time permit any Internet
Data Center Services to be utilized for the provision of any services that
compete with any Exodus services, without Exodus' prior written consent. Exodus
agrees that none of the services currently provided by Customer competes with
any Exodus services.
4.6 Insurance.
(a) Minimum Levels. Each party will keep in force and effect during the
term of this Agreement: (i) comprehensive general liability insurance in an
amount not less than $1 million per occurrence for bodily injury and property
damage; (ii) employer's liability insurance in any amount not less than $1
million per occurrence; and (iii) workers' compensation insurance in any amount
not less than that required by applicable law. Each party also agrees that it
and its agents (including contractors and subcontractors) will maintain other
insurance at levels no less than those required by applicable law and customary
in each party's and its agents' industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, or access to the Internet Data Centers, Customer
will furnish Exodus with certificates of insurance which evidence the minimum
levels of insurance set forth above.
(c) Naming the other Party as an Additional Insured. Each party agrees
that prior to the installation of any Customer Equipment, it will cause its
insurance provider(s) to name the other party as an additional insured and
notify the other party in writing of the effective date thereof.
13
5 REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment and Customer Materials. 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 not purchased from Exodus as
contemplated by this Agreement, and to use, modify, transmit, and distribute the
Customer Materials without infringing, misappropriating, or otherwise violating
any intellectual property rights of any third party. Customer further represents
and warrants that its placement, arrangement, and use of the Customer Equipment
not purchased from Exodus in the Internet Data Centers complies with the
Customer Equipment and Customer Materials Manufacturer's environmental and other
specifications.
(b) Rules and Regulations. Intentionally omitted.
(c) Customer's Business. Customer is familiar with the laws and
regulations applicable to Customer's Business. Customer represents and warrants
that Customer's Business does not as of the Installation Date, and will not
during the term of this Agreement, contain or transmit any material that would
violate any applicable local state, national, foreign or international law. In
the event of any breach, or reasonably anticipated breach, of such warranty, in
addition to any other remedies available at law or in equity, Exodus will have
the right after notice to Customer with an adequate opportunity to cure based on
the specific circumstances, in Exodus' sole discretion: (i) to terminate or
restrict access to any such materials in any manner, and/or (ii) to suspend any
related Internet Data Center Services provided Exodus takes the minimal
action(s) necessary to address the specific violation.
5.2 Warranties and Disclaimers by Exodus.
(a) Service Level Warranty. In the event Customer is unable to transmit
and receive information from Exodus' Internet Data Centers to other portions of
the Internet and Customer notifies Exodus immediately of such event 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, Exodus will, upon Customer's request, credit Customer's
account as follows: If Exodus failed to provide the Internet Data Center
Services for (i) more than two (2) consecutive hours in a calendar month, Exodus
will credit Customer's account the pro-rata connectivity charges for one (1) day
of service; and (ii) more than eight (8) consecutive hours in a calendar month,
Exodus will credit Customer's account the prorata connectivity charges for one
(1) week of service. 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. THIS SECTION 5.2(A) STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.
(b) Internet Data Center Services. Exodus represents and warrants that it
has the legal right and authority, and will continue to maintain the legal right
and authority during the term of this Agreement,
14
to provide the Internet Data Center Services to Customer as contemplated by this
Agreement, and without infringing, misappropriating, or otherwise violating any
intellectual property rights of any third party. Exodus further represents and
warrants that its provision of Internet Data Center Services complies with the
equipment Manufacturer's environmental and other specifications.
(c) Exodus represents that it exercises no control over the content of the
information passing through its Internet Data Centers.
(d) Exodus represents and warrants that, with respect to Customer
Equipment and Customer Materials sold or otherwise provided to Customer by
Exodus and based solely on Exodus' knowledge and reliance in part on any
manufacturer's and/or licensor's express representations and warranties
regarding such Customer Materials,
(i) Customer owns or has the legal right and authority to place and use
the Customer Equipment as contemplated by this Agreement, and to use, modify,
transmit, and distribute the Customer Materials without infringing,
misappropriating, or otherwise violating any intellectual property rights of any
third party; and
(ii) The placement, arrangement, and use of the Customer Equipment and
Customer Materials in the Internet Data Centers, as permitted by Exodus,
complies with the Customer Equipment and Customer Materials Manufacturer's
environmental and other specifications.
(e) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN
SUBSECTIONS (A), (B), (C) AND (D) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS
PROVIDED AND SPACE MADE AVAILABLE BY EXODUS HEREUNDER ARE PERFORMED, PROVIDED,
AND MADE AVAILABLE ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA
CENTERS 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, AND
NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR
TRADE PRACTICE. EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES
PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(f) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. WHILE EXODUS' INTERNET DATA CENTER SERVICES PROVIDE CUSTOMERS WITH
CONNECTIVITY TO THE INTERNET, EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF
INFORMATION TO OR FROM EXODUS' INTERNET DATA CENTERS TO 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.
15
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' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Materials.
(a) CERTAIN CUSTOMER EQUIPMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER
EQUIPMENT LOCATED ON RACKS, 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' 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.
(b) EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY
CUSTOMER MATERIALS RESULTING FROM ANY CAUSE WHATSOEVER, EXCEPT AS A RESULT OF
EXODUS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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 THE CUSTOMER EQUIPMENT, THE CUSTOMER
MATERIALS, THE CUSTOMER'S BUSINESS, OR OTHERWISE.
6.4 No Liability for Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EXODUS BE LIABLE FOR ANY LOST
ADVERTISING OR OTHER 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 MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
PRODUCTS LIABILITY OR OTHERWISE.
6.5 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.
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 bask 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.
16
7 INDEMNIFICATION.
7.1 Customer's Indemnification of Exodus.
(a) Customer will indemnity and hold Exodus, its affiliates, shareholders,
officers, directors, employees, agents, representatives, and customers harmless
from and against any and all costs, liabilities, losses, and expenses
(including, but not limited to, reasonable attorneys' fees arid fees of experts)
arising out of any claim, suit, action or proceeding (each, an "Action"), and
Customer will pay any settlement reached or judgment entered thereon against
Exodus or such third party, to the extent such Action arises from an allegation
that any of the following has occurred or will occur:
(i) with respect to the Customer's Business, Customer Materials, or
Customer Equipment: (A) infringement of any intellectual property rights; (B)
misappropriation of any intellectual property rights; (C) defamation, libel,
slander, obscenity, pornography, or violation of the rights of privacy or
publicity; or (D) flaming, spamming, or any other offensive, harassing or
illegal conduct or violation of the Rules and Regulations; or
(ii) 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 resulting from Customer's or
Customer's Representative's or Invitee's negligence or willful misconduct; or
(iii) any other damage arising from the Customer Equipment, Customer
Materials, or Customer's Business, except to the extent such damage is caused by
Exodus, its employees or other customers.
(b) Exodus will give Customer prompt written notice of the existence of
any such Action of which Exodus becomes aware, and an opportunity to participate
in the defense thereof at Customer's expense.
7.2 Exodus' Indemnification of Customer.
(a) Exodus will indemnify and hold Customer, its affiliates, shareholders,
officers, directors, employees, agents, and Representatives harmless from and
against any and all reasonable costs, liabilities, losses, and expenses
(including, but not limited to, reasonable attorneys' fees) arising out of (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 and (ii) personal injury to Customer's Representatives from
Exodus's negligence or willful misconduct.
(b) Customer will give Exodus 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 at Exodus' expense.
8 TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of one (1) year 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. Either party may terminate this Agreement for
convenience at any time effective after the first (1st) anniversary of the
Installation Date by providing ninety (90) days' prior written
17
notice to the other party.
(b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party materially breaches any term or condition of
this Agreement, including but not limited to the payment of fees, and fails to
cure such breach within thirty (30) days after written notice of the same; (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 which have accrued as of
such expiration or termination 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, accounting, or administrative record keeping requirement;
and
(d) Customer will remove from the Internet Data Centers all Customer
Equipment, Customer Materials, and any of its other property within the Internet
Data Centers within five (5) business 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) after a final notice to Customer,
liquidate the property in any reasonable manner.
(e) Notwithstanding the foregoing, Customer shall be entitled to retain
control over the route of all IP addresses used by Customer during the preceding
ninety (90) days for thirty (30) days following the termination of this
Agreement.
8.5 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 3, 4, 5, 6, 7, 8, 9, and 10.
9 CONFIDENTIAL INFORMATION.
9.1 Confidential Information. Each party acknowledges that it will have access
to certain confidential information and materials 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
18
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.
9.2 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.
9.3 Remedies. Notwithstanding anything to the contrary in this Agreement, in
the event of any intentional breach of this Section 9, the non-breaching party
will be entitled to any remedies available at law and/or in equity.
10 GENERAL PROVISIONS.
10.1 Governing Law. This Agreement is made under and will be governed by and
construed in accordance with the laws of the State of California, United States
of America (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.
10.2 Arbitration. The parties will in good faith attempt to resolve any disputes
relating to the terms, interpretation or performance of this Agreement (other
than claims for preliminary injunctive relief or other prejudgment remedies)
through mutual consultation before resorting to any other dispute resolution
mechanisms. If mutual consultation fails to resolve any dispute, such dispute
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.
10.3 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.
10.4 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 it has been granted only a license to occupy the
Customer Space and use the Internet Data Centers in accordance
19
with this Agreement, Customer has not been granted any real property interest in
the Customer Space or Internet Data Centers, and Customer has no rights as a
tenant or otherwise under any real property or landlord/tenant laws,
regulations, or ordinances. For good cause (eg, violation or threatened
violation of applicable law or Rules and Regulations), Exodus may suspend the
right of any Representative or other Customer personnel to visit the Internet
Data Centers.
10.5 Inherently Dangerous Applications. The Internet Data Center are not
intended nor provided for use in connection with, and Customer will not use them
for, any nuclear, aviation, mass transit, life-support, or any other inherently
dangerous applications or services, the failure of which could result in death,
personal injury, catastrophic damage, or mass destruction.
10.6 Marketing. Customer agrees that Exodus may refer to Customer by trade name
and trademark, and may briefly describe Customer's Business, in Exodus's
marketing materials and web site. Customer hereby grants Exodus a license to use
any Customer trade names, trademarks or service marks solely in connection with
the rights granted to Exodus pursuant to this Section 10.6.
10.7 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.
10.8 Severability. 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.
10.9 Waiver. 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.
10.10 Assignment. Neither party may assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of the other party, except that this Agreement may be assigned in whole
as part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets, provided that it has notified such other party
within thirty (30) days subsequent to the effective date of such event. Any
attempted assignment or delegation without such consent will be void. This
Agreement will bind and inure to the benefit of each party's successors and
permitted assigns.
10.11 Notices. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by confirmed facsimile, 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, or confirmed by facsimile, whichever is earlier.
10.12 Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original,
20
but all of which together shall constitute one and the same instrument.
10.13 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 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.
10.14 Priority. The following order of precedence will govern any conflict or
discrepancy between any portions of this Agreement:
(1) Attachment 6.
(2) Attachment 2.
(3) Attachment 3.
(4) Signature Page.
(5) Attachment 4.
(6) Subsequent Attachment (s) 1.
(7) Initial Attachment 1.
(8) Attachment 5.
21
ATTACHMENT 3
RULES AND REGULATIONS
Each Exodus Customer and its Representatives, employees, contractors,
customers, agents and users of Customer's online facilities are subject to these
Rules and Regulations in connection with their use of Exodus' Internet Data
Center Services.
ACCESS TO INTERNET DATA CENTERS
. Only those individuals identified by Customer as its Representatives may
access the Internet Data Centers. Customer may not allow any unauthorized
persons to access the Internet Data Centers.
. Customer will notify Exodus in writing of any change in Customer's
Representatives.
. Customer agrees to adhere at all times to security measures that have been
established by Exodus to protect the Internet Data Centers, its equipment
and its Customers' equipment.
USE OF INTERNET DATA CENTER FACILITY
Customer must keep the Customer Area clean at all times. Customer may
not store any paper products or materials of any kind in the Customer Area
(other than equipment manuals).
Customer may not bring, or make use of, any of the following into the
Facility:
. Food or drink. . Alcohol or other intoxicants.
. Tobacco products. . Electro-magnetic devices.
. Explosives. . Radioactive materials.
. Weapons. . Photographic or recording
. Chemicals. equipment of any kind
. Illegal drugs. (other than tape back-up
equipment).
EQUIPMENT AND CONNECTIONS
. All Customer Equipment must be clearly labeled with Customer's name (or
code name provided to Exodus) and individual component identification.
. Customers may not connect or disconnect any Customer Equipment or other
equipment except as specifically pre-approved by an authorized employee of
Exodus, at least 48 hours in advance of proposed installation, except as
otherwise approved by Exodus.
. All connections to and from Customer Equipment must be clearly labeled.
. Customer Equipment must be configured and run at all times in compliance
with the manufacturer's specifications, including clearance requirements.
. Exodus makes available at its Data Centers certain equipment for the
temporary use by Customers at the Internet Data Centers. This equipment is
provided on an "AS IS" basis without any warranties of any kind. Customer
may borrow and/or use any Exodus property or equipment, at its own risk,
after receiving permission from Exodus.
22
SCHEDULED MAINTENANCE
Periodically, Exodus will conduct routine scheduled maintenance of its Internet
Data Centers and Internet Data Center Services pursuant to a schedule posted on
Exodus' World Wide Web site (xxxx://xxx.xxxxxx.xxx/xxx maintenance frame.html).
During such time, Customer's Equipment may be unable to transmit and receive
data and Customer may be unable to access its Equipment. Customer agrees to
cooperate with Exodus during the scheduled maintenance so that Exodus may keep
such period or time to a minimum.
MISCONDUCT
Customer and its Representatives may not:
. Misuse or abuse any Exodus property or equipment;
. Make any unauthorized use or interfere with any property or equipment of
any other Exodus customer;
. Harass any individual, including Exodus personnel and representatives of
other customers of Exodus; or
. Engage in any activity that is in violation of the law, or aid in criminal
activity while on Exodus property or in connection with the Internet Data
Center Services.
ONLINE CONDUCT
Customer will not, and will not permit any persons using Customer's
online facilities (including but not limited to Customer's Web site(s) and
transmission capabilities), to do any of the following:
. Send Spam (unsolicited commercial messages or communications in any form)
. Infringe or misappropriate the intellectual property rights of others. This
includes posting copyrighted materials without appropriate permission,
using trademarks of others without appropriate permission or attribution,
and posting or distributing trade secret information of others in violation
of a duty of confidentiality.
. Violate the personal privacy rights of others. This includes using and
distributing information about Internet users without their permission,
except as permitted by applicable law.
. Send, post or host harassing, abusive, libelous or obscene materials or
take any similar actions.
. Intentionally omit, delete, forge or misrepresent transmission information,
including headers, return addressing information and IP addressees or take
any other actions intended to cloak Customer's or its users' identity or
contact information.
. Use the online facilities for any illegal purposes.
. Assist or permit any persons in engaging in any of the activities described
above. If Customer becomes aware of any such activities, Customer will take
all actions necessary to stop such activities immediately, including, if
necessary, terminating Customer's user's access to Customer's online
facilities.
23
MODIFICATION OF RULES AND REGULATIONS
Exodus reserves the right to change these Rules and Regulations at any
time. Customer is responsible for regularly reviewing these Rules and
Regulations. Continued use of the Internet Data Center Services following any
such changes shall constitute the Customer's acceptance of such changes.
24
ATTACHMENT 4
CUSTOMER EQUIPMENT
Item Date In/Out Customer Initials Exodus Initials
---- ----------- ----------------- ---------------
1. In:
Out:
2. In:
Out:
3. In:
Out:
4. In:
Out:
5. In:
Out:
6. In:
Out:
7. In:
Out:
8. In:
Out:
9. In:
Out:
10. In:
Out:
11. In:
Out:
12. In:
Out:
13. In:
Out:
14. In:
Out:
25
ATTACHMENT 5
REGISTRATION FORM
COMPANY INFORMATION
--------------------------------------------------------------------------------
Company Name: Date:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
BILLING INFORMATION
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Purchase Order No.:
--------------------------------------------------------------------------------
INSTALLATION SITE
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Contact Hours and Notes:
--------------------------------------------------------------------------------
FIRST TECHNICAL CONTACT
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Contact Hours and Notes:
--------------------------------------------------------------------------------
SECOND TECHNICAL CONTACT
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Contact Hours and Notes:
--------------------------------------------------------------------------------
26
THIRD TECHNICAL CONTACT
--------------------------------------------------------------------------------
Contact Name: Title: Email:
--------------------------------------------------------------------------------
Phone: Fax: Pager:
--------------------------------------------------------------------------------
Address:
--------------------------------------------------------------------------------
City: State: Zip:
--------------------------------------------------------------------------------
Contact Hours and Notes:
--------------------------------------------------------------------------------
TECHNICAL INFORMATION
--------------------------------------------------------------------------------
Number of Host Computers or
IP Subnet Address space required: (1)
--------------------------------------------------------------------------------
Currently assigned IP Subnet
Address or Not Applicable:
--------------------------------------------------------------------------------
Circuit Demarcation
Information: (2)
--------------------------------------------------------------------------------
Exists (Yes or No) Exodus DNS Support
(Primary or Secondary)
--------------------------------------------------------------------------------
First Choice Domain Name:
--------------------------------------------------------------------------------
Second Choice Domain Name:
--------------------------------------------------------------------------------
Current Internet Service Provider:
--------------------------------------------------------------------------------
Notes:
1. This information is used to determine the number of subnets and IP address
space that will be required.
2. A network diagram is required if the number of host computers or requested
address space is greater than 254.
3. Required for point to point circuits, i.e., T1.
For example: Room 105, Xxxx 34.
27
ATTACHMENT 6
NEGOTIATED CHANGES
A. The following replaces and supersedes Sect on 5.2(a) of Attachment 2 (Terms
and Conditions):
5.2(a) Efforts to Avoid Customer Service Interruption or Disruption; Remedies
(i) Establishment of a Problem Resolution Committee. The parties
acknowledge and agree that maintaining Internet connectivity at the levels
contracted for by Customer pursuant to the internet Data Center Services is
critical to Customer's business. The parties also recognize that the individual
and joint efforts of both parties are necessary to ensure that such levels are
maintained and any problems relating thereto are addressed and resolved
expeditiously. Accordingly, Exodus and Customer hereby establish a Problem
Resolution Committee (the "Committee") comprised of two representatives each
from Exodus and Customer. Upon execution of this Agreement, each party will
provide the other with the names and contact information of its representatives
to the Committee. The Committee shall meet periodically at times and places
mutually agreed to by both parties to address and resolve any anticipated
problems or other issues that could adversely impact Customer's ability to
receive the Internet Data Center Services, including but not limited to steps
being taken by Exodus to ensure that Exodus can provide Internet Data Center
Services at future levels anticipated by Customer. At least one representative
from each party also shall meet (either in person or by telephone) immediately
upon the occurrence of any event that prevents Customer from receiving Internet
Data Center Services. Exodus and Customer each agrees to take all reasonable
actions, including immediately notifying the other party of any actual or
potential problems relating to the Internet Data Center Services, to resolve any
actual problems and avoid any potential problems. Exodus will not charge
Customer any additional fees for performing its obligations under this Section
5.2(a)(i) unless the problems to be resolved result from Customer's negligence
and require significant time commitments from Exodus.
(ii) Packet Loss and Packet Collision. To prevent packet loss and packet
collision, Exodus to provide to Customer, in connection with every 100 Mbps of
sustained bandwidth or fraction thereof utilized by Customer, Exodus will
provide two (2) connections on two switches to connect Customer's equipment to
Exodus' network.
(iii) Service Level Warranty. In the event Customer experiences any of the
following and Customer notifies Exodus of such event 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, credit Customer's account as described below:
28
(A) Inability to Access the Internet (Downtime). If Customer is unable to
transmit and receive information from Exodus' Internet Data Centers (ie, Exodus'
LAN and WAN) to other portions of the Internet because Exodus failed to provide
the Internet Data Center Services for (i) more than [***] in a calendar month,
Exodus will credit Customer's account the pro-rata connectivity charges for
[***] of service, up to an aggregate maximum credit of connectivity charges for
[***] of service in any [***]. 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 provided the aggregate amount of time that Exodus causes
Customer to be unable to access the Internet as a result of such maintenance
does not exceed [***]. For purposes of the foregoing, "unable to transmit and
receive" shall mean sustained packet loss in excess of 50% based on a sampling
of at least 100 packets per destination per minute.
(B) Packet Loss and Latency. Exodus does not proactively monitor the
packet losses or transmission latency of specific customers. Exodus does,
however, proactively monitor the packet losses and transmission latencies of all
of its customers within its LAN and WAN. In the event that Exodus discovers
(either from its own efforts or after being advised by Customer) that Customer
is experiencing packet loss in excess of 2% (based on a sampling of at least 100
packets per destination) ("Excess Packet Loss") or transmission latency in
excess of 30 milliseconds within Exodus' LAN, 120 milliseconds within Exodus'
WAN within the United States (and 400 milliseconds for the WAN outside the
United States) (collectively, "Excess Latency," and with Excess Packet Loss
"Excess Packet Loss/Latency"), Exodus will take all actions necessary to
determine the source of the Excess Packet Loss/Latency.
(1) Time to Discover Source of Excess Packet Loss/Latency;
Notification of Customer. Within one (1) hour 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 thirty (30) minutes after
identifying the source.
(2) Resolution of Cause of Excess Packet Loss/Latency. If the Excess
Packet Loss/Latency is a Customer Specific Packet Loss/Latency, and the remedy
is within the 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 Latency is caused from within Exodus' LAN
and/or WAN, Exodus will remedy the Excess Packet Loss/Latency within one (1)
hour 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.
[***] Confidential treatment requested for redacted portion.
29
(3) 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 in
control of the source), Exodus will credit Customer's account the pro-rata
connectivity charges for [***] of service for every [***] after the time periods
described above that it takes Exodus to resolve the problem, up to an aggregate
maximum credit of connectivity charges for [***] of service in any [***].
(iv) Remedies Shall Not Be Cumulative; Minimum Credit. In the event that
Customer is entitled to multiple remedies hereunder arising from the same event,
such remedies shall not be cumulative and Customer shall be entitled to receive
only the maximum single remedy available for such event. In no event will Exodus
be required to credit Customer in any [***] connectivity charges in excess of
[***] 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. The parties agree that without imposing any
affirmative obligations on Customer and Exodus, if there are any instances where
Customer would be entitled to receive more credits, but for the [***]
limitation, Exodus and Customer shall meet and discuss whether Exodus can
compensate Customer for any losses incurred.
THIS SECTION 5.2(a) STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE
BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.
B. Additional Provisions.
Provided Customer continues to purchase Internet Data Center services at
levels not materially less than those described in the initial Service and Price
Order Form, Exodus agrees to provide the following services, for no additional
charge to Customer, and such services shall be deemed Internet Data Center
Services for purposes of this Agreement:
1. Until such time as Exodus commences direct private peering
relationships with MCI, Sprint and ANS, Exodus will provision a direct transit
DS3 circuit (or other level of bandwidth as may be mutually agreed to from time
to time between Exodus and Customer) directly to the Internet Data Center
containing the Customer Area from an Internet Service Provider that has direct
private peering relationships with MCI, Sprint and ANS. Exodus agrees to use its
best efforts to commence private peering relationships with MCI, Sprint and ANS
as soon as possible, and Exodus currently desires to complete such relationships
by the second quarter of 1998.
2. Exodus will provide tape data back-up and restore services for
Customer Materials such that Exodus and Customer will have the capability to
refresh Customer Materials at a rate of not less than 10GB/hour. Exodus will
provide daily logs of back-ups, to include start time, end time, data location,
and total amount backed up.
[***] Confidential treatment requested for redacted portion.
30
