[Company Logo omitted]
INTERNET SERVICES AND CO-LOCATION AGREEMENT
Please read this Internet Services and Co-Location Agreement (this "Agreement")
carefully before signing, since by signing this Agreement, you consent to all of
its terms and conditions. This Agreement is made by and between AboveNet
Communications, Inc. ("AboveNet") and Customer. This Agreement is effective
upon AboveNet's acceptance as indicated by its signature below on the date below
(the "Effective Date"). This Agreement may be executed in two or more
counterparts, each of which will deemed an original, but all of which together
shall constitute one and the same instrument.
Customer Signature /s/ Xxxxxxx X. Xxxxxxx Customer ID#
------------------------- -----------
(print name) Xxxxxxx X. Xxxxxxx Contract No. C
-------------------- -----------
Title Secretary Effective Date
--------- -----------
Date May 10th 99 AboveNet Signature
Company Name CRYS-TEL Xxxxxxxxxxxxxxxxxx.Xxx, Inc. (print name)
Address 820 - 0000 Xxxx Xxxxxx Xx.
---------------------------------
Xxxxxxxxx, XX, Xxxxxx, X0X-0XX
---------------------------------
Phone 604/000-0000
---------------------------------
Fax 604/000-0000
---------------------------------
--------------------------------------------------------------------------------
Thank you for choosing AboveNet to provide your Internet co-location services.
As used in this Agreement, the term "you" and "Customer" refers to the
above-named corporation, partnership or other business entity that enters into
this Agreement, and "Service" means the transmission of data to and from the
Internet through the network of routers, switches and communication channels
owned and controlled by AboveNet ("Network") together with co-location services
including 24x7 connectivity to the Internet and Co-Location Space, as further
defined in this Agreement and in your Order for AboveNet Services Form (the
"Order Form"). The initial Order Form is attached to this Agreement as Exhibit
-------
A. AboveNet and Customer may enter into subsequent Order Forms, which may
supercede or complement prior Order Forms. As used in this Agreement, the term
"Customer Equipment" refers to any and all computer equipment, software,
networking hardware or other materials placed by or for Customer in the
Co-Location Space, other than AboveNet Equipment.
--------------------------------------------------------------------------------
AboveNet will begin installation, initiation and Service after it receives and
accepts: (1) your Order Form; (2) a copy of this Agreement signed by your
authorized representative and (3) payment of amounts due under Section 1.1
below, detailed on your Order Form.
1. SERVICE FEES AND BILLING. Customer agrees to pay the Service Activation
Charges, Monthly Service Fees, and other fees indicated on the Order Form
(collectively, "Service Fees").
1.1 ACTIVATION CHARGES. AboveNet will xxxx Customer for all Service
Activation Charges and first and last month Service Fees (the
"Activation Charges") upon AboveNet's acceptance of this Agreement and
the Order Form. Above Net will not commence installation, initiation
and Service unless and until it either has received payment in full of
all Activation Charges or has agreed, at its sole option, to extend
credit to Customer.
1.2 RECURRING FEES. AboveNet will begin billing for recurring Service Fees
on the date that it is the earlier of: (a) the Installation Date
specified in the Order Form; and (b) the date that Customer places
Customer Equipment in AboveNet's premises. If, however, Customer is
unable to use the Services commencing on the Installation Date solely
as a result of delays caused by AboveNet, then the Installation Date
specified in the Order Form shall be extended one day for each day of
delay caused by AboveNet. On or about the
165
first day of each month, AboveNet will xxxx Customer for Network
services provided during the previous month, and for co-location
services to be provided in the current month. Recurring Service Fees
do not include monthly telephone company charges which are billed
separately by the local telephone company(s).
1.3 PAYMENT. All Fees and charges will be due, in U.S. dollars, within
twenty (20) days of the date of each AboveNet invoice. Late payments
will accrue interest at a rate of one and one-half percent (1 1/1%)
per month, or the highest rate allowed by applicable law, whichever is
lower. If in its judgment AboveNet determines that Customer lacks
financial resources, AboveNet may, upon written notice to Customer,
modify the payment terms to secure Customer's payment obligations
before providing Services.
1.4 TAXES. All payments required by this Agreement are exclusive of
applicable taxes and shipping charges. Customer will be liable for and
will pay in full all such amounts, other than taxes based on AboveNet
net income.
2. CO-LOCATION.
2.1 INSTALLATION. AboveNet grants you the right to operate Customer
Equipment at the Co-location Space, as specified on your Order Form.
The Co-location Space is provided on an "AS-IS" basis and you may use
the Co-location Space only for purposes of maintaining and operating
Customer Equipment as necessary to support local access communications
facilities and links to AboveNet and to third parties. Customer will
install Customer Equipment in the Co-location Space after obtaining
the appropriate authorization from AboveNet to access AboveNet
premises. Customer will remove and be solely responsible for all
packaging for Customer Equipment.
2.2 ACCESS. You may access the Co-location Space only in accordance with
the AboveNet Co-location Access Policies located at
xxxx://xxx.xxxxx.xxx/xxxx/xxxxxxxx.xxxx, as updated from time to time.
---------------------------------------
Customer may not provide or make available to any third party any
portion of the Co-location Space without AboveNet's prior written
consent, which consent AboveNet may withhold in its sole discretion.
2.3 REMOVAL OF CUSTOMER EQUIPMENT. Customer will provide AboveNet with
written notification two (2) days before Customer wishes to remove any
Customer Equipment. Before authorizing the removal of any Customer
Equipment, AboveNet's accounting department will verify that Customer
will remove such Customer Equipment, and will be solely responsible to
bring appropriate packaging and moving materials. Should Customer use
an agent or other third party (for example, but without limitation, a
common carrier such as U.P.S.) to remove Customer Equipment, Customer
will be solely responsible for the acts of such party, and any damages
caused by such party to Customer Equipment or otherwise. At Customer's
option, AboveNet will remove and package Customer Equipment, and place
such Customer Equipment in a designated area for pick-up, on the
condition that Customer either provides all packaging needed or pays
AboveNet to package Customer Equipment Customer may thereafter remove
Customer Equipment from the designated area, or may arrange for a
carrier to remove and ship such equipment with any necessary insurance
to be paid by Customer.
3. SECURITY. AboveNet does not guarantee security of Customer Equipment, the
Co-Location Space or of the Network. AboveNet requires that you and your
employees comply with all Co-Location Security Procedures, as modified from
time to time, in order to maximize the security of the Network and AboveNet
premises. AboveNet's current Co-Location Security Procedures are located at
xxxx://xxx.xxxxx.xxx/xxxx/xxxxxxxx.xxxx. In particular, you must establish
---------------------------------------
a password with AboveNet for purposes of requesting any support services
with respect to Customer Equipment or your Network connection, either by
telephone or email. Information detailing password requirements is
available on the World Wide Web at xxxx://xxx.xxxxx.xxx/xxxx/xxx.xxxx. Only
----------------------------------
individuals whom you have identified as "Customer Representatives" in
writing to AboveNet will be permitted to enter the Co-Location Space, to
request Services on your behalf, or to request any support services with
respect to Customer Equipment or your Network connection, either by
telephone or email (for example, but without limitation, instructing
AboveNet to modify or reconfigure its Services or to remove Customer
Equipment). For good cause, AboveNet may suspend the right of any Customer
Representative or other person to visit the AboveNet premises and/or the
Co-Location Space. AboveNet will assist in Network security breach
detection or identification, but shall not be liable for any inability,
failure or mistake in doing so.
4. LOCAL AND LONG DISTANCE CARRIERS. AboveNet will provide Customer with a
list of approved third party carriers for data communications and
telecommunications. Customer is responsible for ordering all local and
long-distance lines from such third party carriers and ordering any and all
necessary cross-connects from AboveNet. AboveNet Service Fees for Customer
will be solely responsible for such circuits and for all payments due to
the carriers. Customer will notify the carrier directly when Customer
wishes to terminate or modify such circuit.
5. DOMAIN INFORMATION AND REGISTRATION APPLICATION. If Customer has not
registered the domain name that it wishes to use, Customer may complete the
applicable sections of the Order Form to request registration or a change
in domain name.
166
6. OTHER NETWORKS; APPROVAL AND USAGE. Services include the ability to
transmit data beyond AboveNet's Network, through other networks, public and
private. Use of or presence on other networks may require approval of the
respective network authorities and will be subject to any acceptable usage
policies such networks may establish. Customer will not hold AboveNet
responsible for, and AboveNet will not be liable for, such approval or for
violation of such policies. Customer understands that AboveNet does not own
or control other networks outside of its Network, and AboveNet is not
responsible or liable for performance (or non-performance) within such
networks or within Interconnection points between the Service and other
networks that are operated by third parties.
7. RESALE. Customer may resell the Service after receiving AboveNet's prior
written approval as to the nature and scope of such resale as set forth in
Section 2.2. Should Customer resell any portion of the Service to any other
party, Customer assumes all liabilities arising out of or related to such
third party sites and communications. Customer agrees to enter into written
agreements with any and all parties to which it resells any portion of the
Services with terms and conditions at least as restrictive and as
protective of AboveNet's rights as the terms and conditions of this
Agreement, including, without limitation, Sections 2.3, 3, 6, 8, 9.6-9.8,
10, 11, 12, 14 and 16, and naming AboveNet as a third party beneficiary.
8. ACCEPTABLE USE GUIDELINES. Customer must at all times conform its use of
the Service to AboveNet's Acceptable Use Guidelines and Anti-SPAM Policy,
as AboveNet may update such Guidelines and Policy from time to time. The
current version of AboveNet's Acceptable Use Guidelines can be found at
xxxx://xxx.xxxxx.xxx/xxxx/xxx.xxxx. AboveNet's Anti-SPAM Policy is located
---------------------------------------
at xxxx://xxx.xxxxx.xxx/xxxx/xxxx-xxxx.xxxx. If AboveNet is informed by
---------------------------------------
government authorities or other parties of inappropriate or illegal use of
AboveNet's facilities (including but not limited to the Network) or other
networks accessed through AboveNet, or AboveNet otherwise learns of such
use or has reason to believe such use may be occurring, then Customer will
cooperate in any resulting investigation by AboveNet or government
authorities. Any government determinations will be binding on Customer. If
Customer fails to cooperate with any such investigation or determination,
or fails to immediately rectify any illegal use, AboveNet may immediately
suspend Customer's Service. Further, upon notice to Customer, AboveNet may
modify or suspend Customer's Service as necessary to comply with any law or
regulation as reasonably determined by AboveNet. This includes, without
limitation, any use contrary to the Digital Millennium Copyright Act of
1998. 17 U.S.C. 512.
9. LIMITED SERVICE LEVEL WARRANTY. AboveNet warrants that it will use its
commercially reasonable efforts to minimize Excess Packet Loss and Latency,
and to avoid Downtime, and that AboveNet will provide the following
remedies to Customer: (Excess Packet Loss, Latency and Downtime are defined
below)
9.1 PACKET LOSS AND LATENCY. AboveNet does not proactively monitor the
packet loss or transmission latency of specific customers, AboveNet
does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that
AboveNet discovers (either from its own efforts or after being
notified by Customer) that Customer is experiencing packet loss in
excess of five percent (5%) ("Excess Packet Loss") or transmission
latency in excess of 120 milliseconds round-trip time based on
AboveNet's measurements ("Latency") between any two routers within the
continental United States portion of the Network on average for each
hour, and Customer notifies AboveNet (or AboveNet has notified
Customer), then AboveNet will use its commercially reasonable actions
to determine the source of the Excess Packet Loss or Latency and
correct the problem.
9.2 REMEDY FOR FAILURE. If either Excess Packet Loss or Latency occurs and
it stems from a source within the Network and not from the Customer or
beyond the Network, and if AboveNet fails to correct the Excess Packet
Loss or Latency after using its commercially reasonable efforts for a
period of twenty four (24) hours after the onset of such Excess Packet
Loss or Latency, then AboveNet will credit Customer's account the
pro-rata Bandwith Fees (as set forth in the applicable Order Form) for
the continuous duration of such Excess Packet Loss or Latency,
provided that all such credits will not exceed an aggregate maximum
credit of Bandwith Fees otherwise due from Customer for one (1)
calendar month for failures in any one (1) calendar month.
9.3 INABILITY TO ACCESS THE INTERNET (DOWNTIME). AboveNet will use its
commercially reasonable efforts to avoid Downtime for 99.9% of the
hours as an average calculated over each calendar year. If Customer is
unable to transmit and receive information from the Network to other
portions of the Internet because AboveNet failed to provide Network
access Services ("Downtime") for more than four (4) continuous hours,
then AboveNet will credit Customer's account the pro-rata Bandwith
Fees (as set forth in the applicable Order Form) for the aggregate
maximum credit of Bandwith Fees otherwise due from Customer for one
(1) calendar month for failures in any one (1) calendar month. For
purposes of the foregoing, "unable to transmit and receive" shall mean
sustained packet loss in excess of fifty percent (50%) based on
AboveNet's measurements.
9.4 YEAR 2000 . AboveNet hereby incorporates its Year 2000 Compliance
Disclosure found at xxxx://xxx.xxxxx.xxx/xxxx/x0x.xxxx into this
----------------------------------
Agreement. If Customer experiences any Excess Packet Loss, Latency or
Downtime due to AboveNet's failure to be Year 2000 compliant (as
defined in the Year 2000
167
Compliance Disclosure), Customer will have the remedies set forth in
this Section 9, and the limitations set forth in this Section 9,
Section 11 and the Year 2000 Compliance Disclosure. The Year 2000
Compliance Disclosure, as incorporated into this Agreement, is
provided as a "Year 2000 Readiness Disclosure" as defined in the Year
2000 Information and Readiness Disclosure Act of 1998 (Public Law
105-271, 000 Xxxx. 0000; enacted on October 19, 1998.
9.5 CUSTOMER MUST REQUEST CREDIT. Customer must notify AboveNet within
three (3) business days from the time Customer becomes eligible to
receive a credit under this Section 9 to receive such credit. Failure
to comply with this requirement will forfeit Customer's right to
receive a credit.
9.6 LIMITATION ON REMEDIES. If Customer is entitled to multiple credits
under this Section 9, such credits shall not be cumulative beyond a
total of credits for one (1) calendar month of Bandwidth Fees in any
one (1) calendar month in any event. AboveNet will not apply a credit
under Section 9.2 for any Excess Packet Loss or Latency for which
Customer received a credit under Section 9.3. AboveNet will only apply
a credit to the month in which the incident occurred. Further,
AboveNet will not apply a credit for any period in which Customer
received any bandwidth Services free of charge. Sections 9.2 and 9.3
above state Customer's sole and exclusive remedy for any failure by
AboveNet to provide Services or adequate Service levels, including but
not limited to any outages or Network congestion. AboveNet's blocking
of data communications in contravention of its Anti-SPAM Policy or
Acceptable Use Guidelines shall not be deemed to be a failure of
AboveNet to provide adequate Service levels under this Agreement.
9.7 NO OTHER WARRANTY. Except for the express warranty set out in this
Section 9 above, the Services are provided on an "AS IS" basis, and
Customer's use of the Services is at its own risk. AboveNet does not
make, and hereby disclaims, any and all other express and implied
warranties, including, but not limited to, warranties or
merchantability, fitness for a particular purpose, noninfringement and
title, and any warranties arising from a course of dealing, usage, or
trade practice. AboveNet does not warrant that the Services will be
uninterrupted, error-free, or completely secure.
9.8 DISCLAIMER OF THIRD PARTY ACTIONS AND CONTROL. AboveNet does not and
cannot control the flow of data to or from the Network and other
portions of the Internet. Such flow depends in large part on the
performance of Internet services provided or controlled by third
parties. At times, actions or inactions caused by these third parties
can produce situations in which AboveNet customers' connections to the
Internet (or portions thereof) may be impaired or disrupted. Although
AboveNet will use commercially reasonable efforts to take actions it
deems appropriate to remedy and avoid such events. AboveNet cannot
guarantee that they will not occur. Accordingly, AboveNet disclaims
any and all liability resulting from or related to such events.
10. INSURANCE. Customer will keep in full force and effect during the term of
this Agreement: (i) business loss and interruption insurance in an amount
not less than that necessary to compensate Customer and its customers for
complete failure of Service; (ii) comprehensive general liability insurance
in an amount not less than one (1) million dollars per occurrence for
bodily injury and property damage; (ii) employer's liability insurance in
an amount not less than one (1) million dollars per occurrence; and (iii)
workers' compensation insurance in an amount not less than that required by
applicable law. Customer also agrees that it will be solely responsible for
ensuring that its agents (including contractors and subcontractors)
maintain other insurance at levels no less than those required by
applicable law and customary in Customer's and its agents' industries.
Prior to installation of any Customer Equipment in the Co-location Space or
otherwise as AboveNet may request, Customer will furnish AboveNet with
certificates of insurance which evidence the minimum levels of insurance
set forth above. Customer agrees that prior to the installation of any
Customer Equipment at AboveNet premises or the Co-location Space, Customer
will cause its insurance provider(s) to name both AboveNet and the AboveNet
landlord indicated on the applicable Order Form as additional insured and
notify AboveNet in writing of the effective date of such coverage. Customer
agrees that Customer and its representatives shall not pursue any claims
against AboveNet for any liability AboveNet may have under or relating to
this Agreement unless and until Customer or Customer's employee, as
applicable, first makes claims against Customer's insurance provider(s) and
such insurance provider(s) finally resolve(s) such claims. Any inability by
Customer to furnish the proof the insurance required under this Section 10
or failure to obtain such insurance shall be a material breach of this
Section 10 and of this Agreement.
168
11. LIMITATIONS OF LIABILITY:
11.1 PERSONAL INJURY. Each Customer Representative and any other persons
visiting AboveNet facilities does so at his or her own risk and
AboveNet shall not be liable for any harm to such persons resulting
from any cause other than AboveNet's gross negligence or willful
misconduct resulting in personal injury to such persons during such a
visit.
11.2 DAMAGE TO CUSTOMER BUSINESS. Except as expressly set forth in Section
9 including the limited remedy and other limitations set forth under
Section 9, in no event will AboveNet be liable to Customer, any
Customer Representative, or any third party for any claims arising out
of or related to Customer's business, Customer's customers or clients,
Customer Representative's activities at AboveNet or otherwise, or for
any lost revenue, lost profits, replacement goods, loss of technology,
rights or services, incidental, punitive, indirect or consequential
damages, loss of data, or interruption or loss of use of Service or of
any Customer's business, even if advised of the possibility of such
damages, whether under theory of contract tort (including negligence),
strict liability or otherwise.
11.3 DAMAGE TO CUSTOMER EQUIPMENT. AboveNet assumes no liability for any
damage to, or loss of, any Customer Equipment resulting from any cause
other than AboveNet's gross negligence or willful misconduct. To the
extent AboveNet 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 and further subject to
the limitations set forth in this Section 11.3 and in Section 11.4
below. In no event will AboveNet be liable to Customer, any Customer
Representative, or any third party for any claims arising out of or
related to Customer Equipment for any lost revenue, lost profits,
replacement goods, loss of technology, rights or services, incidental,
punitive, indirect or consequential damages, loss of data, or
interruption or loss of use of any Customer Equipment, even if advised
of the possibility of such damages, whether under theory of contract,
tort (including negligence), strict liability or otherwise.
11.4 MAXIMUM LIABILITY. Notwithstanding anything to the contrary in this
Agreement, AboveNet'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 AboveNet hereunder for the Twelve (12)
month period prior to the event or events giving rise to such
liability.
12. DEFENSE OF THIRD PARTY CLAIMS AND INDEMNIFICATION.
12.1 DEFENSE. Customer will defend AboveNet, its directors, officers,
employees, affiliates and customers (collectively, the "Covered
Entities") from and against any and all claims, actions or demands
brought by or against AboveNet and/or any of the Covered Entities
alleging: (a) with respect to the Customer's business: (i)
infringement or misappropriation of any intellectual property rights;
(ii) defamation, libel, slander, obscenity, pornography, or violation
of the rights of privacy or publicity; or (iii) spamming, or any other
offensive, harassing or illegal conduct or violation of the Acceptable
Use Guidelines or Anti-Spam Policy; (b) any damage or destruction to
the Co-location Space, the Network, AboveNet premises, AboveNet
Equipment or to any other AboveNet customer which damage is caused by
or otherwise results from acts or omissions by Customer, Customer
Representative(s) or Customer's designees; (c) any personal injury or
property damage to any Customer employee, Customer Representative or
other Customer designee arising out of such individual's activities
related to the Services, unless such injury or property damage is
caused solely by AboveNet's gross negligence or willful misconduct; or
(d) any other damage arising from the Customer Equipment or Customer's
business (collectively, the "Covered Claims").
12.2 INDEMNIFICATION. Customer hereby agrees to indemnify AboveNet and each
Covered Entity from and against all damages, costs, and fees awarded
in favor of third parties in each Covered Claim, and Customer will
indemnify and hold harmless AboveNet and each Covered Entity from and
against any and all claims, demands, liabilities, losses, damages,
expenses and costs (including reasonable attorneys (fees)
(collectively, "Losses") suffered by AboveNet and each Covered Entity
which Losses result from or arise out of a Covered Claim.
12.3 NOTIFICATION. Customer will provide AboveNet with prompt written
notice of each Covered Claim of which Customer becomes aware, and, at
AboveNet's sole option, AboveNet may elect to participate in the
defense and settlement of any Covered Claim, provided that such
participation shall not relieve Customer of any of its obligations
under this Section 12.
13. RELIANCE ON DISCLAIMER, LIABILITY LIMITATIONS AND INDEMNIFICATION
OBLIGATIONS. Customer acknowledges that AboveNet has set its prices and
entered into this Agreement in reliance upon the limitations and exclusions
of liability, the disclaimers of warranties and damages and Customer's
indemnity obligations set forth herein, and that the same form an essential
basis of the bargain between the parties. The parties agree that the
limitations and exclusions of liability and disclaimers specified in this
Agreement will survive and apply even if this Agreement is found to have
failed of their essential purpose.
169
14. CONFIDENTIAL INFORMATION. Each party acknowledges that it will have access
to certain confidential information of the other party concerning the other
party's business, plans, customers, technology, and products, including the
terms and conditions of this Agreement ("Confidential Information").
Confidential Information will include, but not be limited to, each party's
proprietary software and customer information. Each party agrees that it
will not use in any way, for its own account or the account of any third
party, except as expressly permitted by this Agreement, nor disclose to any
third party (except as required by law or to that party's attorneys,
accountants and other advisors as reasonably necessary), any of the other
party's Confidential Information and will take reasonable precautions to
protect the confidentiality of such information. 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
or 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; (iv) is independently developed by
the receiving party; or (v) is required to be released by law or
regulation, provided that the receiving party provide prompt written notice
to the disclosing party of such impending release, and the releasing party
cooperate fully with the disclosing party to minimize such release.
15. TERM. This Agreement will be effective beginning on the Effective Date and
ending at the end of the last "Term" specified in any Order Form accepted
by AboveNet, unless terminated as provided in Section 16 below. Use of any
Service after the Term specified on the Order Form under which such Service
was provided will constitute Customer's acceptance of AboveNet's then
current standard Agreement and the fee rates then in effect, but be
terminated by AboveNet upon notice.
16. TERMINATION.
16.1 FOR NONPAYMENT. After fifteen (15) days of non-payment from the due
date, or such longer period as AboveNet's Billing Terms & Conditions
may provide, AboveNet may disable Service. To re-enable Service,
AboveNet will require a reconnection fee. After thirty (30) days of
nonpayment from the AboveNet invoice due date, or such longer period
as AboveNet's Billing Terms & Conditions may provide, AboveNet may
terminate the Service permanently. Termination does not remove
Customer's obligations under this Agreement, including the obligation
to pay all fees for Service until termination or due for a committed,
initial Term.
16.2 UNACCEPTABLE USE; BANKRUPTCY. AboveNet may terminate this Agreement
upon written notice to Customer for violation of the Acceptable Use
Guidelines or Anti-Spam Policy or if Customer 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 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.
16.3 FOR CAUSE. Either party may terminate this Agreement if the other
party materially breaches any term or condition of this Agreement and
fails to cure such breach within thirty (30) days after receipt of
written notice of the same, except in the case of failure to pay fees
which failure is subject to Section 16.1 above or for failure to
comply with AboveNet's Acceptable Use Guidelines or Anti-SPAM Policy
as set forth in Section 16.2.
16.4 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. However, expiration or termination will not
extinguish claims or liability (including, without limitation, for
payments due) arising prior to such expiration or termination.
16.5 EFFECT OF TERMINATION. Upon the effective date of expiration or
termination of this Agreement: (a) AboveNet will immediately cease
providing the Services; (b) any and all payment obligations of
Customer under this Agreement will become due immediately, including
but not limited to Recurring Service Fees through the end of the term
indicated on the Order Form adjusted for the net present value of the
prospective payments; (c) within thirty (30) days after such
expiration or termination, each party will return all Confidential
Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of
such Confidential Information except as required to comply with any
applicable legal or accounting record keeping requirement and (d)
Customer will remove from AboveNet's premises all Customer Equipment
and any of its other property on AboveNet premises within ten (10)
days of AboveNet's request (and only after Customer receives
authorization from AboveNet as provided in Section 2.3) and return the
Co-location Space to AboveNet in the same condition as it was prior to
Customer's installation. If Customer does not remove such property (or
cannot remove such property because of payments due to AboveNet)
within such ten (10) day period, then AboveNet may move any and all
such property to storage and charge Customer for the cost of such
removal and storage, without being liable for related damages. If
Customer does not pay all amounts due to AboveNet and remove such
property from AboveNet premises or storage within thirty (30) days of
such AboveNet request, AboveNet may liquidate the property in any
reasonable manner, without being liable for related damages.
170
16.6 SURVIVAL. The following provisions will survive any expiration or
termination of the Agreement: Sections 1.3, 1.4, 2 (until all Customer
Equipment is removed from the Co-location Space), 3, 4, 6, 8, 9.5-9.8,
10-13, 14 (for a period of three (3) years), 16.4-16.6, and 17.
17. MISCELLANEOUS PROVISIONS.
17.1 FORCE MAJEURE. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under this
Agreement, or for credits under Section 9, due to any cause beyond its
reasonable control, including act or 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.
17.2 NO LEASE. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property.
In particular, Customer acknowledges and agrees that Customer has not
been granted any real property interest in the Co-location Space or
other AboveNet premises, and Customer has no rights as a tenant or
otherwise under any real property or landlord/tenant laws,
regulations, or ordinances.
17.3 MARKETING. Customer agrees that AboveNet may refer to Customer by
trade name and trademark, and may briefly describe Customer's
Business, in AboveNet marketing materials and web site. Customer
hereby grants AboveNet a limited license to use any Customer trade
names and trademarks solely in connection with the rights granted to
AboveNet pursuant to this Section 17.3. All goodwill associated with
Customer's trade name and trademarks will inure solely to Customer.
Customer may display the slogan "Powered by AboveNet" together with
the AboveNet logo, or any other AboveNet trademark or service xxxx or
logo, on Customer's web sites or marketing literature only after
obtaining AboveNet's written approval on a case-by-case basis, and
provided that Customer abide by the AboveNet trademark guidelines and
such other guidelines as AboveNet may provide Customer. All goodwill
associated with AboveNet's trade name, trademarks, slogans and logos
will inure solely to AboveNet.
17.4 GOVERNMENT REGULATIONS. Customer will not 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.
17.5 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 to a party that acquires
substantially all of the assigning party's assets or a majority of its
stock as part of a corporate merger or acquisition. 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.
17.6 NOTICES. Any notice or communication required or permitted to be given
hereunder may be delivered personally, deposited with an overnight
courier, sent by confirmed facsimile, or mailed by registered or
certified mail, return receipt requested, postage prepaid, in each
case to the address of the receiving party first indicated above, or
at such other address as either party may provide to the other by
written notice. Such notice will be deemed to have been given as of
the date it is delivered, or five (5) days after mailed or sent,
whichever is earlier.
17.7 RELATIONSHIP OF PARTIES. AboveNet and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between
AboveNet and Customer. Neither AboveNet nor Customer will have the
power to bind the other or incur obligations on the other's behalf
without the other's prior written consent, except as otherwise
expressly provided herein.
17.8 CHOICE OF LAW AND ARBITRATION. This Agreement will be governed by and
construed in accordance with the laws of the State of California,
excluding its conflict of laws principles. Each party agrees to submit
any and all disputes concerning this Agreement, if not resolved
between the parties, to binding arbitration under one (1) neutral,
independent and impartial arbitrator in accordance with the Commercial
Rules of the American Arbitration Association ("AAA"); provided,
however, the arbitrator may not vary, modify or disregard any of the
provisions contained in this Section 17.8. The decision and any award
resulting from such arbitration shall be final and binding. The place
of arbitration will be at AboveNet's offices. The arbitrator is not
empowered to award damages in excess of compensatory damages and each
party hereby irrevocably waives any right to recover such damages with
respect to any dispute resolved by arbitration. Both parties shall
equally share the fees of the arbitrator. The language of arbitration
will be English; provided, however, that an interpreter may be
provided for any witness that requires an interpreter. The costs of
such interpretation will be borne by the party requesting the
interpreter. Any final decision or award from arbitration under this
Section 17.8 will be in writing and reasoned. The arbitrator may award
attorneys' fees to the prevailing party as determined by the
arbitrator with wide discretion considering both (i) which party
bettered its position most by the outcome of the arbitration, and (ii)
that the parties intended that all limitations on liability would be
171
enforced by the arbitrator. Except for attorney's fees as the
arbitrator may award as provided in the previous sentence, each will
bear their own costs and expenses that are reasonable and necessary
for participating in arbitration under this Section 17.8. As part of
any arbitration conducted under this Section 17.8, each party may: (i)
request from the other party documents and other materials relevant to
the dispute and likely to bear on the issues in such dispute, (ii)
conduct no more than five (5) oral depositions each of which will be
limited to a maximum of seven hours in testimony, and (iii) propound
to the other party no more than thirty (30) written interrogatories,
answers to which the other party will give under oath. All the dispute
resolution proceedings contemplated in this Section 17.8 will be as
confidential and private as permitted by law. The parties will not
disclose the existence, content or results of any proceedings
conducted in accordance with this Section 17.8, and materials
submitted in connection with such proceedings will not be admissible
in any other proceeding, provided however, that this confidentiality
provision will not prevent a petition to vacate or enforce an
arbitration award, and shall not bar disclosure required by law. The
parties agree that any decision or award resulting from proceedings in
accordance with this Section 17.8 shall have no preclusive effect in
any other matter involving third parties. All applicable statutes of
limitation and defenses based upon the passage of time will be tolled
while the procedures specified in this Section 17.8 are pending. The
parties will take such action, if any, required to effectuate such
tolling. The arbitration shall be governed by the United States
Arbitration Act and judgment upon the award rendered by the arbitrator
may be entered by any court having jurisdiction.
17.9 CHANGES PRIOR TO EXECUTION. Customer represents and warrants that it
made no changes to this Agreement prior to providing this Agreement to
AboveNet for its acceptance and execution, and that AboveNet alone
incorporated any and all changes negotiated between, and accepted by,
Customer and AboveNet into this Agreement or into an addendum executed
by both parties.
17.10 ENTIRE AGREEMENT. This Agreement, together with the Order Form and
AboveNet policies referred to in this Agreement represents the
complete agreement and understanding of the parties with respect to
the subject matter herein, and supersedes any other agreement or
understanding, written or oral. This Agreement may be modified only
through a written instrument signed by both parties. Both parties
represent and warrant that they have full corporate power and
authority to execute and deliver this Agreement and to perform their
obligations under this Agreement and that the person whose signature
appears above is duly authorized to enter into this Agreement on
behalf of the respective party. Should any terms of this Agreement be
declared void or unenforceable by any arbitrator or court of competent
jurisdiction, such terms will be amended to achieve as nearly as
possible the same economic effect as the original terms and the
remainder of this Agreement will remain in full force and effect. If a
conflict arises between Customer's purchase order terms and this
Agreement, this Agreement shall take precedence. In the case of
international, federal, state or local government orders, Customer's
purchase order must contain the following language: "Notwithstanding
any provisions to the contrary on the face of this purchase order,
attachments to this purchase order, or on the reverse side of this
purchase order, this purchase order is being used for administrative
purposes only, and this purchase order is placed under and subject
solely to the terms and conditions of the AboveNet Network Agreement
executed between Customer and AboveNet."
End of AboveNet Internet Services Agreement
172
