EXHIBIT 10.23
THIS MASTER SERVICES AGREEMENT (the "Agreement") between Exodus Communications,
Inc. ("Exodus") and Boston Communications Group, Inc. ("Customer") is made
effective as of date indicated below the Customer signature on the initial Order
Form submitted by Customer and accepted by Exodus.
1. OVERVIEW.
1.1 General. This Agreement states the terms and conditions by which Exodus
will deliver and Customer will receive any or all of the services provided by
Exodus, including facilities, bandwidth, managed services and professional
services. If Customer purchases any equipment from Exodus (as indicated in the
Order Form(s) described below), the terms and conditions by which Customer
purchases and Exodus sells such equipment are stated in Addendum A attached
hereto. Only this Section 1.1 and Addendum A shall apply to the purchase and
sale of equipment. The specific services and/or products to be provided
hereunder are identified in the Order Form(s) submitted by Customer and accepted
by Exodus and described in detail in the Specification Sheets and Statements of
Work attached to each Order Form. Each Order Form (with the attached
Specification Sheet(s) and Statement(s) of Work) submitted, accepted and
executed by both parties is hereby incorporated by reference into this
Agreement. This Agreement is intended to cover any and all Services ordered by
Customer and provided by Exodus. In the event that any terms set forth herein
apply specifically to a service not ordered by Customer, such terms shall not
apply to Customer.
1.2 Definitions.
(a) "Customer Area" means that portion(s) of the Internet Data Center(s)
made available to Customer for the placement of Customer Equipment and/or Exodus
Supplied Equipment and use of the Service(s).
(b) "Customer Equipment" means the Customer's computer hardware, not
including stored data, and other tangible equipment placed by Customer in the
Customer Area. The Customer Equipment shall be identified on Exodus' standard
customer equipment list completed and delivered by Customer to Exodus, as
amended in writing from time to time by Customer.
(c) "Customer Registration Form" means the list that contains the names
and contact information (e.g. pager, email and telephone numbers) of Customer
and the individuals authorized by Customer to enter the Internet Data Center(s)
and Customer Area, as delivered by Customer to Exodus and amended in writing
from time to time by Customer.
(d) "Customer Technology" means Customer's proprietary technology,
including Customer's Internet operations design, content, software tools,
hardware designs, algorithms, software (in source and object forms), user
interface designs, architecture, class libraries, objects and documentation
(both printed and electronic), know-how, trade secrets and any related
intellectual property rights throughout the world (whether owned by Customer or
licensed to Customer from a third party) and also including any derivatives,
improvements, enhancements or extensions of Customer Technology conceived,
reduced to practice, or developed during the term of this Agreement by Customer.
(e) "Exodus Supplied Equipment" means the computer hardware, software and
other tangible equipment and intangible computer code contained therein to be
provided by Exodus for use by Customer as set forth on the Order Form(s).
(f) "Exodus Technology" means Exodus' proprietary technology, including
Exodus Services, software tools, hardware designs, algorithms, software (in
source and object forms), user interface designs, architecture, class libraries,
objects and documentation (both printed and electronic), network designs,
know-how, trade secrets and any related intellectual property rights throughout
the world (whether owned by Exodus or licensed to Exodus from a third party) and
also including any derivatives, improvements, enhancements or extensions of
Exodus Technology conceived, reduced to practice, or developed during the term
of this Agreement by either party that are not uniquely applicable to Customer
or that have general applicability in the art.
(g) "Initial Term" means the minimum term for which Exodus will provide
the Service(s) to Customer, as indicated on the Order Form(s). Except as
otherwise expressly provided in this Agreement, Exodus is obligated to provide
and Customer is obligated to pay for each Service through its Initial Term and
any Renewal Term.
(h) "Internet Data Center(s)" means any of the facilities used by Exodus
provide the Service(s).
(i) "Professional Services" means any non-standard professional or
consulting service provided by Exodus to Customer as more fully described in a
Statement of Work.
(j) "Renewal Term" means any service term following the Initial Term, as
specified in Section 2.2.
(k) "Representatives" mean the individuals identified in writing on the
Customer Registration Form and authorized by Customer to enter the Internet Data
Center(s) and the Customer Area.
(l) "Rules and Regulations" means the Exodus general rules and
regulations governing Customer's use of Services, including, but not limited to,
online conduct, and the obligations of Customer and its Representatives in the
Internet Data Centers.
(m) "Service(s)" means the specific service(s) provided by Exodus as
described on the Order Form(s).
(n) "Service Commencement Date" means the date Exodus will begin
providing the Service(s) to Customer, as indicated in a Notice of Service
Commencement delivered by Exodus to Customer.
(o) "Service Level Warranty" is described and defined in Section 5.2
below.
(p) "Specification Sheet" means the detailed description for each
Service, other than Professional Services, ordered by Customer that is attached
to an Order Form(s).
(q) "Statement of Work" means the detailed description(s) of the
Professional Services attached to (an) Order Form(s).
(r) "Work" means any tangible deliverable provided by Exodus to Customer
as described in the Statement of Work for any Professional Service.
2. DELIVERY OF SERVICES; TERMS; FEES.
2.1 Delivery of Services.
(a) General. By submitting an Order Form, Customer agrees to take and pay
for, and, by accepting the Order Form, Exodus agrees to provide, the Service(s)
during the Initial Term and for any Renewal Term, as specified in paragraph
2.2(b) below.
(b) Delivery of Supplemental Services. The purpose of this provision is
to enable Exodus to provide Customer with certain limited services and equipment
needed by Customer on a "one-off" or emergency basis ("Supplemental Services")
where such services are not included within the scope of the Services as
described in the Specification Sheets and/or Statement of Work. Supplemental
Service may include, as an example, a request from Customer to Exodus via
telephone that Exodus immediately replace a problem Customer server with an
Exodus server for a temporary period of time. Exodus shall notify Customer of
the fees for any Supplemental Services requested by Customer and obtain
Customer's approval prior to providing such services. In the event Exodus
reasonably determines that Supplemental Services are required on an emergency
basis, Exodus may provide such services with the consent of Customer, thereafter
provide notice of the services to Customer and ▇▇▇▇ Customer a reasonable fee
(to be mutually agreed upon) for such services. Customer agrees to pay Exodus
the mutually agreed upon fees charged by Exodus for Supplemental Services.
Customer will be charged for Supplemental Services in the invoice issued the
month following delivery of the services. Exodus will use commercially
reasonable efforts to provide Supplemental Services, provided that Exodus has no
obligation to determine the need for or provide Supplemental Services. All
Supplemental Services provided pursuant to this paragraph 2.1(b) are provided in
accordance with Section 5.3 of this Agreement..
2.2 Term.
(a) Term Commencement. The term for each Service will commence on the
Service Commencement Date indicated in the Notice of Service Commencement
delivered by Exodus to Customer when Exodus begins providing each Service to
Customer.
(b) Renewal Term(s). Each Service will continue automatically for
additional terms equal to the Initial Term ("Renewal Term") unless Customer
notifies Exodus in writing at least thirty (30) days prior to the end of the
Initial Term or a Renewal Term, as applicable, that it has elected to terminate
such Service(s), in which case such Service shall terminate at the end of such
term. The termination of any Service will not affect Customer's obligations to
pay for other Service(s) unless such Service(s) coincide with the terminated
Service(s). Notwithstanding the foregoing, Exodus may change or increase the
prices it charges Customer for any Service at any time after the Initial Term,
provided however, Exodus shall not change or increase price(s) more than once
during any Renewal Term and the price increase or change shall not exceed ten
percent (10%). This paragraph 2.2(b) does not apply to Exodus Supplied Equipment
which is only provided for the Initial Term.
3. FEES AND PAYMENT TERMS.
3.1 Fees and Expenses. Customer will pay all fees due according to the prices
and terms listed in the Order Form(s). The prices listed in the Order Form(s)
will remain in effect during the Initial Term indicated in the Order Form(s) and
will continue thereafter, unless modified in accordance with Section 2.2.
Customer, with its prior approval, also agrees to reimburse Exodus for actual
out-of-pocket reasonable expenses incurred in providing Professional Services to
Customer.
3.2 Payment Terms. On the Service Commencement Date for each Service,
Customer will be billed the amount of all non-recurring charges indicated in the
Order Form and the monthly recurring charges for the first month of the term.
Monthly recurring charges for all other months will be billed in advance of the
provision of Services. All other charges for Services received and expenses
incurred for Professional Services during a month (e.g., bandwidth usage fees,
travel expenses) will be billed at the end of the month in which the Services
were provided. Payment for all fees is due net 30 days following receipt of each
Exodus invoice unless the invoice is disputed in good faith. All payments will
be made in the United States in U.S. dollars.
3.3 Late Payments. Any payment not received within forty-five (45) days of
the invoice date 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 Customer is habitually delinquent in its payments, Exodus may, upon
five (5) business days written notice to Customer, modify the payment terms to
require full payment before the provision of all Services and Exodus Supplied
Equipment or require other assurances to secure Customer's payment obligations
hereunder.
3.4 Taxes. All fees charged by Exodus for Services are exclusive of all taxes
and similar fees now in force or enacted in the future imposed on the
transaction and/or the delivery of Services, all of which Customer will be
responsible for and will pay in full, except for taxes based on Exodus' net
income.
4. CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY OWNERSHIP; LICENSE GRANTS.
4.1 Confidential Information.
(a) Nondisclosure of 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, and other information held in confidence by the other party
("Confidential Information"). Confidential Information will include all
information in tangible or intangible form that is marked or designated as
confidential or that, under the circumstances of its disclosure, should be
considered confidential. Confidential Information will also include, but not be
limited to, Exodus Technology, Customer Technology, and the terms and conditions
of this Agreement. 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,
or required to achieve the purposes of, 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 for the performance of this
Agreement, and provided that such persons agree to comply with the terms
hereof), any of the other party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such information, at
least as stringent as it takes to protect its own Confidential Information.
(b) 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. The receiving party may disclose Confidential Information
pursuant to the requirements of a governmental agency or by operation of law,
provided that it gives the disclosing party reasonable prior written notice
sufficient to permit the disclosing party to contest such disclosure.
4.2 Intellectual Property.
(a) Ownership. Except for the rights expressly granted herein and the
assignment expressly made in paragraph 4.4(a), this Agreement does not transfer
from Exodus to Customer any Exodus Technology, and all right, title and interest
in and to Exodus Technology will remain solely with Exodus. Except for the
rights expressly granted herein, this Agreement does not transfer from Customer
to Exodus any Customer Technology, and all right, title and interest in and to
Customer Technology will remain solely with Customer. Exodus and Customer each
agrees that it will not, directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or other trade secrets
from the other party.
(b) General Skills and Knowledge. Notwithstanding anything to the contrary
in this Agreement, Exodus will not be prohibited or enjoined at any time by
Customer from utilizing any skills or knowledge of a general nature acquired
during the course of providing the Services, including, information publicly
known or available or that could reasonably be acquired in similar work
performed for another customer of Exodus.
4.3 License Grants.
(a) By Exodus. Exodus hereby grants to Customer a nonexclusive,
royalty-free license, during the term of this Agreement, to use the Exodus
Technology solely for purposes of using the Service(s). Customer shall have no
right to use the Exodus Technology for any purpose other than using the
Service(s).
(b) By Customer. Customer agrees that if, in the course of performing the
Service(s), it is necessary for Exodus to access Customer Equipment and use
Customer Technology, Exodus is hereby granted and shall have a nonexclusive,
royalty-free license, during the term of this Agreement, to use the Customer
Technology solely for the purposes of delivering the Service(s) to Customer.
Exodus shall have no right to use the Customer Technology for any purpose other
than providing the Service(s).
4.4 Professional Services; Assignments and License.
(a) Assignment of Work. Effective at the time Exodus receives full and
final payment for the Professional Service, Exodus assigns to Customer all
right, title and interest, including all intellectual property rights, in the
Work, provided, however, that such assignment does not include the Exodus
Technology.
(b) License Grant. Commencing at the time Exodus receives full and final
payment for the Work, Exodus grants to Customer a non-exclusive,
non-transferable, royalty free, perpetual license to use the Exodus Technology
incorporated into the Work solely in connection with the use of the Work as a
whole. To the extent that Customer or its employees or contractors participate
in the creation or development of Exodus Technology, Customer, on behalf of
itself and its employees and contractors, hereby assigns to Exodus all right,
title and interest, including all intellectual property rights in, the Exodus
Technology.
5. EXODUS REPRESENTATIONS AND WARRANTIES.
5.1 General.
(a) Authority and Performance of Exodus. Exodus represents and warrants
that (i) it has the legal right to enter into this Agreement and perform its
obligations hereunder, and (ii) the performance of its obligations and delivery
of the Services to Customer will not violate any applicable U.S. laws or
regulations, including OSHA requirements, or cause a breach of any agreements
with any third parties. In the event of a breach of the warranties set forth in
this paragraph 5.1(a), Customer's sole remedy is termination pursuant to Section
10 of the Agreement.
(b) Year 2000 Performance Compliance. Exodus warrants that none of the
computer hardware and software systems and equipment incorporated into or
utilized in the delivery of the Services contains any date dependent routines or
logic which will fail to operate correctly after December 31, 1999, by reason of
such date dependence; provided, however, that no representation or warranty is
made as to the adequacy of any Customer or third party service provider hardware
or software used in connection with the Services. In the event of any breach of
the warranties under this paragraph 5.1(b), Customer's sole remedy is
termination pursuant to Section 10 of the Agreement.
5.2. Service Level Warranty. In the event that Customer experiences any of
the service performance issues defined in this Section 5.2 as a result of
Exodus' failure to provide bandwidth or facility services, Exodus will, upon
Customer's request in accordance with paragraph 5.2(d) below, credit Customer's
account as described below (the "Service ▇▇▇▇▇ ▇▇▇▇▇▇▇▇"). ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall not apply to any services other than bandwidth and facility
services, and, shall not apply to performance issues (i) caused by factors
outside of Exodus' reasonable control; (ii) that resulted from any actions or
inactions of Customer or any third parties; or (iii) that resulted from
Customer's equipment and/or third party equipment (supplied or rented by
Customer not within the sole control of Exodus at such time).
(a) Service Warranty Definitions. For purposes of this Agreement,
the following definitions shall apply only to
the Services (not including Professional Services).
(i) "Downtime" shall mean sustained packet loss in excess of
fifty percent (50%) within Exodus' U.S. network for fifteen (15) consecutive
minutes due to the failure of Exodus to provide Service(s) for such period.
Downtime shall not include any packet loss or network unavailability during
Exodus' scheduled maintenance of the Internet Data Centers, network and
Service(s), as described in the Rules and Regulations.
(ii) "Excess Latency" shall mean transmission latency in
excess of one hundred twenty (120) milliseconds round trip time between any two
points within Exodus' U.S. network.
(iii) "Excess Packet Loss" shall mean packet loss in excess
of one percent (1%) between any two points
within Exodus' U.S. network.
(iv) "Performance Problem" shall mean Excess Packet Loss
and/or Excess Latency.
(v) "Service Credit" shall mean an amount equal to the
pro-rata monthly recurring connectivity charges
(i.e., all monthly recurring bandwidth-related charges)
for one (1) day of Service.
(b) Downtime Periods. In the event Customer experiences Downtime,
Customer shall be eligible to receive from Exodus a Service Credit for each
Downtime period. Examples: If Customer experiences one Downtime period, it shall
be eligible to receive one Service Credit. If Customer experiences two Downtime
periods, either from a single event or multiple events, it shall be eligible to
receive two Service Credits.
(c) Performance Problem; Packet Loss and Latency. In the event that
Exodus discovers or is notified by Customer that Customer is experiencing a
Performance Problem, Exodus will take all actions necessary to determine the
source of the Performance Problem.
(i) Time to Discover Source of Performance Problem; Notification
of Customer. Exodus shall, within thirty (30) minutes of becoming aware of a
Performance Problem, notify Customer's authorized representative (as contained
in the Customer Registration Form or Run Book) by a phone call or email
indicating that a Performance Problem has occurred and giving a description of
such problem in reasonable detail to permit Customer to assess potential impact
to their operations. Within two (2) hours of discovering or receiving notice of
the Performance Problem, Exodus will determine whether the source of the
Performance Problem is limited to the Customer Equipment and the Exodus
equipment connecting the Customer Equipment to the Exodus LAN. If Exodus
determines that the Customer Equipment and Exodus connection are not the source
of the Performance Problem, Exodus will determine the source of the Performance
Problem within an additional two (2) hour period. In any event, Exodus will
notify Customer of the source of the Performance Problem within sixty (60)
minutes of identifying the source.
(ii) Remedy of Packet Loss and Latency. If the source of the
Performance Problem is within the sole control of Exodus, Exodus will remedy the
Performance Problem within two (2) hours of determining the source of the
Performance Problem. If the source of and remedy to the Performance Problem
reside outside of the Exodus LAN or WAN, Exodus will use commercially reasonable
efforts to notify the party(ies) responsible for the source of the Performance
Problem and cooperate with it (them) to resolve such problem as soon as
possible.
(iii) Failure to Determine Source and/or Remedy. In the event that
Exodus (A) is unable to determine the source of the Performance Problem within
the time periods described in subsection (i) above and/or; (B) is the sole
source of the Performance Problem and is unable to remedy such Performance
Problem within the time period described in subsection (ii) above, Exodus will
deliver a Service Credit to Customer for each two (2) hour period in excess of
the time periods for identification and resolution described above.
(d) Customer Must Request Service Credit. In order to receive any of the
Service Credits described in this Section 5.2, Customer must notify Exodus
within twenty (20) business days from the time Customer becomes eligible to
receive a Service Credit. Failure to comply with this requirement will forfeit
Customer's right to receive a Service Credit.
(e) Remedies Shall Not Be Cumulative; Maximum Service Credit. The
aggregate maximum number of Service Credits to be issued by Exodus to Customer
for any and all Downtime periods and Performance Problems that occur in a single
calendar month shall not exceed ten (10) Service Credits. A Service Credit shall
be issued in the Exodus invoice in the month following the Downtime or
Performance Problem, unless the Service Credit is due in Customer's final month
of Service. In such case, a refund for the dollar value of the Service Credit
will be mailed to Customer. Customer shall also be eligible to receive a
pro-rata refund for (i) Downtime periods and Performance Problems for which
Customer does not receive a Service Credit and (ii) any Services Exodus does not
deliver to Customer for which Customer has paid.
(f) Termination Option for Chronic Problems. Customer may terminate
this Agreement for cause and without penalty by notifying Exodus within five (5)
days following the end of a calendar month in the event either of the following
occurs: (i) Customer experiences more than ten (10) Downtime periods resulting
from three (3) or more nonconsecutive Downtime events during the calendar month;
or (ii) Customer experiences more than eight (8) consecutive hours of Downtime
due to any single event. Such termination will be effective not less than thirty
(30) days after receipt of such notice by Exodus or for a greater period as
agreed to by the parties.
(g) THE SERVICE LEVEL WARRANTY SET FORTH IN THIS SECTION 5.2 SHALL ONLY
APPLY TO THE BANDWIDTH AND FACILITIES SERVICE(S) PROVIDED BY EXODUS AND, DOES
NOT APPLY TO (I) ANY PROFESSIONAL SERVICES; (II) ANY SUPPLEMENTAL SERVICES; AND
(III) ANY SERVICE(S) THAT EXPRESSLY EXCLUDE THIS SERVICE LEVEL WARRANTY (AS
STATED IN THE SPECIFICATION SHEETS FOR SUCH SERVICES). THIS SECTION 5.2 STATES
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY EXODUS TO PROVIDE
SERVICE(S).
5.3 Service Performance Warranty.
(a) Exodus warrants that it will perform the Services in accordance
with their Specification Sheet(s) and in a manner consistent with industry
standards reasonably applicable to the performance thereof.
(b) Exodus will make reasonable commercial efforts to insure that any
software provided to the Customer by Exodus does not contain any Self-Help
Code or any Unauthorized Code (defined below). "Self-Help Code" means any
back door, "time bomb", drop dead device, or other software routine designed
to disable a computer program automatically with the passage of time or under
the positive control of a person other than a licensee of the program.
Self-Help Code does not include software routines in a computer program, if
any, designed to permit the licensor of the computer program (or other person
acting by authority of the licensor) to obtain access to a licensee's
computer system(s) (e.g., remote access via modem) for purposes of
maintenance or technical support. "Unauthorized Code" means any viruses,
Trojan horse, worm, or any other software routines or hardware components
designed to permit unauthorized access to disable, erase, or otherwise harm
software, hardware, or data or to perform any other such actions.
(c) Exodus further states that it maintains a master copy its
software, believed to free and clear from any Self-Help Code or Unauthorized
Code.
5.4 Selection of Exodus Supplied Equipment; Manufacturer Warranty. Customer
acknowledges that it has selected the Exodus Supplied Equipment and disclaims
any statements made by Exodus. Except with respect to any express warranties
for Service(s) related to Exodus Supplied Equipment, Customer acknowledges
and agrees that its use and possession of the Exodus Supplied Equipment by
Customer shall be subject to and controlled by the terms of any
manufacturer's or, if appropriate, supplier's warranty, and Customer agrees
to look solely to the manufacturer or, if appropriate, supplier with respect
to all mechanical, service and other claims, and the right to enforce all
warranties made by said manufacturer are hereby, to the extent Exodus has the
right, assigned to Customer solely for the Initial Term.
5.5 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS
SECTION 5, 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, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXODUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR
COMPLETELY SECURE.
5.6 Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM EXODUS'
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 OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT
CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH EXODUS
WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS
APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT SUCH
EVENTS WILL NOT OCCUR. ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY
RESULTING FROM OR RELATED TO SUCH EVENTS.
6. CUSTOMER OBLIGATIONS.
6.1 Warranties of Customer.
(a) General. Customer represents and warrants that (i) it 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 any Customer
Equipment as contemplated under this Agreement; (ii) the performance of its
obligations and use of the Services (by Customer, its customers and users) will
not violate any applicable laws, regulations or the Rules and Regulations or
cause a breach of any agreements with any third parties or unreasonably
interfere with other Exodus customers' use of Exodus services, and (iii) all
equipment, materials and other tangible items placed by Customer at Internet
Data Centers will be used in compliance with all applicable manufacturer
specifications.
(b) Breach of Warranties. In the event of any breach of any of the
foregoing warranties, in addition to any other remedies available at law or in
equity, Exodus will have the right, in its sole reasonable discretion, to
suspend immediately any related Services if deemed reasonably necessary by
Exodus to prevent any harm to Exodus and its business. Exodus will provide
notice and opportunity to cure if practicable depending on the nature of the
breach. Once cured, Exodus will promptly restore the Service(s).
6.2 Compliance with Law and Rules and Regulations. Customer agrees that it
will use the Service(s) only for lawful purposes and in accordance with this
Agreement. Customer will comply at all times with all applicable laws and
regulations and the Rules and Regulations, as updated by Exodus from time to
time. The Rules and Regulations are incorporated herein and made a part hereof
by this reference. Exodus may change the Rules and Regulations upon fifteen (15)
days' written notice to Customer. Exodus will also post such new Rules and
Regulations at the Exodus Web site ▇▇▇.▇▇▇▇▇▇.▇▇▇. Upon receipt of written
notice, Customer shall have thirty (30) days to object in writing to the revised
Rules and Regulations. In the event Customer objects, Customer shall continue to
be governed under the previuosly agreed to Rules and Regulations. If Exodus does
not receive written objection within such thirty-day period, Customr shall be
deemed to have accepted the revised Rules and Regaultions. Customer agrees that
it has received, read and understands the current version of the Rules and
Regulations. The Rules and Regulations contain restrictions on Customer's and
Customer's users' online conduct (including prohibitions against unsolicited
commercial email) and contain financial penalties for violations of such
restrictions. Customer agrees to comply with such restrictions and, in the event
of a failure to comply, Customer agrees to pay the financial penalties in
accordance with the Rules and Regulations. Customer acknowledges that Exodus
exercises no control whatsoever over the content of the information passing
through Customer's site(s) and that it is the sole responsibility of Customer to
ensure that the information it and its users transmit and receive complies with
all applicable laws and regulations and the Rules and Regulations.
6.3 Access and Security. Except with the advanced written consent of Exodus,
Customer's access to the Internet Data Centers will be limited solely to the
Representatives. Representatives may only access the Customer Area and are
prohibited from accessing other areas of the Internet Data Center(s) unless
accompanied by an authorized Exodus representative.
6.4 Restrictions on Use of Services. Customer shall not, without the prior
written consent of Exodus (which may be withheld in its sole discretion), resell
the Services to any third parties or connect Customer Equipment directly to
anything other than the Exodus network, equipment and facilities.
6.5 Relocation of Customer Equipment. In the event that it becomes necessary
to relocate the Customer Equipment to another Customer Area within its Internet
Data Center operated by Exodus, Customer will cooperate in good faith with
Exodus to facilitate such relocation, provided that such relocation is based on
reasonable business needs of Exodus (including the needs of other Exodus
customers), the expansion of the space requirements of Customer or otherwise.
Exodus shall be solely responsible for any costs and expenses incurred by Exodus
in connection with any such relocation and will use commercially reasonable
efforts, in cooperation with Customer, to minimize and avoid any interruption to
the Services. Exodus shall be responsible for damage to customer equipment as
contained in Section 8.2. and any downtime experienced will be credited in
accordance with Section 5.2. Exodus shall not relocate Customer Equipment
without the prior written consent of the Customer, which shall not be
unreasonably withheld.
6.6 Exodus Supplied Equipment.
(a) Delivery and Term. On or prior to the Service Commencement Date,
Exodus shall deliver to Customer, at the designated Customer Area, the Exodus
Supplied Equipment. Customer shall have the right to use the Exodus Supplied
Equipment for the Initial Term set forth in the Order Form and any additional
period agreed to in writing by Exodus. Customer shall not remove any Exodus
Supplied Equipment from the Customer Area(s) without the prior written consent
of Exodus.
(b) Title. The Exodus Supplied Equipment shall always remain the personal
property of Exodus. Customer shall have no right or interest in or to the Exodus
Supplied Equipment except as provided in this Agreement and the applicable Order
Form and shall hold the Exodus Supplied Equipment subject and subordinate to the
rights of Exodus. Customer agrees to execute UCC financing statements as and
when requested by Exodus and hereby appoints Exodus as its attorney-in-fact to
execute such financing statements on behalf of Customer. Customer will, at its
own expense, keep the Exodus Supplied Equipment free and clear from any liens or
encumbrances of any kind (except any caused by Exodus) and will indemnify and
hold Exodus harmless from and against any loss or expense caused by Customer's
failure to do so. Customer shall give Exodus immediate written notice of any
attachment or judicial process affecting the Exodus Supplied Equipment or
Exodus' ownership. Customer will not remove, alter or destroy any labels on the
Exodus Supplied Equipment stating that it is the property of Exodus and shall
allow the inspection of the Exodus Supplied Equipment at any time, provided such
inspection does not interrupt any Services delivered or provided to Customer by
Exodus under this Agreement.
(c) Use, Maintenance and Repair. Customer will, at its own expense, keep
the Exodus Supplied Equipment in good repair, appearance and condition, other
than normal wear and tear, and, if not included in the Services, shall obtain,
pay for and keep in effect through the Initial Term a hardware and software
maintenance agreement with the manufacturer or other party acceptable to Exodus.
All parts furnished in connection with such repair and maintenance shall be
manufacturer authorized parts and shall immediately become components of the
Exodus Supplied Equipment and the property of Exodus. Customer shall use the
Exodus Supplied Equipment in compliance with the manufacturer's or supplier's
suggested guidelines.
(d) Upgrades and Additions. Customer may affix or install any
accessory, addition, upgrade, equipment or device on to the Exodus Supplied
Equipment (other than electronic data) ("Additions") provided that such
Additions (i) can be removed without causing material damage to the Exodus
Supplied Equipment; (ii) do not reduce the value of the Exodus Supplied
Equipment and (iii) are obtained from or approved in writing by Exodus and are
not subject to the interest of any third party other than Exodus. Any other
Additions may not be installed without Exodus' prior written consent. At the end
of the Initial Term of this Agreement, Customer shall remove any Additions which
(i) were not provided by Exodus and (ii) are readily removable without causing
material damage or impairment of the intended function, use, or value of the
Exodus Supplied Equipment, and restore the Exodus Supplied Equipment to its
original configuration. Any Additions, which are not so removable, will become
the property of Exodus (lien free).
7. INSURANCE.
7.1 Exodus Minimum Levels. Exodus agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers' compensation insurance in an amount not less
than that required by applicable law. Exodus agrees that it will ensure and be
solely responsible for ensuring that its contractors and subcontractors maintain
insurance coverage at levels no less than those required by applicable law and
customary in Exodus' and its agents' industries.
7.2 Customer Minimum Levels. In order to provide customers with physical
access to facilities operated by Exodus and equipment owned by third parties,
Exodus is required by its insurers to ensure that each Exodus customer maintains
adequate insurance coverage. Customer agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers compensation insurance in an amount not less
than that required by applicable law. Customer agrees that it will ensure and be
solely responsible for ensuring that its agents (including contractors and
subcontractors) maintain insurance coverage at levels no less than those
required by applicable law and customary in Customer's and its agents'
industries.
7.3 Certificates of Insurance; Naming Exodus as an Additional Insured. Prior
to installation of any Customer Equipment in the Customer Area, Customer will
(i) deliver to Exodus certificates of insurance which evidence the minimum
levels of insurance set forth above; and (ii) cause its insurance provider(s) to
name Exodus as an additional insured and notify Exodus in writing of the
effective date thereof.
8. LIMITATIONS OF LIABILITY.
8.1 Personal Injury. EACH REPRESENTATIVE AND ANY OTHER PERSON VISITING AN
INTERNET DATA CENTER DOES SO AT ITS OWN RISK. EXODUS ASSUMES NO LIABILITY
WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF EXODUS.
8.2 Damage to Customer Equipment. EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE
TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN THE
NEGLIGENCE OR WILLFUL MISCONDUCT OF EXODUS. TO THE EXTENT EXODUS IS LIABLE FOR
ANY DAMAGE TO, OR LOSS OF, CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY
WILL BE LIMITED SOLELY TO THE THEN-CURRENT REPLACEMENT VALUE OF THE CUSTOMER
EQUIPMENT, EXCLUDING LOST DATA, SOFTWARE AND FIRMWARE.
8.3. CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR A BREACH OF SECTION 4.1
("CONFIDENTIAL INFORMATION") AND SECTION 9.1 ("INDEMNIFICATION") OF THIS
AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER
FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS,
LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF
USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE.
8.4. Basis of the Bargain; Failure of Essential Purpose. The parties
acknowledge 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 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 found to have failed of their essential purpose.
9. INDEMNIFICATION.
9.1. Indemnification. Each party will indemnify, defend and hold the other
harmless from and against any and all costs, liabilities, losses, and expenses
(including, but not limited to, reasonable attorneys' fees) (collectively,
"Losses") resulting from any claim, suit, action, or proceeding (each, an
"Action") brought by any third party against the other or its affiliates
alleging (i) the infringement or misappropriation of any intellectual property
right relating to the delivery or use of the Service(s) by intellectual property
of the indemnifying party (but excluding any infringement contributorily caused
by the other party); (ii) personal injury caused by the negligence or willful
misconduct of the other party; and (iii) any violation of or failure to comply
with the Rules and Regulations. Customer will indemnify, defend and hold Exodus,
its affiliates and customers harmless from and against any and all Losses
resulting from or arising out of any Action brought against Exodus, its
affiliates or customers alleging any damage or destruction to the Customer Area,
the Internet Data Centers, Exodus equipment or other customer equipment caused
by Customer, its Representative(s) or designees.
9.2 Notice. Each party's indemnification obligations hereunder shall be
subject to (i) receiving prompt written notice of the existence of any Action;
(ii) being able to, at its option, control the defense of such Action; (iii)
permitting the indemnified party to participate in the defense of any Action;
and (iv) receiving full cooperation of the indemnified party in the defense
thereof.
10. TERMINATION.
10.1. Termination For Cause. Either party may terminate this Agreement if:
(i) the other party breaches any material 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 must be
cured within five (5) business days after receipt of written notice from Exodus
unless invoice is disputed in good faith; (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. Customer may also terminate this Agreement in accordance with
the terms set forth in paragraph 5.2(f) ("Termination Option For Chronic
Problems") of this Agreement.
10.2 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of any
Service or this Agreement in accordance with its terms.
10.3. Effect of Termination. Upon the effective date of termination of this
Agreement:
(a) Exodus will immediately cease providing the Service(s);
(b) any and all payment obligations of Customer under this Agreement for
Service(s) provided through the date of termination will immediately become due;
unless invoice is disputed in good faith.
(c) within thirty (30) days of such termination, each party will return all
Confidential Information of the other party in its possession 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) within twenty (20) days of such termination Customer shall (i) remove
from the Internet Data Centers all Customer Equipment (excluding any Exodus
Supplied Equipment) and any other Customer property; (ii) deliver or make
available all Exodus Supplied Equipment to an authorized representative of
Exodus, and (iii) return the Customer Area to Exodus in the same condition as it
was on the Service Commencement Date for the Customer Area, normal wear and tear
excepted. If Customer does not remove the Customer Equipment and its other
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) liquidate the property in any reasonable
manner.
10.4. Customer Equipment as Security. In the event that Customer fails to pay
Exodus all undisputed amounts owed Exodus under this Agreement when due,
Customer agrees that, upon delivery of written notice to Customer, Exodus may
(i) restrict Customer's physical access to the Customer Area and Equipment;
and/or (ii) take possession of any Customer Equipment and store it, at
Customer's expense, until taken in full or partial satisfaction of any lien or
judgment, all without being liable to prosecution or for damages.
10.5 Termination Schedule. In the event of a termination of this Agreement
pursuant to the terms herein, Exodus and the Customer shall work together to
mutually arrive at a date by which Customer shall no longer receive the Services
and further, shall remove its equipment from the Exodus IDC. The term of this
Termination period shall not exceed six (6) months without prior written
approval of the parties. During this period Exodus shall continue to provide the
Services and Customer shall continue to pay for such Services in accordance with
Section 3.0 of this Agreement.
In addition, Customer may require additional support by Exodus to assist
Customer's in its successful transition from the Exodus IDC. Exodus shall
provide such reasonable additional support to Customer and Customer shall pay
Exodus for such additonal resources at the perrsonnel rates Exodus generally
charges the Customer. Any such additional support shall be deemed to be Services
as defined in this Agreement.
10.6. Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 3.3,3.4, 4.1, 4.2, 4.4, 5.5,
6.6(d), 8, 9, 10 and 11 (excluding 11.2 and 11.3).
11. MISCELLANEOUS PROVISIONS.
11.1 Force Majeure. 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 acts of war, acts of God, earthquake, flood, embargo, riot,
sabotage, labor shortage or dispute, governmental act or failure of the Internet
(not resulting from the actions or inactions of Exodus), provided that the
delayed party: (a) gives the other party prompt notice of such cause, and (b)
uses its reasonable commercial efforts to promptly correct such failure or delay
in performance. If Exodus is unable to provide Service(s) for a period of thirty
(30) consecutive days as a result of a continuing force majeure event, Customer
may cancel the Service(s) and terminate the Agreement.
11.2 No Lease; Agreement Subordinate to Master Lease. This Agreement is a
services agreement and is not intended to and will not constitute a lease of any
real property. Customer acknowledges and agrees that (i) it has been granted
only a license to occupy the Customer Area and use the Internet Data Centers and
any equipment provided by Exodus in accordance with this Agreement; (ii)
Customer has not been granted any real property interest in the Customer Area or
Internet Data Centers; (iii) Customer has no rights as a tenant or otherwise
under any real property or landlord/tenant laws, regulations, or ordinances;
(iv) this Agreement, to the extent it involves the use of space leased by
Exodus, shall be subordinate to any lease between Exodus and its landlord(s);
and (v) the expiration or termination of any such lease shall terminate this
Agreement as to such property subject to Customer retaining any rights or claims
it may have against Exodus arising from the expiration or termination of such
lease. Customer hereby waives and releases any claims or rights to make a claim
that it may have against the landlord(s) under any lease by Exodus with respect
to any equipment or property of Customers' located in the premises demised to
Exodus by such landlord(s).
11.3 Marketing. Customer agrees that during the term of this Agreement Exodus
may publicly refer to Customer, orally and in writing, as a Customer of Exodus.
Any other reference to Customer by Exodus requires the written consent of
Customer.
11.4 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.
11.5. Non-Solicitation. During the Term of this Agreement and continuing
through the first anniversary of the termination of this Agreement, Customer and
Exodus agree that they will not, and will ensure that its affiliates do not,
directly or indirectly, solicit or attempt to solicit for employment any persons
employed by the other party or contracted by the other party.
11.6. No Third Party Beneficiaries. Exodus and Customer agree that, except as
otherwise expressly provided in this Agreement, there shall be no third party
beneficiaries to this Agreement, including but not limited to the insurance
providers for either party or the customers of Customer.
11.7. Governing Law; Dispute Resolution. This Agreement is made under and
will be governed by and construed in accordance with the laws of the State of
California (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. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences, or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim, or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, shall finally be settled by arbitration in accordance with the
Arbitration Rules (and if Customer is a non-U.S. entity, the International
Arbitration Rules) of the American Arbitration Association ("AAA"). There will
be three (3) arbitrators (the "Arbitration Tribunal"), the first of which will
be appointed by the claimant in its notice of arbitration, the second of which
will be appointed by the respondent within thirty (30) days of the appointment
of the first arbitrator and the third of which will be jointly appointed by the
party-appointed arbitrators within thirty (30) days thereafter. The language of
the arbitration shall be English. The Arbitration Tribunal will not have the
authority to award punitive damages to either party. Each party shall bear its
own expenses, but the parties will share equally the expenses of the Arbitration
Tribunal and the AAA. This Agreement will be enforceable, and any arbitration
award will be final, and judgment thereon may be entered in any court of
competent jurisdiction. The arbitration will be held in San Francisco,
California, USA or Boston Massachusetts. Notwithstanding the foregoing, claims
for injunctive relief, other pre-judgment remedies, and claims for Customer's
failure to pay for Services in accordance with this Agreement may be brought in
a state or federal court in the United States with jurisdiction over the subject
matter and parties.
11.8. Severability; Waiver. 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. 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.
11.9. Assignment. Both Parties may assign this Agreement in whole as part of
a corporate reorganization, consolidation, merger, or sale of substantially all
of its stock or assets. The Parties may not otherwise assign its rights or
delegate its duties under this Agreement either in whole or in part without the
prior written consent ofthe other Party (which may not be unreasonably
withheld), and any attempted assignment or delegation without such consent will
be void. Exodus also may delegate the performance of certain Services to third
parties, including Exodus' wholly owned subsidiaries, provided Exodus controls
the delivery of such Services to Customer and remains responsible to Customer
for the delivery of such Services. This Agreement will bind and inure to the
benefit of each party's successors and permitted assigns.
11.10 Notice. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by
email, confirmed facsimile, or mailed by registered or certified mail, return
receipt requested, postage prepaid, in each case to the address of the receiving
party as listed on the Order Form or at such other address as may hereafter be
furnished in writing by either party to the other party. Such notice will be
deemed to have been given as of the date it is delivered, mailed, emailed, faxed
or sent, whichever is earlier.
11.11. 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 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.
11.12. Entire Agreement; Counterparts; Originals. This Agreement, including
all documents incorporated herein by 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. Any additional or different terms in any purchase
order or other response by Customer shall be deemed objected to by Exodus
without need of further notice of objection, and shall be of no effect or in any
way binding upon Exodus. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument. Once signed, any
reproduction of this Agreement made by reliable means (e.g., photocopy,
facsimile) is considered an original. This Agreement may be changed only by a
written document signed by authorized representatives of Exodus and Customer in
accordance with this Section 11.12. For purposes of this Agreement, the term
"written" means anything reduced to a tangible form by a party, including a
printed or hand written document, e-mail or other electronic format.
11.13 Interpretation of Conflicting Terms. In the event of a conflict between
or among the terms in this Agreement, the Order Form(s), the Specification
Sheet(s), the Statement(s) of Work, and any other document made a part hereof,
the documents shall control in the following order: the Order Form with the
latest date, the Statement of Work, Specification Sheets, the Agreement and
other documents.
Authorized representatives of Customer and Exodus have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
Signature: _____/s/ ▇▇▇▇▇▇▇ Wessman_____ Signature: ____/s/ ▇▇▇▇ Rapine_
Print Name: ___William Wessman____ Print Name: ____ ▇▇▇▇ ▇▇▇▇▇▇
Title: ___Executive Vice President, Title: Contract Negotiator_
Date: ____11/28/00___ Date: _____12/4/00_________
This Agreement incorporates the following documents:
o Order Form(s)
Specification Sheet(s)
Statement(s) Of Work (if applicable)
o Registration Form
o Addendum A - Equipment Purchase Terms and Conditions (if applicable)
ADDENDUM A
EQUIPMENT PURCHASE TERMS AND CONDITIONS
1. SHIPPING AND HANDLING. ALL EQUIPMENT PURCHASED BY CUSTOMER
(THE "EQUIPMENT") IS PROVIDED FOB VENDOR
FACILITY. SHIPMENT WILL BE MADE AS SPECIFIED BY CUSTOMER AND CUSTOMER IS SOLELY
RESPONSIBLE FOR ALL EXPENSES IN CONNECTION WITH THE DELIVERY OF THE EQUIPMENT.
THE EQUIPMENT WILL BE DEEMED ACCEPTED BY CUSTOMER UPON SHIPMENT.
2. PURCHASE PRICE AND TAXES. Customer shall pay to Exodus the purchase
price set forth in the applicable Order Form ("Purchase Price") for each item of
Equipment. Customer hereby grants and Exodus reserves a purchase money security
interest in the Equipment and the proceeds thereof as a security for its
obligations hereunder until payment of the full Purchase Price to Exodus. The
Purchase Price is due and payable within thirty (30) days of shipment of the
Equipment. Customer shall pay all taxes and other governmental charges assessed
in connection with the sale, use or possession of the Equipment including,
without limitation, any and all sales and/or use taxes and personal property
taxes (other than taxes on Exodus' net income).
3. TITLE. Customer shall acquire title to the Equipment upon full
payment of the purchase price(s) set forth herein. Notwithstanding the
foregoing, Exodus and any licensor of rights to Exodus shall retain title to and
rights in the intellectual property (whether or not subject to patent or
copyright) and content contained in the materials supplied under the terms of
this Agreement.
4. SELECTION OF EQUIPMENT; MANUFACTURER WARRANTY. Customer acknowledges
that is has selected the Equipment and disclaims any statements made
by Exodus. Customer acknowledges and agrees that use and possession of
the Equipment by Customer shall be subject to and controlled by the
terms of any manufacturer's or, if appropriate, supplier's warranty,
and Customer agrees to look solely to the manufacturer or, if
appropriate, supplier with respect to all mechanical, service and
other claims, and the right to enforce all warranties made by said
manufacturer are hereby, to the extent Exodus has the right, assigned
to Customer. THE FOREGOING WARRANTY IS THE EXCLUSIVE WARRANTY AND IS
IN LIEU OF ANY ORAL REPRESENTATION AND ALL OTHER WARRANTIES AND
DAMAGES, WHETHER EXPRESSED, IMPLIED OR STATUTORY. EXODUS HAS NOT MADE
NOR DOES MAKE ANY OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, OR OF NONINFRINGEMENT OF THIRD PARTY RIGHTS
AND AS TO EXODUS AND ITS ASSIGNEES, CUSTOMER PURCHASES THE EQUIPMENT
"AS IS".
5. LIMITATION OF LIABILITY. Exodus' entire liability for any damages
which may arise hereunder, for any cause whatsoever, and regardless
of the form of action, whether in contract or in tort, including
Exodus' negligence, or otherwise, shall be limited to the Purchase
Price paid by Customer for the Equipment. IN NO EVENT WILL EXODUS BE
LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, OR FOR ANY LOSS OF BUSINESS OR PROSPECTIVE BUSINESS
OPPORTUNITIES, PROFITS, SAVINGS, INFORMATION, USE OR OTHER COMMERCIAL
OR ECONOMIC LOSS, EVEN IF EXODUS HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
6. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement is made under and
will be governed by and construed in accordance with the laws of the State of
California (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. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences, or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim, or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, the parties to this Agreement hereby consent to jurisdiction and
venue in the courts of the state of California and in the U.S. District Courts
in the City of San Francisco, California.
7. MISCELLANEOUS. THE ABOVE TERMS AND CONDITIONS ARE THE ONLY TERMS
AND CONDITIONS UPON WHICH EXODUS IS WILLING TO SELL THE EQUIPMENT
AND SUPERSEDE ALL PREVIOUS AGREEMENTS, PROMISES OR REPRESENTATIONS,
ORAL OR WRITTEN.