Exhibit 10.32
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EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
THIS INTERNET DATA CENTER SERVICES AGREEMENT (this "Agreement") is made
effective as of the Submission Date (June 30, 1998) indicated in the initial
Internet Data Center Services Order Form accepted by Exodus, by and between
Exodus Communications, Inc. ("Exodus") and the customer identified below
("Customer").
PARTIES:
CUSTOMER NAME: SWITCHBOARD
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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PHONE: ▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
EXODUS COMMUNICATIONS, INC.
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
1. INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement during the term of
this Agreement, Exodus will provide to Customer the services described in the
Internet Data Center Services Order Form(s) ("IDC Services Order Form(s)")
accepted by Exodus ("Internet Data Center Services"). All IDC Services Order
Forms accepted by Exodus are incorporated herein by this reference, each as of
the Submission Date indicated in such form. The initial IDC Services Order Form
is set forth in Exhibit A. The parties hereby agree that the service
descriptions attached hereto as Exhibit B are hereby incorporated into the
initial IDC Services Form and thereby, into this Agreement. During the term of
this Agreement, Exodus shall provide support services in accordance with Exhibit
C. Exodus may modify its support procedures and Internet Data Center Services
during the term of this Agreement, provided that such changes do not materially
diminish the benefits afforded to Customer pursuant to Exhibit C.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services, other
than Setup Fees, indicated in the initial IDC Services Order Form shall commence
on the earlier to occur of (i) the "Installation Date" indicated in the initial
IDC Services Order Form, regardless of whether Customer has commenced use of the
Internet Data Center Services, unless Customer is unable to install the Customer
Equipment and/or use the applicable Internet Data Center Services by the
Installation Date due to the fault of Exodus, then billing will not begin until
the date Exodus has remedied such fault and (ii) the date the "Customer
Equipment" (Customer's computer hardware and other tangible equipment, as
identified in the Customer Equipment List which is incorporated herein by this
reference) is placed by Customer in the "Customer Area" (the portion(s) of the
Internet Data Centers, as defined in Section 3.1 below, made available to
Customer hereunder for the placement of Customer Equipment) and is operational.
All Setup Fees will be billed upon receipt of a Customer signed IDC Services
Order Form. In the event that Customer orders additional Internet Data Center
Services, billing for such services shall commence on the date Exodus first
provides such additional Internet Data Center Services to Customer or as
otherwise agreed to by Customer and Exodus.
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2.3 Billing and Payment Terms. Customer will be billed monthly in advance
of the provision of Internet Data Center Services, and payment of such fees will
be due within thirty (30) days of the date of each Exodus invoice provided that
Exodus has performed the billed Services. All payments will be made in U.S.
dollars. Late payments hereunder, other than amounts which are the subject of a
good faith dispute between the parties, 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.
2.4 Taxes. All payments required by this Agreement are exclusive of all
national, state, municipal or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding taxes and
obligations and other levies now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, except for taxes based on
Exodus' net income.
3. CUSTOMER'S OBLIGATIONS.
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and regulations and
Exodus' general rules and regulations relating to its provision of Internet Data
Center Services, as updated by Exodus from time to time ("Rules and
Regulations") attached hereto as Exhibit E. Exodus will provide Customer with
prior notice of any changes to the Rules and Regulations. If Customer does not
agree to the modified Rules and Regulations, it may refuse to accept such
revised Rules and Regulations, in which case, Customer will not be subject to
such revisions. Customer acknowledges that Exodus exercises no control
whatsoever over the content of the information passing through its sites
containing the Customer Area and equipment and facilities used by Exodus to
provide Internet Data Center Services ("Internet Data Centers"), and that it is
the sole responsibility of Customer to ensure that the information it transmits
and receives complies with all applicable laws and regulations.
3.2 Customer's Costs. Customer agrees that it will be solely responsible,
and at Exodus's request will reimburse Exodus, for all costs and expenses (other
than those included as part of the Internet Data Center Services and except as
otherwise expressly provided herein) it incurs at Customer's specific request
provided Customer is advised that there is a charge associated with such
request. Any costs and expenses in excess of $500 per occurrence require prior
written consent by an authorized management Representative of Customer.
3.3 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 individuals identified and authorized by Customer to have access to the
Internet Data Centers and the Customer Area in accordance with this Agreement,
as identified in the Customer Registration Form, as amended from time to time by
Customer, which is hereby incorporated by this reference ("Representatives").
3.4 No Competitive Services. Customer may not at any time resell any
Internet Data Center Services, without Exodus' prior written consent. The
foregoing shall not preclude Customer from hosting on Customer Equipment web
pages or applications which are Customer-branded, co-branded, or third-party
branded, or from serving any content whatsoever through Customer Equipment to
third party web sites or applications. Notwithstanding the foregoing, Customer's
customers may not have physical access to Exodus' Internet Data Center(s) except
as otherwise provided herein.
3.5 Insurance.
(a) Minimum Levels. Each party will keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $5 million per occurrence for bodily injury and
property damage; (ii) employer's liability insurance in an amount not less than
$1 million per occurrence; and (iii) workers' compensation insurance in an
amount not less than that required by applicable law. Each party also agrees
that it will be solely responsible for ensuring that its agents (including
contractors and subcontractors) having access to the Internet Data Center in
which Customer Area is located, maintain insurance at levels no less than those
required by applicable law and customary in such agents' industries. Each party
agrees to notify the other party should the insurance levels of either party go
below the levels stated above or lapses or cancellation of coverages.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, each party will furnish the other party with
certificates of insurance which evidence the minimum levels of insurance set
forth above.
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(c) Intentionally Deleted.
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information. Each party acknowledges that it will have
access to certain confidential information of the other party concerning the
other party's past, current or future business, plans, customers, business
partners, suppliers, personnel, software, hardware services, technology, and
products, including the terms and conditions of this Agreement ("Confidential
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 person (except as required by law) any of
the other party's Confidential Information, provided that the recipient party
hereunder may disclose such Confidential Information on a need-to-know basis for
the purpose of carrying out this Agreement or complying with such recipient
party's corporate fiduciary obligations, to its employees, directors or legal or
financial advisors, who are under a duty not to use or disclose the information,
other than for the purposes specifically permitted hereunder. The party
receiving the Confidential Information will use at least the same standard of
care it uses to protect the confidentiality of its own such information, which
shall in no event be less than a reasonable standard of care.
4.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party without resort to the other party's Confidential
Information.
5. REPRESENTATIONS, DISCLAIMERS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment. Customer represents and warrants that it owns
or has the legal right and authority, and will continue to own or maintain the
legal right and authority during the term, of this Agreement, to place and use
the Customer Equipment as contemplated by this Agreement. Customer further
represents and warrants that its placement, arrangement, and use of the Customer
Equipment in the Internet Data Centers complies with the Customer Equipment
Manufacturer's environmental and other specifications.
(b) Customer's Business. Customer represents and warrants that
Customer's services, products, materials, data, information and Customer
Equipment, used by Customer in connection with this Agreement as well as
Customer's and its permitted customers' and users' use of the Internet Data
Center Services ( (collectively, "Customer's Business") does not as of the
Installation Date, and will not during the term of this Agreement operate in any
manner that would violate any applicable law or regulation.
(c) Rules and Regulations. Customer has read the Rules and
Regulations and represents and warrants that Customer and Customer's Business
are currently in full compliance with the Rules and Regulations, and will remain
so at all times during the term of Agreement.
(d) Breach of Warranties. Intentionally Deleted.
(e) EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN SUBSECTIONS (a),
(b), and (c) ABOVE, CUSTOMER 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.
5.2 Warranties and Disclaimers by Exodus.
(a) Service Level Warranty. In the event Customer experiences any of
the following due to causes which are attributable to Exodus or Exodus Third
Parties, and not as a result of any actions of Customer (including Customer
Equipment) or third parties other than Exodus Third Parties, Exodus will, upon
Customer's request in accordance with paragraph (iii) below, credit Customer's
account as described below. For
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Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(b) the purposes of this Agreement, "Exodus Third Parties" shall mean
third parties from which Exodus procured services or equipment in the delivery
of the Internet Data Center Services.
(i) Inability to Access the Internet (Downtime). If Customer is
unable to transmit and receive information from Exodus' Internet Data Centers
(i.e., Exodus' LAN and WAN) to other portions of the Internet for more than
[**]due to causes which are attributable to Exodus or Exodus Third Parties
(excluding causes attributable to Customer or other third parties, other than
Exodus Third Parties, Exodus will credit Customer's account the pro-rata total
service charges for [**] of service. If such event continues for an additional
[**], Exodus will credit Customer's account the pro-rata total service charges
for [**] of service, and for each additional [**] of service, up to an aggregate
maximum credit of total service charges for [**] of service in any [**]. Exodus'
scheduled maintenance of the Internet Data Centers and Internet Data Center
Services shall not be deemed to be an event for which a remedy is available
pursuant to this Section 5.2(a)(i). For purposes of the foregoing, unable to
transmit and receive" shall mean sustained packet loss averaging in excess of
[**] over such [**] or [**] period, as applicable, based on Exodus'
measurements. Exodus will, upon Customer's request provide Customer with
evidence of measurements reasonably acceptable to Customer to demonstrate the
existence and amount of any packet loss incurred by Customer and caused by
Exodus or Exodus Third Parties.
(ii) Packet Loss and Latency. Exodus does not proactively
monitor the packet loss or transmission latency of specific customers. Exodus
does, however, proactively monitor the aggregate packet loss and transmission
latency within its LAN and WAN. In the event that Exodus discovers (either from
its own efforts or after being notified by Customer) that Customer is
experiencing packet loss in excess of [**] percent ([**]) ("Excess Packet Loss")
or transmission latency in excess of [**] round trip time (based on Exodus' good
faith measurements) between any two Internet Data Centers within Exodus' U.S.
network (collectively, "Excess Latency", and with Excess Packet Loss "Excess
Packet Loss Latency"), and in the case where Customer discovers such condition,
Customer notifies Exodus, Exodus will take all actions necessary to determine
the source of the Excess Packet Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss/Latency;
Notification of Customer. Within [**] of discovering the existence of Excess
Packet Loss/Latency, Exodus will determine whether the source of the Excess
Packet Loss/Latency is limited to the Customer Equipment and the Exodus
equipment connecting the Customer Equipment to Exodus' LAN ("Customer Specific
Packet Loss Latency"). If the Excess Packet Loss/Latency not a Customer Specific
Packet Loss/Latency, Exodus will determine the source of the Excess Packet
Loss/Latency within [**] after determining that it is not a Customer Specific
Packet Loss/Latency. In any event, Exodus will notify Customer of the source of
the Excess Packet Loss/Latency within [**] after identifying the source.
In addition to the foregoing, Exodus shall (1) notify Customer of any
Excess Packet Loss or Excess Latency discovered within Exodus' LAN or WAN
tenable Customer to determine whether same is affecting the Customer Equipment,
if Exodus reasonably believes that the problem uniquely affects Customer; and
(2) if Customer reasonably believes that it is entitled to a credit pursuant to
Sections 5.2(a)(i) or (ii) and requests such information in writing, Exodus
shall provide a written analysis of network performance to the extent same is
tracked b, Exodus and is relevant to validating the applicability and amount of
such credit.
(B) Remedy of Excess Packet Loss/Latency. If the Excess
Packet Loss/Latency remedy is due to causes attributable to Exodus or Exodus
Third Parties (excluding causes attributable to Customer or other third parties
other than Exodus Third Parties), Exodus will remedy the Excess Packet
Loss/Latency within [**] of determining the source of the Excess Packet
Loss/Latency. If the Excess Packet Loss/Latency is partly or wholly within the
control of third parties other than Exodus Third Parties, Exodus will notify
Customer and will use commercially reasonable efforts to notify the party(ies)
responsible for the source and cooperate with it (them) to resolve the problem
as soon as possible.
(C) Failure to Determine Source and/or Resolve Problem. In
the event that Exodus is unable to determine the source of and remedy the Excess
Packet Loss/Latency within the time periods described above (other than for
causes which are attributable to third parties other than Exodus Third Parties),
Exodus will credit Customer's account the pro-rata total service charges for
[**] of service for every [**] after the time periods described above that it
takes Exodus to resolve the problem, up to an aggregate maximum credit of total
service charges for [**] of service in any [**].
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
(iii) Customer Must Request Credit. To receive any of the credits
described in this section 5.2(a), Customer must notify Exodus within [**] from
the time Customer becomes eligible to receive a credit. Failure to comply with
this requirement will forfeit Customer's right to receive a credit.
(iv) Remedies Shall Not Be Cumulative; Maximum Credit. In the
event that Customer is entitled to credits pursuant to both Sections 5.2(a)(i)
and 5.2(a)(ii) arising from the same event, such credits shall not be cumulative
and Customer shall be entitled to receive only the maximum single credit
available for such event. In no event will Exodus be required to credit Customer
in any one (1) calendar month total service charges in excess of [**] of
service. Customer shall not be eligible to receive any credits for periods in
which Customer received any Internet Data Center Services free of charge (not as
a result of a credit under this Section 5.2).
(v) Termination Option for Chronic Problems. If, in any single
calendar month, Customer would be able to receive credits totaling [**]
resulting from [**] or more events during such calendar month or, if any single
event entitling Customer to credits under paragraph 5.2(a)(i) exits for a period
of [**], then Customer may terminate this Agreement for cause and without
penalty by notifying Exodus within five (5) days following the end of such
calendar month. Such termination will be effective in not less than ten (10)
days and not more than sixty (60) days after receipt of such notice by Exodus.
THIS WARRANTY DOES NOT APPLY TO ANY INTERNET DATA CENTER SERVICES THAT EXPRESSLY
EXCLUDE THIS WARRANTY (AS DESCRIBED IN THE SPECIFICATION SHEETS FOR SUCH
PRODUCTS).
(c) Exodus represents and warrants that: (i) it owns and has
legal right and authority, and will continue to own and maintain the legal right
and authority during the term of this Agreement, to allow the placement and use
of the Customer Equipment in the Customer Area of the Internet Data Center and
to perform the Internet Data Center Services from such location as contemplated
by this Agreement; (ii) it has full right, power and authority to enter into
this Agreement and to perform the acts required of it hereunder; (iii) the
execution of this Agreement by Exodus and the performance by Exodus of its
obligations and duties hereunder, does not and will not violate any agreement to
which Exodus is a party or by which it is otherwise legally bound; and (iv)
Exodus' Internet Data Center Services, and facilities used by Customer pursuant
to this Agreement (A) do not as of the Installation Date, and will not during
the term of this Agreement be provided or operate in any manner that would
violate any applicable law or regulation; and (B) as of the submission date,
comply with the description of the facility systems attached hereto as Exhibit
D. Exodus covenants that during the term of this Agreement Exodus will not alter
the facilities systems it uses such that Customer would receive materially
reduced benefits (as reasonably determined by Customer in consultation with
Exodus) from Exodus facilities systems as described in Exhibit D. If Exodus
breaches the warranties and covenants in this Section 5.2(b) and fails to cure
any such breach within the time period provided in Section 8, below, Customer's
sole remedy shall be its ability to terminate this Agreement effective in not
less than ten (10) days and not more than sixty (60) days after (receipt of
written notification from Customer. The foregoing limitation shall not release
Exodus of any of its obligation pursuant to Section 7.1 (Indemnification),
below.
(d) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT
IN SUBSECTIONS (a) AND (b) ABOVE, THE INTERNET DATA CENTER SERVICES ARE PROVIDED
ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA CENTER SERVICES IS
AT ITS OWN RISK. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER
EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(e) 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' INTERNET DATA CENTERS 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 EXODUS' CUSTOMERS' CONNECTIONS TO
THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH EXODUS
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(f) WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND
AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR.
ACCORDINGLY, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EXODUS
DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
SERVICE INTERRUPTIONS OR PROBLEMS RESULTING FROM EQUIPMENT OR TELECOMMUNICATIONS
FACILITIES CONTROLLED AND OPERATED BY EXODUS ARE EXPRESSLY EXCLUDED FROM THIS
DISCLAIMER.
6. LIMITATIONS OF LIABILITY
6.1 Personal Injury. EACH REPRESENTATIVE AND ANY OTHER PERSONS VISITING
THE INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO
LIABILITY WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER
THAN EXODUS' NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Business. EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS AGREEMENT, EXODUS ASSUMES NO LIABILITY FOR ANY
DAMAGE TO, OR LOSS RELATING TO CUSTOMER'S BUSINESS RESULTING FROM ANY CAUSE
WHATSOEVER. EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY
CUSTOMER EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS' NEGLIGENCE,
WILLFUL MISCONDUCT OR MATERIAL BREACH OF THIS AGREEMENT. TO THE EXTENT EXODUS IS
LIABLE FOR ANY DAMAGE TO, OR LOSS OF, THE CUSTOMER EQUIPMENT FOR ANY REASON,
SUCH LIABILITY WILL BE LIMITED SOLELY TO THE REPLACEMENT VALUE OF THE CUSTOMER
EQUIPMENT.
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1, 6.2, AND 7.1, IN NO
EVENT WILL EXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY
FOR ANY LOST REVENUE, LOST PROFITS, LOSS OF DATA, LOSS OF SERVICES, EXCEPT AS
OTHERWISE PROVIDED HEREIN, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
6.4 Maximum Liability. Intentionally Deleted.
6.5 Customer's Insurance. Intentionally Deleted.
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer
acknowledges that Exodus set its prices and entered into this Agreement in
reliance upon the limitations of liability and 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.
6.7 EXCEPT AS SET FORTH IN 7.2, IN EVENT WILL CUSTOMER BE LIABLE HEREUNDER
TO EXODUS, ANY REPRESENTATIVE OR THIRD PARTY FOR ANY LOST REVENUE, LOST PROFITS,
LOSS OF SERVICE, ( LOSS OF DATA, INCIDENTIAL, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
EITHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE.
7. INDEMNIFICATION.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify, defend and
hold Customer, its employees, parent and/ or subsidiaries harmless from and
against any and all costs, liabilities, losses, and expenses (including, but not
limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from
or arising out of any third party claim, suit, action, or proceeding (each, an
"Action") brought against Customer, its employees, parents and/or subsidiaries
alleging or arising out of (i) the infringement or misappropriation of any
intellectual property rights, resulting from the provision of Internet Data
Center Services pursuant to this Agreement (but excluding any infringement
contributorily caused by Customer's Business of Customer
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Equipment); (ii) personal injury to Customer's Representatives from Exodus's
negligence or willful misconduct, or (iii) Exodus' material breach of Sections
5.2(b)(i), (ii) or (iv), provided that the indemnification obligation hereunder
shall not apply to the extent that such Losses were caused by the negligence,
breach or willful misconduct of Customer.
7.2 Customer's Indemnification of Exodus. Customer will indemnify, defend
and hold Exodus and its affiliates harmless from and against any and all Losses
resulting from or arising out of any Action brought by or against Exodus or its
affiliates alleging or arising out of: (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 Rules and Regulations; (b) any
damage or destruction to the Customer Area, the Internet Data Centers or the
equipment of Exodus or any other customer by Customer or Representative(s) or
Customer's designees; or (c) any material breach of Customer's obligation under
this Agreement, provided however, that the indemnification obligation hereunder
shall not apply to the extent that such Losses were caused by the negligence,
breach, or willful misconduct of Exodus.
7.3 Notice. Each party will provide the other party prompt written notice
upon of the existence of any such event of which it becomes aware, and an
opportunity to participate in the defense thereof at such other party's sole
cost and expense.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of fourteen (14)
months from the first Installation Date on the initial IDC Services Order Form,
unless earlier terminated according to the provisions of this Section 8
("Initial Term"). Following the Initial Term, the Agreement will automatically
continue indefinitely until terminated in accordance with Section 8.2, below.
During the Initial Term, Exodus may not change prices for any services ordered
by Customer. Thereafter, Exodus may only change prices annually and shall give
Customer at least 120 days' advance written notice of any price change.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may
terminate this Agreement convenience by providing written notice to Exodus any
time during the thirty (30) day period beginning on either Installation Date in
the Initial IDC Services Order Form or the Installation Date in any subsequent
IDC Services Order Forms, if any, provided that, with respect to any subsequent
IDC Services Order Form, Customer's right to terminate this Agreement
convenience hereunder shall apply to this Agreement only as it relates to the
Internet Data Services set forth in such IDC Services Order Form.
(ii) By Either Party. Either party may terminate this Agreement
for convenience at any time effective after the Initial Term by providing one
hundred twenty (120) days' prior written notice to the other party at any time
thereafter.
(b) For Cause. Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within fifteen (15) days after
receipt of written notice of same, (ii) the other party becomes the subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership liquidation, or composition for the benefit of
creditors; or (iii) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
8.3 No Liability for Termination. Neither party will be liable to the
other for any termination expiration of this Agreement in accordance with its
terms.
8.4 Effect of Termination. With respect to termination by Customer in
accordance with its rights under this Agreement (other than under Section
8.2(a)(ii)) Customer shall have the right to determine the effective date of
such termination, provided that such effective date is not less than ten (10)
days and not more than sixty (60) days after the date of notice of termination
to Exodus. During such period between notice of
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termination and its effective date each party shall perform its obligations
pursuant to this Agreement. Customer may remove Customer Equipment at any time,
provided that Customer shall remain obligated to pay for services through the
effective date of termination of the Agreement. Upon the effective date of
expiration or termination of this Agreement: (a) Exodus will immediately cease
providing the Internet Data Center Services; (b) within thirty (30) days after
such expiration or termination, upon request by the other party, 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 reasonably deemed necessary by such party to
carry out its internal legal or accounting responsibilities to comply with any
applicable legal or accounting record keeping requirement; and (c) Customer will
remove from the Internet Data Centers all Customer Equipment and any of its
other property within the Internet Data Centers within five (5) days of the
effective date of such expiration or termination and return the Customer Area to
Exodus in the same condition as it was on the Installation Date, normal wear and
tear excepted. If Customer does not remove such property within such five-day
period, Exodus will have the option to (i) move any and all such property to
secure storage and charge Customer for the reasonable and actual cost of such
removal and storage.
8.5 Intentionally Deleted.
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 4, 6, 7, 8 and 9 (other than 9.3).
9. MISCELLANEOUS PROVISIONS.
9.1 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
due to an act of war, acts of God, earthquake, flood, embargo, riot, sabotage,
labor shortage or dispute, governmental act, failure of the Internet or failure
to provide services for reasons beyond its reasonable control that could not and
should not (given the state of the industry) have been reasonably anticipated
and planned for, 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.
9.2 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. 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, and
(iii) Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations, or ordinances. For good cause and upon
written notice to Customer, Exodus may suspend the right of any specific
Representative or other person to visit the Internet Data Centers in which case
Customer shall designate substitutes.
9.3 Marketing. Exodus may, upon Customer's prior written consent on a
case-by-case basis, which shall not be unreasonably withheld, refer to Customer
by trade name and trademark, and may briefly describe Customer's Business, in
Exodus' marketing materials and web site. Notwithstanding anything the contrary,
Exodus may list Customer in a generalized list of all or a representative group
Exodus' customers.
9.4 Government Regulations. Neither party will 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.
9.5 Non-Solicitation. During the period beginning on the Installation Date
and ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, neither party will, and each party will
ensure that its affiliates do not, directly or indirectly, solicit or attempt
solicit for employment any persons employed by the other party during such
period.
9.6 Governing Law; Dispute Resolution, Severability; Waiver. 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. Any dispute relating to the terms, interpretation
-8-
or performance of this Agreement (other than claims for preliminary injunctive
relief or other pre-judgment remedies) will be resolved at the request of either
party through binding arbitration. Arbitration will be conducted under the rules
and procedures of the American Arbitration Association ("AAA"). Each party will
appoint a single arbitrator and the two arbitrators shall appoint a third
arbitrator. 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.
9.7 Assignment; Notices. Neither party may assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of the other party, except that this Agreement may be assigned
in whole as part of a corporate reorganization, consolidation, merger, or sale
of substantially all of its assets. 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. Any notice or
communication required or permitted to be given hereunder may be delivered by
hand, 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 indicated on the
signature page hereof, or at such other address as may hereafter be furnished in
writing by either party hereto to the other. Such notice will be deemed to have
been given as of the date it is delivered, mailed or sent, whichever is earlier.
Exodus may assign this Agreement in whole or in part in connection with a senior
secured credit facility as long as Exodus remains obligated to Customer to
perform its obligations under this Agreement.
9.8 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 prior written consent,
except as otherwise expressly provided herein.
9.9 Entire Agreement; Counterparts. This agreement, including all Exhibits
and documents, which are 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 contemporaneous
discussions, negotiations, understandings and agreements, written and or
regarding such subject matter. This Agreement may be executed in two or more
counterparts, each which will be deemed an original, but all of which together
shall constitute one and the same instrument.
Customer's and Exodus' authorized representatives 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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------- --------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------- -------------------------------
Title: President Title: Vice President and General Counsel
-------------------------- ------------------------------------
-9-
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
EXHIBITS
Exhibit A Initial IDC Services Order Form
Exhibit B Service Descriptions
Exhibit C Support Services
-10-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES
ORDER FORM
EXHIBIT A
---------
Customer Name: Switchboard Corporation
Form Date: June 14, 1999
Form No.: sharper6.14.99
Installation Site(s): Waltham
Type of Service(s): New Upgrade
---------------
Additional Cancellation
Original Services Agreement Date: _______________________
--------------------------------------------------------------------------------------------------------------------
Internet Data Brief Description Extended Extended Monthly
Center Services (Detailed description attached) Qty Unit Price Non-Recurring Fees Fees
--------------------------------------------------------------------------------------------------------------------
EXO-VDC Virtual Data Center (7' x 8') 1 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-VDC-SU Virtual Data Center Setup 1 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-VDC Virtual Data Center (7' x 8') 1 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-VDC-SU Virtual Data Center Setup 1 [**]
--------------------------------------------------------------------------------------------------------------------
EXO-FAST-US 5 Mbps base Fast Ethernet with 1 [**] [**]
100 Mbps burstability
--------------------------------------------------------------------------------------------------------------------
EXO-FAST-SU Setup - Fast Ethernet Network 1 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-XCON-TI-SU Setup for TI remote access 1 [**] [**]
(cross-connect)
--------------------------------------------------------------------------------------------------------------------
EXO-XCON-RTI Recurring charge for TI remote 1 [**] [**]
access (cross-connect)
--------------------------------------------------------------------------------------------------------------------
EXO-MMS-BAS Managed Monitoring Service Basic 40 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-BCMM-SU Setup - Tape Media Management 1 [**] [**]
--------------------------------------------------------------------------------------------------------------------
EXO-RCMMW Tape Media Management (weekly 1 [**] [**]
backup)
--------------------------------------------------------------------------------------------------------------------
Total: [**] [**]
--------------------------------------------------------------------------------------------------------------------
NOTES: This order replaces the existing order.
-----------------------------------------------
COMPLETE THE FOLLOWING PAGE BEFORE SUBMITTING
CUSTOMER'S INITIALS WR
------
-11-
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES
ORDER FORM
Customer Name: Switchboard
Form Date.: June 14, 1999
Form No.: sharper6.14.99
IMPORTANT INFORMATION:
---------------------
1. By submitting this Internet Data Center Services Order Form (Form) to
Exodus Communications, Inc. (Exodus), Customer hereby places an order for
the Internet Data Center Services described herein pursuant to the terms
and conditions of the Internet Data Center Services Agreement between
Customer and Exodus (IDC Agreement).
2. Billing, with the exception of Setup Fees, will commence on the earlier of
the Installation Date indicated below or the date Customer actually
installs its equipment or Exodus begins providing Internet Data Center
Services. All Setup Fees will be billed upon receipt of a Customer signed
IDC Service Order Form.
3. Exodus will provide the Internet Data Center Services pursuant to the terms
and conditions of the IDC Agreement, which incorporates this Form. The
terms of this Form supersede, and by accepting this Form Exodus hereby
rejects any conflicting or additional terms provided by Customer in
connection with Exodus' provision of Internet Data Center Services. If
there is a conflict between this Form and any other Form provided by
Customer and accepted by Exodus, the Form with the latest date will
control.
4. Exodus will not be bound by or required to provide Internet Data Center
Services pursuant to this Form or the IDC Agreement until each is signed by
an authorized representative of Exodus.
Customer to complete:
--------------------
CUSTOMER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Installation Dated: 7/28/99
-------------
Submitted By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Submission Date: 7/22/99
--------------------------- ----------
(Authorized Signature) (Effective Date of IDC Agreement)
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: Director Product Development
-----------------------------------
Exodus Communications, Inc. Acceptance
---------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Date: 10/26/99
---------------------------------- -------------------------
(Authorized Signature)
CUSTOMER'S INITIALS WR
------
-12-
EXHIBIT B
VIRTUAL DATA CENTER
Description
The Virtual Data Center (VDC product is a secured private area within the Exodus
Communications Data Center. It is designed with steel mesh walls and a key lock
sliding access door. The VDC provides ultimate space flexibility for customers
with non-rack mountable equipment and/or with a large number of servers. The
VDC is designed to house computer and networking equipment (see below for
specifications).
Specifications
-----------------------------------------------------------------------------------------------------------------
Equipment Power Dimensions
-----------------------------------------------------------------------------------------------------------------
Virtual Data Center -- Secure Area 4 dedicated 20 Amp Circuits 7' W x 8, D
EXO-VDC -- 4 Racks
-- 16 Shelves
-- Wiring Channels
-- Wiring Patch Panel
-- Power Distribution Bars
-- 3 Customer Access Cards
-- I POTS line cross-connect
-----------------------------------------------------------------------------------------------------------------
Exodus Operations will review customer equipment inventory list and determine
type of rack (19" or 23") to be used during installation phase.
All customers have access to temporary remote phones while visiting Exodus
Internet Data Centers. Phones will allow free local calling ONLY. Long
distance calling will require calling card.
Services Included
Managed Services
All CyberRack products include the following basic services for ONE web server.
Please refer to their individual specification sheets for detailed information.
. 24 x 7 Network Monitoring
. 24 x 7 URL Monitoring
. 24 x 7 Reboot Service
DNS
. Exodus will setup or transfer up to two domain names. First years InterNIC
charges will be billed back to the customer. InterNIC will ▇▇▇▇ all
subsequent domain name charges directly to the customer.
. Exodus will provide primary DNS support for up to two domain names and an
unlimited number under secondary DNS.
Project Management
Each new Exodus customer will be assigned a Project Manager to coordinate and
manage the installation process. The Exodus Project Manager works closely with
customer personnel to ensure that the installation is successful. Some of the
key tasks performed by the Project Manager include:
-13-
. Development of the Installation Plan
. Design of the Space Layout Plan
. Coordinate space build out, domain registration and/or DNS transfer
. Coordinate and assist with the installation of customer's equipment
. Collect key customer data including contacts and operating procedures to be
supported by Exodus
. Customer setup in the Exodus Network Control Center for on-going monitoring
and technical support
VDC Setup
Setup charges include all of the following:
. Infrastructure equipment setup
. Power wiring and circuit setup
. POTS line cross connect installation
Power
All Exodus Internet Data Centers are facilitized with 20 Amp circuits. All
circuits provide in-line UPS and diesel generator backup in the event of grid
power failure. To conform to electrical code for peak power use, maximum power
usage is limited to 75% of circuit value (i.e. 15 amps for a 20 Amp circuit).
Exodus reserves the right to audit customer circuits at random to verify power
usage.
Custom circuit configurations can be accommodated, however, depending on exact
customer requirements additional charges and lead times may apply. Please refer
to the below chart regarding power specifications for standard product
configurations.
--------------------------------------------------------------------------------------------
Number of 20 Amp Maximum Power Additional Purchasable
Circuits Included Usage (Amps) Power Increments
--------------------------------------------------------------------------------------------
Virtual Data Center
EXO-VDC 4 60 20 Amp Circuits
--------------------------------------------------------------------------------------------
Services Not Included
Customer equipment installation and wiring
-14-
TAPE MEDIA MANAGEMENT
Part Number
EXO-BCMM-SU Setup - Tape Media Management
EXO-BCMM Tape Media Management
EXO-BCMMW Tape Media Management - Weekly Backup
Description
Exodus Communications operations personnel will remove and insert backup tapes
from a customer provided tape or jukebox type. Exodus personnel can conduct
this procedure according to a predefined schedule or on an on-demand basis, but
not more often than 1 tape per drive per day.
Services Included
. All services are provided during the 8am-10pm timeframe
. Insert new or recycled tapes into a jukebox or tape device on a (once)
daily (Tape Media Management) or (once) weekly basis (Tape Media
Management- Weekly Backup).
. Remove tapes from a jukebox or tape device
. Catalog and place removed tapes in on-site customer designated or Exodus-
provided tape storage container
. Coordinate weekly off-site storage. (Note: Third party storage is not
currently part of the Exodus tape backup service.) Customer must contract
directly with a third party off-site storage facility. Exodus has an
existing relationship with Arcus/Iron Mountain for these services.
Services Not Included
. Troubleshooting and problem resolution of tape or jukebox device
. Troubleshooting and problem resolution of backup scripts or programs
. Backup strategy design
. Tape media or backup device
. Offsite storage
Response Times for On-Demand Tape Exchange
. 1 hour response for tape insertion or removal requests of tapes located
in customer co-location space. Up to two hours for customers not resident
in data center locations.
Reporting
Exodus administrators will provide a monthly on-line backup report. The
following items will be included in the report:
. Tape management log of what tapes have been inserted or removed.
. Tape management procedures.
Customer Escalation
-15-
Exodus will notify customers via phone and e-mail of any problem conditions that
occur in the tape exchange process.
BANDWIDTH REPORTS
Part Number
EXO-SRBW
Description
Exodus Bandwidth Reports provide customers with graphical and tabular statistics
of their bandwidth usage. Reports are accessible via the web and show traffic
volumes between the customer's equipment and the network In addition to
providing the traffic volume at a particular instance in time, the reports
include summary statistics of maximum, minimum, and 95% loading. This
information offers customer a way to monitor usage trends and assist with the
capacity planning of server and network resources.
Reports
Monthly
Monthly reports are included with each network service purchased. Monthly
reports are produced on the 16th and 1st of the month. On the 16th of the month
the report lists usage for each of the prior 15 days. On the 1st of the month,
the report provides bandwidth usage for the prior month.
Daily
Daily reports are made available each day of the month. Reports for the
previous day are available by 4:00 AM PDT the following morning. Daily Reports
are ordered as an optional service using the part number shown above.
Both the Monthly and Daily Reports feature:
. A summary table which gives overall traffic statistics (e.g., max and min
throughput) for the period covered
. Graphical plots of bandwidth statistics
. Data detail shown in a tabular format
The Monthly Reports are archived and available for 12 months.
Media
Bandwidth reports are published on the web. To ensure confidentiality of
customer data, access to individual customer information requires the user to
enter a user-id and password. Report data can also be downloaded from a
browser, allowing the customer to use a spreadsheet to do customized
calculations or graphs.
Measured Statistics
For each network line, the Bandwidth Reports capture statistics on the output,
input, and total data flow. Output is defined as the amount of data passing
from the server to the network. Input is the volume of traffic from the network
to the server. Total is the sum of the input and output. Below is a list of
the reported statistics for data output, input, and total:
. Bandwidth -The volume of data in Kbits/sec
. Minimum - The lowest measured bandwidth
-16-
. Maximum - This highest measured bandwidth
. 95% Value -Network bandwidth is lower than or equal to this value 95% of the
time. This statistic is only reported for customers with usage based billing
(not flat rate).
-17-
USAGE BASED BANDWIDTH POLICY
Part Number
------------------------------------------------------------------------------------------------------------
EXO-ETHER-U1 1 Mbps base Ethernet with 10 Mbps burstability
------------------------------------------------------------------------------------------------------------
EXO-ETBER-U2 2 Mbps base Ethernet with 10 Mbps burstability
------------------------------------------------------------------------------------------------------------
EXO-ETBER-UV Variable Usage Cost per Megabit Above Base Amount ($/megabit) for Ethernet
------------------------------------------------------------------------------------------------------------
EXO-ETHER-SU Setup - Ethernet Network
------------------------------------------------------------------------------------------------------------
EXP-FAST-U10 10 Mbps base Fast Ethernet with 100 Mbps burstability
------------------------------------------------------------------------------------------------------------
EX0-FAST-UV10 Variable Usage Cost Per Megabit Above Base Amount ($/megabit) for 10 Mbps Base Fast
Ethernet
------------------------------------------------------------------------------------------------------------
EXO-FAST-U50 50 Mbps base Fast Ethernet with 100 Mbps burstability
------------------------------------------------------------------------------------------------------------
EXO-FAST-UV50 Variable Usage Cost Per Megabit Above Base Amount ($/megabit) for 50 Mbps Base Fast
Ethernet
------------------------------------------------------------------------------------------------------------
EX0-FAST-SU Setup - Fast Ethernet Network
------------------------------------------------------------------------------------------------------------
Usage Based Billing
Exodus Communications will ▇▇▇▇ the customer monthly for the base bandwidth
amount that has been purchased. For bandwidth used above the base amount there
will be an additional per megabit used charge (refer to the quote), which will
be billed at the end of the month. Exodus uses the 95th percentile measurement
rule to calculate the additional bandwidth used above the base amount.
95th Percentile Measurement Rule
The Exodus Bandwidth measurement system collects five minute averages of the
total (input + output) line usage of your co-location network connection. This
data is collected seven days a week, twenty-four hours a day for each month. At
the end of each month or billing cycle the top five percent of these data points
are discarded. The highest remaining data point (five minute average) is
referred to as the 95th percentile. The 95th percentile value less the base
bandwidth purchased determines the additional bandwidth used. The additional
usage charge is calculated as follows:
Additional usage charge = additional bandwidth used X additional per megabit
used charge
Decimal fractions of a megabit are included with the additional bandwidth used
measurement
Example
Assume a usage based 10Mbps Ethernet connection with the following parameters:
. The monthly 95th percentile utilization is 4.6 Mbps
. Base bandwidth purchased at $2000 per month for 2 Mbps
. Additional per megabit charge for bandwidth used above 2 Mbps at $1300 per
megabit
Pricing Example for a sample month:
--------------------------------------------------------------------------------------------------------------------
95/th/ Base Additional Standard Additional Total Monthly
Percentile Value Band-width Bandwidth Used Monthly Charge Monthly Charge Bandwidth charge
--------------------------------------------------------------------------------------------------------------------
4.6 Mbps 2 Mbps 2.6 Mbps $2,000 2.6x1,300=$3,380 $5,380
--------------------------------------------------------------------------------------------------------------------
-18-
EXHIBIT C
--------------------------------
Installation _______________________________________________
Responsibilities
--------------------------------
------------------------------------------------------------------------------------------------
Task Exodus Responsibilities Customer Responsibilities
------------------------------------------------------------------------------------------------
[_] 1. Installation Planning . Establish Meeting . Confirm Requirements
Meeting . Prepare Agenda
. Review Customer Requirements
. Develop Pre-
Installation Plan
------------------------------------------------------------------------------------------------
[_] 2. Customer Gather Information and Put into Provide Requested
Profile Customer Information
Database
------------------------------------------------------------------------------------------------
[_] 3. Installation Document Final Plan Confirm Final Plan
Plan
------------------------------------------------------------------------------------------------
[_] 4. Communication Plan Assist Customer in Order Customer-
Communication Lines Provided
Coordination Lines Communication
------------------------------------------------------------------------------------------------
[_] 5. Equipment Procure Exodus- Procure Customer-
Provided Equipment Provided Equipment
------------------------------------------------------------------------------------------------
[_] 6. Assign IP Assign from Exodus Load New IPs into
Addresses Block at Time of Move Customer Equipment
------------------------------------------------------------------------------------------------
[_] 7. DNS Move* Move DNS to Exodus, with Request DNS Move
When Required/ Internic, When Required
Approved
------------------------------------------------------------------------------------------------
[_] 8. Prepare LAN and Space Set up and Test LAN
Rack/Cabinet/VDC Connection and Shelf/
------------------------------------------------------------------------------------------------
[_] 9. Physical . Change DNS Install and Test
Installation . Initiate System Equipment, Application
. Stand-by Support And LAN Connection
------------------------------------------------------------------------------------------------
[_] 10. Establish Set-up Procedures Review and Confirm
System Health Parameters and
Monitoring Procedures
Parameters and
Procedures**
------------------------------------------------------------------------------------------------
[_] 11. Customer Review with Customer Review with Exodus
Manual Project Manager
------------------------------------------------------------------------------------------------
* When DNS moves from ISP to Exodus
** When Customer selects SystemHealth Services
-19-
--------------------------------
Customer Support _______________________________________________
--------------------------------
How to Contact When you have a technical problem, our objective is to solve it
Exodus Communications as quickly as possible.
When You have a
Technical Problem Contact the Exodus Network Control Center by:
Phone..........▇-▇▇▇-▇-▇▇▇▇▇▇ -(888)▇▇▇-▇▇▇▇
E-mail.........▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Availability...The Network Control Center (NCC) is staffed
24-hours-a-day, seven days/week
--------------------------------------------------------------------------------------------------
What Happens When When your call is received the Network Control Center (NCC)
The Network Control Engineer:
Center (NCC) Receives . Gathers the pertinent information relating to your problem
Your Call? report or request.
. Assigns a priority to your request (see Five Priorities below).
. Opens a trouble ticket in our Help Desk System and notifies
customer of the ticket number.
. Begins to work the problem or re-assigns the problem to
another Exodus support person, if necessary.
. Keeps you informed on problem resolution.
--------------------------------------------------------------------------------------------------
Exodus Each Customer Request is assigned a priority (Request Priority),
Communications had based on the following guidelines:
Five Request
----------------------------------------------------------------------
Priorities Priority Description
----------------------------------------------------------------------
1. ................. Size is not operational.
2 .................. Size is operational, but highly degraded.
3 .................. Size is operational, but slightly degraded.
4 .................. Non-critical change request.
5 .................. For information only.
The assigned Request Priority is then used by the Network
Control Center (NCC) to:
. Determine the order that Customer Requests are processed.
. Assign a method and frequency for informing you of the Customer
Request status.
. Escalate your request inside Exodus, as required.
Note: Customers can log their call via e-mail at:
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ or via phone at: 1-888-2EXODUS.
If you have a Priority 1 or 2 problem, please open
your call via 1-888-2EXODUS.
-20-
--------------------------------
Customer Support _______________________________________________
--------------------------------
Problem Resolution When a Network Control Center Engineer is unable to resolve a
Prices network problem within a specified time period, based on the
Request Priority, she forwards the problem to the Network
Engineering group for resolution.
When the Network Engineering group is unable to resolve a network
problem, they escalate the problem to the Exodus Backbone Engineering
Department. The Backbone Engineers are responsible for the design,
development, and implementation of the Exodus backbone network and
network infrastructure.
When a NCC Engineer is unable to resolve a system problem
within a specified time period, based on the Request Priority,
she forwards the problem to the System Administration group for
resolution.
-------------------------------------------------------------------------------------------------------------
Escalation - In addition to escalating problems for technical resolution, Exodus
Exodus Management has a management escalation procedure to ensure that all possible
resources are being applied to resolve critical customer problems.
This escalation path includes the following people:
. Lead NCC Engineer
. NCC Manager
. Internet Data Center Manager
. Manager, Customer Advocacy
. Vice President, Customer Service
. President of Exodus
-------------------------------------------------------------------------------------------------------------
Escalation - While we make every effort to ensure that problems area being resolved as
Initiated by quickly as possible, we understand that at certain times, you may want us
The Customer to go faster.
At any point during the problem resolution process, you can ask the person
you are talking with to escalate the problem to the next level.
Example: If you are talking to a NCC Engineer, you can ask to escalate the
problem to the Lead NCC Engineer. You may also ask to escalate a
problem to the people in the management escalation process
described above.
-------------------------------------------------------------------------------------------------------------
Standard Requests Requests for configuration changes, additional services or information are
most efficiently made by E-mail so that any requirements are documented.
Exodus established a set of Service Level Commitments for these standard
requests, which are described in the next section.
Customer Satisfaction When each Customer Request Call Ticket is closed after resolution, we
Survey E-mail you a short survey form, asking for your feedback on how well we did
in resolving your request.
We thank you in advance for completing and returning these surveys, which
are used to evaluate how well we respond to your requests and to identify
opportunities to improve our services.
-------------------------------------------------------------------------------
-21-
--------------------------------------------------
Network Services - Service Level Commitments _____________________________
--------------------------------------------------
Overview This section outlines Exodus Communications' service level commitments for Network Services
Special commitments may be completed earlier than the time tables given in each section.
Some services must be purchased from Exodus before work can begin.
Unless otherwise noted, these services are performed during normal business hours, 8 AM to 6
PM Monday through Friday.
------------------------------------------------------------------------------------------------------------------
Engineering DNS Host, Add One Host Four (4) Business Hours*
------------------------------------------------------------------------------------------------
Add New Domain
(includes Internic Filing) Five (5) Business Days
------------------------------------------------------------------------------------------------
Move One Domain
From Another Provider Ten (10) Business Days
------------------------------------------------------------------------------------------------
Enter All Hosts for the Domain One (1) Business Day
------------------------------------------------------------------------------------------------
Change 24 x 7 Network Monitoring One (1) Business Day
Requests Switch/Router Administration Five (5) Business Days
24 x 7 URL Monitoring One (1) Business Day
------------------------------------------------------------------------------------------------------------------
News Feed News Feed:
Must Supply Group One (1) Business Day
List and Server Name
------------------------------------------------------------------------------------------------
Support E-mail Open ticket within Four (4) Hours
------------------------------------------------------------------------------------------------
Problem Calls Five (5) minutes max before call answered
Twenty (20) minutes to verify problem and open ticket
------------------------------------------------------------------------------------------------
Proactive Notification Ten to Thirty (10 to 30) minutes after event
------------------------------------------------------------------------------------------------
Reboot Requests Fifteen (15) minutes from the time the call is answered a reboot
will be initiated
------------------------------------------------------------------------------------------------
Information Requests One (1) Business Day (either with specific information or
timeframe to provide)
------------------------------------------------------------------------------------------------------------------
Network Router New Filter List One (1) Business Day
Managed Configuration New (Access) Customer One (1) Business Day
Services
Assign New Subnet: One (1) Business Day
(with Network Map)
Network Checkpoint Implementation Fifteen (15) Business Days
Security Raptor Implementation Fifteen (15) Business Days
*DNS Note: Server only reset twice a day.
-22-
--------------------------------------------------
Managed Services - Service Level Commitments ______________________________
--------------------------------------------------
Overview This section contains the response time for Managed Services.
All services are provided within standard Exodus product specifications
during normal business hours. Some services must be purchased from Exodus
before work can begin.
Unless otherwise noted, these services are performed during normal business
hours.
----------------------------------------------------------------------------------------------------------------
Installation After Hour Customer Installs Must be coordinated with
the Project Manager.
--------------------------------------------------------------------------------
Standard Facility/Buildout Five (5) Business Days
Additional Power Standard (110V 20 AMP
Circuit)
--------------------------------------------------------------------------------
Additional Shelves One (1) Business Day
--------------------------------------------------------------------------------
Custom Configurations Ten (10) Business Days
(Including Moves, Additional Racks
and Customer Cross Cabling)
----------------------------------------------------------------------------------------------------------------
System OS Installation One (1) Business Day
--------------------------------------------------------------------------------
Administration OS Patch Installation One (1) Business Day
System Management Bandwidth Reports New Customer or One (1) Business Day
Change in
Frequency
----------------------------------------------------------------------------------------------------------------
Monitoring Changes SystemHealth One (1) Business Day
Monitoring
-23-
----------------------------------------------
Rules for Accessing Internet Data Centers __________________________________
----------------------------------------------
--------------------------------------------------------------------------------------------------------------
Identification . Only individuals identified as Exodus Customers and their
representatives, contractors, agents or users of an Exodus Customers'
online facilities may access the Internet Data Centers (IDCs).
--------------------------------------------------------------------------------------------------------------
Logging In and Out . All Exodus Customers and their representatives, contractors, agents and
users of an Exodus Customers' online facilities are required to log in and
out of the IDCs with proper ID (government issued driver's license or
picture ID).
--------------------------------------------------------------------------------------------------------------
Unauthorized . Exodus Customers cannot allow any unauthorized persons to access the
Persons IDCs without prior approval.
--------------------------------------------------------------------------------------------------------------
If an Exodus Customer . Exodus Customers must notify Exodus Communications in writing using
Representative Changes their company's letterhead, e-mail or fax if there are any Exodus Customer
personnel changes.
--------------------------------------------------------------------------------------------------------------
Internet Data Centers . Exodus Customers must agree to security measures that are established by
Security exodus to protect the IDCs, its equipment and its Customers' equipment.
--------------------------------------------------------------------------------------------------------------
Accessing IDC . Exodus Customers must keep their areas clean at all time.
Facilities
. Exodus Customers may not store any paper products or materials of any
kind in the Exodus Customer Area (other than equipment manuals).
--------------------------------------------------------------------------------------------------------------
. Exodus Customers may not bring in or use any of the following items in
the facility:
- Food or drink
- Tobacco products (including chewing)
- Weapons
- Chemicals
- Illegal drugs
- Alcohol or other intoxicant
- Electromagnetic devices
- Radioactive materials
- Photographic or recording equipment of any kind (other than tape back-up
equipment
- Corrosives or corrosive devices
- Explosives
-24-
----------------------------------------------
Rules for Accessing Internet Data Centers __________________________________
----------------------------------------------
--------------------------------------------------------------------------------------------------------------
Card Key Access . If substitute Exodus Customer personnel is sent:
If there are any Customer personnel substitutes, then the authorized Exodus
Customer must notify Exodus Communications in writing describing the
activity the visitor is to perform while in the IDC. This description must
be signed by a Exodus Customer Representative.
------------------------------------------------------------------------------
. If removal of equipment is involved please identify equipment in e-mail
or in writing.
------------------------------------------------------------------------------
. If a representative is sent, the following procedure is followed to gain
IDC access:
- The NCC engineers on duty asks to see the visitor's company ID and/or
government issued ID.
- All visitors are required to sign a Log-in Sheet.
- Be prepared with a state or federally issued photo ID.
- If we have no prior notification that a representative is arriving,
the NCC engineers will not allow access. The NCC engineers asks the
company representative to wait in the lobby.
- The Exodus engineers then attempts to contact the authorized company
representative for access approval.
- If an authorized contact is unavailable, access to the IDC is denied.
Note: In some locations these functions may be performed by a guard
instead of the NCC engineer.
-25-
----------------------------------------------
Rules for Using Internet Data Centers __________________________________
----------------------------------------------
--------------------------------------------------------------------------------------------------------------
Equipment . All Exodus Customers' equipment must be clearly labeled with a Customer
And Connections name (or code name provided to Exodus) and individual component
identification.
------------------------------------------------------------------------------
. All connections to and from Exodus Customer's equipment must be clearly
labeled.
------------------------------------------------------------------------------
. Exodus Customers' equipment must be configured and run at all times in
compliance with the manufacturer's specifications, including power outlet,
power consumption and clearance requirements.
------------------------------------------------------------------------------
. Exodus makes certain equipment such as monitors, keyboards, and laptops,
available for temporary use at its IDCs by Exodus Customers.
------------------------------------------------------------------------------
. The equipment is provided on an "AS IS" basis without any warranties of
any kind.
------------------------------------------------------------------------------
. An Exodus Customer may borrow and/or use any Exodus property or
equipment, at his or her own risk, after receiving permission from Exodus.
------------------------------------------------------------------------------
. Exodus Customers must return equipment when they leave the Exodus IDCs.
------------------------------------------------------------------------------
. All Customer equipment must be labeled with server name and IP address.
------------------------------------------------------------------------------
Scheduled . Exodus performs weekly routine scheduled maintenance of its Internet
Maintenance Data Centers and Network from 1 am to 3 am (local time) each Thursday.
------------------------------------------------------------------------------
. Exodus uses its best efforts to notify Customers in advance whenever we
anticipate that this maintenance will have a material impact on the service
we provide to Exodus Customers.
------------------------------------------------------------------------------
. Exodus and Customer Personnel cooperate to minimize the impact of any
maintenance activity.
------------------------------------------------------------------------------
-26-
----------------------------------------------
Rules for Using Internet Data Centers __________________________________
----------------------------------------------
--------------------------------------------------------------------------------------------------------------
Equipment . Exodus Customers need to update their records at Exodus on a regular
Procedure and basis.
Contact Updates
------------------------------------------------------------------------------
. As equipment is added or modified, please notify the Project Manager
and include:
- Type of equipment, serial numbers
- Software, power requirements
- IP address, physical dimensions, shelves or rack mounts
------------------------------------------------------------------------------
. With each new or modified piece of equipment, procedures need to be
created or updated.
------------------------------------------------------------------------------
. The NCC does not honor requests for funning procedures not on file.
------------------------------------------------------------------------------
. Procedure forms can be obtained from the Project Manager based on
managed service requirements, such as rebooting, tape backup,
confirmation updating, and OS updating.
------------------------------------------------------------------------------
. Customers must schedule and coordinate the installation of all new
equipment with their Project Manager, to ensure the availability of all
required facilities, including power, air conditioning and network access.
------------------------------------------------------------------------------
. Customers may remove equipment at any time by following the standard
Exodus Facility Access and Security Rules.
------------------------------------------------------------------------------
Scheduled . The delivery and installation of all equipment in the IDC must be
Equipment Delivery coordinated 24 hours in advance with the assigned Project Manager.
------------------------------------------------------------------------------
. If packages or equipment need to be delivered to the IDC, address the
package(s) or equipment as follows:
COMPANY NAME
c/o Exodus Communications
Project Manager Name
IDC Address
. Please provide the assigned Project Manager with the make/model/serial
number(s) (if applicable) of ALL equipment to be delivered to the IDC.
Note: A form is available from the Exodus Project Manager at the
Pre-installation Meeting.
------------------------------------------------------------------------------
. Customer equipment deliveries which require storage outside the customer
cage, more than 48 hours, will incur additional charges.
--------------------------------------------------------------------------------------------------------------
Equipment Removal . In order for anyone to remove packages or equipment from the building,
an Exodus Material Pass MUST be completed by the Exodus Customer or Exodus
Customer Representative and must be approved by an IDC employee.
-27-
----------------------------------------------
Rules for Using Internet Data Centers __________________________________
----------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Online Conduct . Exodus Customers will not permit any Customer personnel using their
online facilities (including but not limited to the Exodus Customer's Web
site(s) and transmission capabilities), to do any of the following:
- Send SPAM (unsolicited commercial messages or communications) in any
form.
- Infringe or misappropriate the intellectual property rights of others.
Important: This includes posting copyrighted materials, using existing
trademarks and posting or distributing the trade secret information of
others in violation of confidentiality.
- Violate the personal privacy rights of others. This includes collecting
and distributing information about Internet users without their permission,
except as permitted by applicable law.
- Send, post or host harassing, abusive, libelous or obscene materials or
take any similar actions.
- Intentionally omit, delete, forge or misrepresent transmission
information, including headers, return addressing information and IP
addresses.
- Take any actions intended to cloak Exodus Customers on their users'
identity or contact information.
- Use the Exodus Communication IDC's online facilities for any illegal
purposes.
- Allow any person to engage in any of the activities described above.
-28-
----------------------------------------------
Rules for Using Internet Data Centers __________________________________
----------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Misconduct . While on Exodus property or in connection with the IDC Services, Exodus
Customers or Customer Representatives may not:
- Improperly use or abuse any Exodus property or equipment.
- Interfere with or make any unauthorized use of property or equipment of
any other Exodus Customer
- Harass any individual, including Exodus personnel and representatives of
other Exodus Customers.
- Engage in any activity that is in violation of the law or aid in
criminal activity while on Exodus property or in connection with the IDC
Services.
----------------------------------------------------------------------------------
. If Exodus Customers become aware of any such inappropriate activities,
Exodus Customers must use their best efforts to stop such activities
immediately and notify Exodus personnel.
-29-
----------------------------------------------
Security, Emergency, Health, Safety __________________________________
----------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Exodus Customer . While inside the IDC, the Exodus Customer is responsible for maintaining
Security control of the cage/cabinet key and access badge and for keeping the
Responsibilities cage/cabinet door closed and locked.
-----------------------------------------------------------------------------------
. When Exodus Customers exit the IDC, the cage key or access badge must be
returned.
-------------------------------------------------------------------------------------------------------------------
Physical Security . An Exodus Customer wishing to access the IDC cage must present a valid
Procedures state or federally issued picture ID. The on-site staff examines the valid
State or Federally issued picture ID and requests the company affiliate to
find the appropriate cage key.
-----------------------------------------------------------------------------------
. The access badge provides access to the data center door and all the
areas where unescorted customer access is allowed.
-----------------------------------------------------------------------------------
. When the Exodus Customer wishes to leave the premises, the staff will
collect the cage key and access card and return the Exodus Customer's ID.
-------------------------------------------------------------------------------------------------------------------
Emergency . The NCC staff is trained in emergency management procedures and will
Management assist personnel in the IDC in the event of an emergency.
-------------------------------------------------------------------------------------------------------------------
Fire . The IDC is protected from fire by a non-toxic fire suppression system.
Smoke and heat sensors in the ceiling and under the raised floor activate
the fire suppression system.
-----------------------------------------------------------------------------------
. There is a visual strobe and audible DAXON alarm 30 seconds before the
system discharges.
-----------------------------------------------------------------------------------
. When the alarm sounds, leave the area by the main route. The NCC staff
secures the area and ensures that everyone evacuates the area.
-----------------------------------------------------------------------------------
. If the fire suppression discharges while personnel are in the area,
there is no need for panic. There is always sufficient oxygen to maintain
life, even though the area must be evacuated immediately.
-----------------------------------------------------------------------------------
. Fire extinguishers are located throughout all IDCs.
-30-
----------------------------------------------
Security, Emergency, Health, Safety __________________________________
----------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Building Fire Alarm . The building has another fire alarm system covering the areas of the
building outside the IDC. If that alarm sounds, secure the cage door and
evacuate the building.
-------------------------------------------------------------------------------------------------------------------
Sprinkler System . There is a water sprinkler system as the last measure of fire
suppression. The sprinkler system remains dry until the IDC fire
suppression system discharges and then it is charged with water. Any fire
that survives the fire suppression system triggers the sprinkler system.
-------------------------------------------------------------------------------------------------------------------
Natural Disasters . All Customer equipment must be property restrained against an earthquake
when applicable. Exodus provides earthquake restraints that must be
attached to all non-rack mounted equipment.
-----------------------------------------------------------------------------------
. In the event of an earthquake, take cover until the shaking stops. The
NCC staff determines if the facility must be evacuated.
-----------------------------------------------------------------------------------
. Exodus has an Emergency Management/Contingency Plan to facilitate a
rapid recovery from a disaster. The NCC staff controls the recovery
procedures and coordinates access to the facility to clean up and restore
systems.
-------------------------------------------------------------------------------------------------------------------
. In the event of a local disaster, the Exodus Customer Advocate is the
prime contact for information and recovery coordination.
-------------------------------------------------------------------------------------------------------------------
Health and Safety . It is the Customers' responsibility to maintain safe work habits and a
safe work area in the IDC. However, Exodus has a first aid kit available
to Exodus Customers (see NCC staff).
-----------------------------------------------------------------------------------
. In case of a major injury or life-threatening emergency, contact the NCC
staff to quickly summon help.
-31-
EXHIBIT D
THE EXODUS SOLUTION
Internet Data Center Services
Companies who have built or enhanced their businesses around the Internet
require a new level of IT service Not only do they need real estate to house
their Web servers and reliable, scalable network access, but they need
specialized Internet systems management services to keep pace with their complex
Web operation requirements.
Exodus Internet Data Centers allow customers to enjoy all the benefits of the
Internet without the headache designing, installing, maintaining or securing an
Internet site.
Secure Co-location Services
Exodus provides scalable networking and facility solutions in different
configurations. Co-location space is available in a Fortune- 100-class data
center environment, with options including Virtual Data Centers for customers
with more than 10 servers, CyberCabinets housing four to ten servers and
CyberRacks for less than four servers.
The Exodus Internet Data Centers are built for continuous Internet operations by
offering:
. Power Management System - 1.6 Megawatts; customer-dedicated power
backed-up by multiple Uninterruptible Power Supplies (UPS)
. UPS - High-capacity diesel generator; customer-dedicated circuit breaker
protection; scalable customer power
. Fire Suppression System - State-of-the-art, gas-based fire protection
system; separate fire zones below floor and above the ceiling;
specialized heat/smoke sensors and automatic local fire department
notification
. Mainframe-Style Construction - Raised floor, HVAC and separate cooling
zones; seismically-braced racks
. Facility Security System - Motion sensors; secured access; video camera
surveillance; security breach alarm; 24 x 7 automatic local police
department notification
. Personal Security System - 24 x 7 card key customer access to Internet
Data Centers; 24 x 7 monitoring by on-site personnel
Unsurpassed Network Services
The Exodus network is scalable, fault-tolerant and based on open technologies,
providing customers with the reliable Internet access they need to conduct
business over the Web. Our network configuration, 60 percent headroom policy
and unprecedented peering agreements help avoid congestion, providing better
response time for customers. For example, not only is the Santa ▇▇▇▇▇ Internet
Data Center facility the most redundant networking facility that exists today,
it also has more bandwidth connected to the Internet than any other facility -
more than 1 Gbps per second.
Because Exodus uses redundant fiber paths from different vendors, there is no
single point of failure anywhere in the Exodus network. And network power is
localized and matched to customers' equipment requirements, offering seamless
integration and a flexible growth path for their Internet sites.
-32-
Managed Services
For companies who rely on the Internet but who would rather focus time and
energy on expanding their businesses instead of managing Web operations, Exodus
can handle the demands of Internet computing and provide a solid foundation for
e-commerce.
While management of Internet infrastructure is critical to operating a
successful Internet site, it can account for as much as 90% of the time and
resources allotted to site maintenance. That's why Exodus has a team of
dedicated Internet management professionals to administer customers' Internet
technologies, ensuring that they interact with legacy systems and keeping
Internet sites at top performance. Exodus customers are thus given the freedom
and flexibility they need to focus on their core businesses.
Exodus has deployed Computer Associates' Unicenter TNG enterprise management
solution across our globally distributed network of Internet Data Centers to
help provide customers with the following managed services 24 x 7:
. Network and Equipment Management/Setup - Administration, monitoring and
report generation
. Data Traffic Management - Bandwidth monitoring, load balancing,
marketing analysis and report generation
. Telco Line Management-Provisioning - Installation, tracking, monitoring,
fault analysis and disaster recovery
. System and Equipment Management - Setup, installation, performance
monitoring, traffic analysis, administration data backup and recovery
. Facilities Management - Scalable power management, fire suppression,
systems management and personnel security administration
. Application Systems Management - Internet application-to-database
integration, performance monitoring, backup/recovery, automatic
application restart, selective application systems maintenance and
upgrading
. Enterprise-Class Security - Design, setup, monitoring, notification,
maintenance and report generation
In addition to our internal management, Exodus also offers services specifically
designed to help you better manage your Internet network resources. These
services include:
. Internet site installation, administration and change management
. Internet service-level monitoring and reporting
. Internet business continuity services
. Internet event hosting
. Internet site security services
. Internet mirrored site management
. Internet site consulting services
EXODUS INFRASTRUCTURE
Part of the Exodus Solutions strategy is engineering and maintaining a superior
infrastructure to support continuous Internet operations. To achieve this goal,
we have made heavy investments in the infrastructure of both our facilities and
our network. Exodus' infrastructure consists of two major components:
nationwide
-33-
Internet Data Centers and a high-speed Internet backbone. Our infrastructure
design is based upon two key principles:
1. Engineer each Internet Data Center to eliminate any single point of failure
2. Reduce the distance from the Web surfer to the information on the Web by
combining world-class Internet Data Centers with a reliable high-speed Internet
backbone engineered solely for distribution of data.
Internet Data Center Description
Our state-of-the-art Internet Data Centers provide the reliable, redundant and
high-performance infrastructure demanded by today's mission-critical Internet
systems.
Exodus maintains a virtually endless stream of power through our Redundant Power
Management System (RPMS). Under this system, all co-location customers and
critical systems receive clean, conditioned power from the UPS batteries. The
RPMS UPS consists of multiple UPS systems maintained at a load not to exceed
75%; in the event one fails, the remainder can take on the load without
exceeding capacity. The batteries are charged either by utility power or by an
on-site backup generator. Additionally, we have a secondary generator on site
to provide backup to the primary generator. It can be hooked via umbilical cord
feed to supply the UPS systems. On a more specific level, all our customers
receive dedicated circuit breaker protection.
If the utility power fails, our generator maintenance contractors dispatch
generator technicians, spare parts and diesel fuel to replenish the generators,
giving Exodus the ability to run our Internet Data Centers indefinitely. By
implementing the power management system, we can move from utility to generator
power without observing any spike or fluctuation of electricity to our co-
located customers.
Each Exodus facility is built on raised floors and has seismically-braced racks,
cabinets and cages for protection against earthquakes. Furthermore, all
Internet Data Centers have high-volume, zoned temperature control systems. As
with the redundant power systems, Exodus has multiple Liebert 15-ton air
conditioning units, for a combined total of 75 tons of air condition output to
ensure proper heat dissipation. In the event one system fails, the other units
are able to assume the full load of cooling the co-located equipment.
In addition, Exodus has built a Redundant Fire Suppression System consisting of
smoke and heat sensors that trigger automatic fire department notification. The
primary system - an environmentally safe, gas-based Fire Master (FM200) fire
extinguishing system - is designed to eliminate a fire disaster but be harmless
to the systems co-located at the Internet Data Centers. As a backup, the
secondary system is a dry-pipe sprinkler system.
Each Internet Data Center also has a "nerve center" called the Network Control
Center (NCC). The entire facility, network and customer systems are carefully
monitored and managed by the NCC staff, available on a 24-hour basis via the
Exodus 1-800 Support Line. The NCC staff is assisted by expert network and
system engineers who can provide escalation support when needed.
To monitor the activity on each system in our Internet Data Centers, we have
implemented Computer Associates' Unicenter(TM) TMG network management platform
to facilitate the monitoring of our complete LAN and WAN. Unicenter TNG allows
us to monitor specific server processes at an 0/S network and application level
and take action on events created by these processes. Such actions might
include the start and restart of a process or even the sending of a page alert
to a customer.
In each Internet Data Center, Exodus has installed fiber optic cable from
various providers such as PacBell, TCG, ICG, MFS and ▇▇▇▇▇▇ Fiber, allowing
redundant fiber connections out to the IXPs. In this way, we eliminate any
single point of failure between our Internet Data Centers and the Internet.
The security and integrity of each Internet Data Center is maintained by video
surveillance cameras and security breach alarms with automatic police
notification and 24-hour personnel. There are several cameras mounted inside
and outside the facility and monitored by on-site personnel.
As a co-location customer, you are allowed 24-hour access to the facility
through a secure card key access system. This system allows only designated
company personnel physical access to our Internet Data Centers.
-34-
The physical environment of the Internet Data Centers allows for flexibility of
space depending upon how many servers customers wish to co-locate at our
facilities. For example, you can purchase a Virtual Data Center, a seven-by-
eight foot cage, for large applications. An alternative option for those not
requiring a large block of space but needing added security is an enclosed,
dedicated cabinet. The cabinet provides a full rack's worth of space and is
also under lock and key. If you are unsure of anticipated growth and looking
for an entry point, Exodus provides space in quarter-rack increments in our
common co-location area where multiple servers are housed on racks in a single
cage.
No matter what amount of space you require, Exodus is committed to helping you
manage your transition into our facility. Our Project Managers advise on and
facilitate the logistics involved in moving to our facility, such as ordering
new DNS registration, IP address allocation or DNS transition from another
provider.
In addition to the standard services, our support team can provide various
levels of system-related services, from tape backup to full systems and
applications management.
THE EXODUS NETWORK: PROVIDING THE FOUNDATION FOR
INFORMATION DISTRIBUTION
Fundamental to our ability to provide the shortest and most reliable paths from
Web users to our customers' Internet sites is our Open Peering Policy, which
drives us to seek peering agreements with as many providers as possible. In
fact, we peer with over 80 National and Regional Internet Providers at the
Internet Exchange Points (IXPs)-such as PB-NAP, ▇▇▇-▇▇▇▇, ▇▇▇-East, MAE-LA and
CIX- more than any other Internet service company. We have recently established
private multi-location peering with three National Backbone Providers, so we can
balance Internet traffic between IXPs and private peering links.
Exodus' network model can guarantee uninterrupted Internet operations, unlike
Inter-net Service Providers' (ISPs) networks, which aren't designed for Internet
commerce. Our distributed network design is crucial to businesses who rely on
the Web, such as online service providers, information publishers, entertainment
outlets and transaction processing providers, as well as electronic storefronts.
For these companies and others like them, continuous Internet access is mission-
critical to best serve their customers.
Traditional ISPs cannot effectively or efficiently support the needs of these
businesses. Why? Because their networks are designed around end-user Internet
access- which means the data being distributed is not always located near the
user and may therefore need to travel a significant distance over networks to
reach its destination. Exodus' network, on the other hand, is designed for
content distribution and pushes data out to major Internet Exchange Points
(IXPs), where it is interchanged between networks in order to get to end-users
faster and more reliably.
To complement our network design, we established our first Internet Data Center
in Northern California, where three of the six major IXPs in the United States
are located. This Internet Data Center has set the standards by which all of
our subsequent Internet Data Centers are modeled. Not surprisingly, our second
Internet Data Center was founded in Jersey City, New Jersey, close to the
second-largest concentration of IXPs in the United States. To keep up with
customer demand, Internet Data Centers have been built and opened in Seattle,
Irvine, Washington D.C. and Boston. Future facilities are also planned for
Europe and the Pacific Rim.
Beyond providing high-availability Internet connections, the Exodus network also
offers reliable and scalable bandwidth options. In contrast to ISPs, who
commonly over-subscribe their networks by nearly four times their overall
capacities, the Exodus network is under-subscribed by 50%, allowing room for
unanticipated bursts in demand. Systems are in place so that if at any time
traffic on the Exodus network exceeds 40% of its maximum volume, we add more
bandwidth to our network capacity. By using a dual connection into and out of
every Internet Data Center, 50% of network traffic is programmed over one line,
while the other 50% travels over a separate line, leaving a large percentage of
headroom on either line to handle spikes in demand. In the unlikely event that
one line fails, traffic is automatically re-routed to the other line. In
addition, private exchange peering and shortest-path routing ensure customers
are always securely connected to Exodus' DS3 WAN backbone.
-35-
Exodus' network will grow in step with its customers' needs. To keep up with
customer demand, Exodus will continue to peer with every ISP connecting to an
IXP. In addition, Exodus is continuing R&D efforts to stay on top of all new
quality-of-service technologies as they become available, including Tag
Switching, IP Switching, RSVP and VPN technologies.
EXHIBIT E
EXODUS COMMUNICATIONS, INC.
RULES AND REGULATIONS
All Exodus Customers and their Representatives, employees, contractors,
customers, agents and users of Customers' online facilities are subject to these
Rules and Regulations in connection with their use of Exodus' Internet Data
Center Services.
ACCESS TO INTERNET DATA CENTERS
Only those individuals identified by Customer as its Representatives may
access the Internet Data Centers. Customer may not allow any unauthorized
persons to access the Internet Data Centers.
. Customer will notify Exodus in writing of any change in Customer's
Representatives.
. Customer agrees to adhere at all times to security measures that have been
established by Exodus to protect the Internet Data Centers, its equipment
and its customers' equipment.
USE OF INTERNET DATA CENTER FACILITY
Customer must keep the Customer Area clean at all times. Customer may not
store any paper products or materials of any kind in the Customer Area (other
than equipment manuals).
Customer may not bring, or make use of, any of the following into the
Facility:
Food or Drink.
. Tobacco products.
. Explosives.
. Weapons.
. Chemicals.
. Illegal drugs.
. Alcohol or other intoxicants.
. Electro-magnetic devices.
. Radioactive materials.
. Photographic or recording equipment of any kind (other than tape back-up
equipment).
EQUIPMENT AND CONNECTIONS
All Customer Equipment must be clearly labeled with Customer's name (or
code name provided to Exodus) and individual component identification.
-36-
. Customers may not connect or disconnect any Customer Equipment or other
equipment except as specifically pre-approved by an authorized employee of
Exodus, at least 48 hours in advance of proposed installation, except as
otherwise approved by Exodus.
. All connections to rom Customer Equipment must be clearly labeled.
. Customer Equipment must be configured and run at all times in compliance
with the manufacturer's specifications, including power outlet, power
consumption and clearance requirements.
. Exodus makes available at its Data Centers certain equipment for the
temporary use by Customers at the Internet Data Centers. This equipment is
provided on an "AS IS" basis without any warranties of any kind. Customer
may borrow and/or use any Exodus property or equipment, at its own risk,
after receiving permission from Exodus.
SCHEDULED MAINTENANCE
Periodically, Exodus will conduct routine scheduled maintenance of its
Internet Data Centers and Internet Data Center Services pursuant to a schedule
posted on Exodus' World Wide Web site
(▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇+/techbackbone/maintenance.html). During such time,
----------------------------------------------------
Customer's Equipment may be unable to transmit and receive data and Customer may
be unable to access its Equipment. Customer agrees to cooperate with Exodus
during the scheduled maintenance so that Exodus may keep such period or time to
a minimum.
MISCONDUCT
Customer and its Representatives may not:
Misuse or abuse any Exodus property or equipment;
. Make any unauthorized use or interfere with any property or equipment of
any other Exodus customer;
. Harass any individual, including Exodus personnel and representatives of
other customers of Exodus; or
. Engage in any activity that is in violation of the law, or aid in criminal
activity while on Exodus property or in connection with the Internet Data
Center Services.
ONLINE CONDUCT
Customer will not, and will not permit any persons using Customer's online
facilities (including but not limited to Customer's Web site(s) and transmission
capabilities), to do any of the following:
Send Spam (unsolicited commercial messages or communications in any form).
. Infringe or misappropriate the intellectual property rights of others. This
includes posting copyrighted materials without appropriate permission,
using trademarks of others without appropriate permission or attribution,
and posting or distributing trade secret information of others in violation
of a duty of confidentiality.
. Violate the personal privacy rights of others. This includes collecting and
distributing information about Internet users without their permission,
except as permitted by applicable law.
. Send, post or host harassing, abusive, libelous or obscene materials or
take any similar actions.
. Intentionally omit, delete, forge or misrepresent transmission information,
including headers, return addressing information and IP addresses or take
any other actions intended to cloak Customer's or its users' identity or
contact information.
. Use the online facilities for any illegal purposes.
-37-
. Assist or permit any persons in engaging in any of the activities described
above.
If Customer becomes aware of any such activities, Customer will use best efforts
to stop such activities immediately, including, if necessary, terminating
Customer's user's access to Customer's online facilities.
MODIFICATION OF RULES AND REGULATIONS
Exodus reserves the right to change these Rules and Regulations at any
time. Customer is responsible for regularly reviewing these Rules and
Regulations. Continued use of the Internet Data Center Services following any
such changes shall constitute the Customer's acceptance of such changes.
-38-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXODUS COMMUNICATIONS, INC.
SERVICES ORDER FORM
-------------------------------------------------
Customer Name: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-------------------------------------------------
Billing Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
-------------------------------------------------
Form Date: August 30, 1999
-------------------------------------------------
Form No: Sharper8.30.99
-------------------------------------------------
Installation Site(s): Waltham, (Boston)
-------------------------------------------------
Type of Service(s): Additional
-------------------------------------------------
Original Service
Agreement Date:
-------------------------------------------------
INITIAL TERM: One year
-------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Services Brief Description IDC Qty Unit Price Extended Extended
Non-Recurring Monthly Fees
Fees
----------------------------------------------------------------------------------------------------------------------
EXO-VDC Virtual Data Center (7 x 8') BOS 2 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-VDC-SU Virtual Data Center Setup 2 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-POWER-20 20Amp Power Circuit (110v) 2 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-POWER-SU Power Circuit Setup 2 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-RACK-19 Additional 19" Rack 2 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-FAST-US 5 Mbps base Fast Ethernet 1 [**] [**]
with 100 Mbps burstability
----------------------------------------------------------------------------------------------------------------------
EXO-FAST-OV10 Variable Usage Cost Per 1 [**]
Megabit Above Base Amount
----------------------------------------------------------------------------------------------------------------------
EXO-FAST-SU Setup - Fast Ethernet Network 1 [**] [**]
----------------------------------------------------------------------------------------------------------------------
EXO-MMS-BAS Managed Monitoring Service 30 [**] [**]
Basic
----------------------------------------------------------------------------------------------------------------------
Total: [**] [**]
----------------------------------------------------------------------------------------------------------------------
COMPLETE THE FOLLOWING PAGE BEFORE SUBMITTING
* More detailed descriptions of the Services are contained in the specification
sheets and/or Statement of Work for each service, which are incorporated herein
by this reference.
CUSTOMER'S INITIALS DP
-------
-39-
EXODUS COMMUNICATIONS, INC.
SERVICES ORDER FORM
----------------------------------------------------
Customer Name: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------------------------------------
Form Date: August 30, 1999
----------------------------------------------------
Form No.: Sharper8.30.99
----------------------------------------------------
Requested Service Date: September 30, 1999
----------------------------------------------------
ORDER FORM TERMS AND CONDITIONS:
--------------------------------
(1) Customer hereby orders and Exodus Communications, Inc. (Exodus) agrees to
provide the Services described in the Order Form.
(2) The Customer representative signing below hereby acknowledges and agrees
that in the event that the Customer does not issue a purchase order prior
to the Requested Service Date, this Order shall serve as Customer's
purchase order. Customer further acknowledges that any additional or
conflicting terms and conditions contained in Customer's purchase order
shall not be applicable to the Services to be provided hereunder, even if
Exodus uses such purchase order for invoicing purposes.
(3) Neither Customer nor Exodus will be bound by this Order Form until an
authorized representative of each party has signed the Order Form.
(4) Changes or modifications to this Order Form will not be accepted.
THERE ARE SIGNIFICANT ADDITIONAL TERMS AND CONDITIONS, WARRANTY DISCLAIMERS AND
LIABILITY LIMITATIONS CONTAINED I N THE SERVICE AGREEMENT (EITHER THE MASTER
SERVICES AGREEMENT, INTERNET DATA CENTER SERVICES AGREEMENT AND/OR PROFESSIONAL
SERVICES AGREEMENT) BETWEEN CUSTOMER AND EXODUS. THERE ARE ALSO DETAILED
DESCRIPTIONS OF EACH SERVICE, AND SPECIFIC TERMS APPLICABLE TO EACH SERVICE,
CONTAINED IN THE SPECIFICATION SHEETS AND/OR STATEMENTS OF WORK FOR EACH
SERVICE.
DO NOT SIGN THIS ORDER FROM BEFORE YOU HAVE READ ALL OF THE PROVISIONS OF THE
SERVICE AGREEMENT AND SPECIFICATIONS SHEETS AND/OR STATEMENT OF WORK. YOUR
SIGNATURE BELOW IDICATES THAT YOU HAVE READ THE SERVICES AGREEMENT AND THE
SPECIFICATION SHEETS AND/OR STATEMENTS OF WORK AND AGREE TO BE BOUND BY THEIR
PROVISIONS.
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CUSTOMER EXODUS COMMUNICATIONS, INC.
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Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Signature:
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Print Name:
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Title: President Title:
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Date: 9/17/99 Date:
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* More detailed descriptions of the Services are contained in the specifications
above and/or Statement of Work for each service, which are incorporated herein
by this reference.
CUSTOMER'S INITIALS________
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