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EXHIBIT 10.9
[QWEST LOGO]
QWEST INTERNET SOLUTIONS, INC.
Web Hosting and Internet Access Service Agreement
Section I. General Terms and Conditions
1. General. This Agreement (the "Agreement") is made as of the date set forth
below Qwest's signature (the "Effective Date") by and between Qwest Internet
Solutions, Inc., a Delaware corporation with an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Qwest") and the Customer ("Customer") listed below and on
Addendum B-1 attached hereto and made a part hereof. "Service" shall mean the
Qwest internet access and hosting services provided hereunder as described more
fully in the Service Description which is incorporated by reference herein and
which is attached hereto as Addendum B-2 (the "Service Description").
2. Rates and Charges; Payment. Customer agrees to pay all applicable rates
and charges set forth on each Addendum applicable to any Services acquired
hereunder. In addition to such fees, Customer shall be responsible for any and
all fees and taxes, if any, which may be imposed by any Internet registration
authority, in connection with the registration and maintenance of Customer's
domain name(s) and/or internet addresses, if any. Billing for the recurring
component of the Services shall be monthly in advance. Payment for the
non-recurring component of the Services, including initial set-up and
installation fees, shall be payable upon execution of the applicable Addendum.
Charges shall be due upon Customer's receipt of invoice and payable within
thirty (30) days of such date. Any amount not paid within such period shall
bear interest at the lesser of (i) the rate of 1 1/2% per month, or (ii) the
highest rate permitted by applicable law. If Customer disputes any portion of
an invoice, Customer shall timely pay the full invoiced amount and
provide Qwest, within thirty (30) days of payment, a written statement
supporting Customer's position regarding the dispute. Qwest shall determine in
its good faith business judgment whether such invoiced items were erroneous,
and shall issue a credit to Customer if it so determines. Qwest reserves the
right to change or modify the fees for the Services, or eliminate or modify
certain Services, upon not less than forty-five (45) days advance written
notice to Customer. In the event of notice of such change, Customer may
terminate this Agreement, without penalty, on the effective date of such change
upon at least thirty (30) days advance written notice to Qwest. Customer will
pay all sales and use taxes arising in connection with the Services. Customer's
execution of this Agreement signifies Customer's acceptance of Qwest's initial
and continuing credit review and approval. Qwest reserves the right to withhold
implementation of Services pending Qwest's credit review and may condition
initiation of Service on a deposit or such other means to establish reasonable
assurance of payment.
3. Term and Termination.
(a) This Agreement shall be effective upon the Effective Date and continue
until the expiration (or termination) of all Addenda issued pursuant hereto.
Unless otherwise set forth in any Addendum, the term with respect to each
individual Addendum (its "Term") shall commence on the date upon which the
Customer Equipment (as defined in Section II.1 hereof) is installed at Data
Center, and continue for a period of twelve (12) months. Any Addendum may be
terminated by either party at the end of its applicable Term by giving written
notice at least sixty (60) days prior thereto, but in the absence of such
notice, such Addendum shall automatically renew under the same terms and
conditions for a term equal to that of its original Term (such renewal Term
shall also be referred to herein as the "Term"). In the event Customer
terminates the Agreement with respect to any Addendum prior to the conclusion
of the Term, Customer shall pay to Qwest all charges for Services provided
through the effective date of such cancellation plus a cancellation charge
determined as follows: (a) if the Term for the cancelled Services is one (1)
year or less, then the cancellation charge shall be an amount equal to the
balance of the monthly Services charges (then in effect at the time of
cancellation) for such cancelled Services that would otherwise have become due
for the unexpired balance of the Term; (b) if the Term for the canceled
Services is longer than one (1) year and such cancellation becomes effective
prior to the completion of the first year of the Term, the cancellation charge
shall be an amount equal to the balance of the monthly Services charges (then
in effect at the time of cancellation) for such cancelled Services that
otherwise would have become due for the unexpired portion of the first year of
the Term, plus fifty percent (50%) of the balance of such monthly charges for
the remainder of the Term beyond the first year, and (c) if the Term for the
cancelled Services is longer than one (1) year and such cancellation becomes
effective after completion of the first year of the Term, the cancellation
charge shall be an amount equal to fifty percent (50%) of the balance of the
monthly Services charges (then in effect at the time of cancellation) for such
cancelled Services that otherwise would have become due and payable for the
unexpired portion of the Term. In addition, if Customer was granted a discount
or waiver with respect to any non-recurring charges based on the duration of
Customer's Term commitment (an "NRC Discount"), then Customer shall also pay an
amount equal to the NRC Discount. It is agreed that Qwest's damages if Services
are cancelled prior to the completion of the Term shall be difficult or
impossible to ascertain, thus the amounts set forth herein are intended to
establish liquidated damages in the event of cancellation and are not intended
as a penalty.
(b) Qwest may terminate this Agreement and/or cease or suspend the provision
of any Services upon default of Customer. Default includes (i) the failure to
pay any amount when due hereunder (after five (5) days prior notice of such
failure to pay); (ii) the filing of a petition in bankruptcy by or against
Customer; and (iii) any material default of this Agreement including but not
limited to violation of the AUP (as hereinafter defined) or Customer's
obligations under Section 4 or conduct that Qwest, in its sole discretion,
believes may subject Qwest to civil or criminal litigation, charges, and/or
damages. If Qwest has suspended the Services pursuant to this Section, Qwest
shall require a reconnection fee in order to resume service. Termination shall
not relieve Customer of its obligation to pay all fees for Services accrued and
owing up to and including the date of termination or otherwise payable pursuant
to Section 3.01 above, nor shall it preclude Qwest from pursuing any other
remedies available to it, at law or in equity.
(c) In the event a law or regulatory action prohibits, substantially impairs
or makes impractical the provision of any Services under this Agreement, as
determined by Qwest, Qwest may, at its option and without liability, terminate
this Agreement or modify any Services or the terms and conditions of this
Agreement in order to conform to such action (a "Regulatory Modification"),
provided however, that Qwest shall provide thirty (30) days prior written
notice to Customer of any such Regulatory Modification, except that Qwest may
reduce the foregoing notice period, if reasonably necessary under the
circumstances. Use by Customer of the Services for a period of thirty (30) days
after implementation of such Regulatory Modification shall constitute
acceptance of such changes.
4. Rights and Obligations of Customer. Customer represents and warrants that
(a) it has full right and authority to enter into this Agreement; (b) it will
not use the Services in any manner which is in violation of any law or
governmental regulation, or Qwest's Acceptable Use Policy ("AUP") as amended
from time to time by Qwest, which AUP is posted on Qwest's web site at
(▇▇▇.▇▇▇▇▇.▇▇▇); (c) the "Customer Data" (as hereinafter defined) will not
violate or infringe the rights of others, including, without limitation, any
patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or
other personal or proprietary right; (d) the Customer Data will not include
indecent or obscene material or constitute a defamation or libel of Qwest or
any third party and will not result in the obligation of Qwest to make payment
of any third party licensing fees; and (e) it will comply with all relevant
export and encryption laws and regulations of the United States ("Export
Laws"). For purposes of this Section 4, "Customer Data" shall mean the text,
data, images, sounds, photographs, illustrations, graphics, programs, code and
other materials transmitted through the Services hereunder.
5. Equipment or Software not provided by Qwest. Except only as may be set
forth in an Addendum to this Agreement, Customer shall be solely responsible
for the installation, operation, maintenance, use and compatibility of
equipment or software not provided by Qwest and Qwest shall have no
responsibility or liability in connection therewith. In the event that
equipment or software not provided by Qwest which impairs Customer's use of any
Services; (a) Customer shall nonetheless be liable for payment for all Services
provided by Qwest, and (b) any service specifications or service levels (and
corresponding service credits) generally applicable to the Services shall not
apply. Customer shall cooperate with Qwest in setting the initial configuration
for its equipment's interface with the Services and comply with Qwest's
instructions in connection therewith.
6. Rights and Obligations of Qwest; Disclaimer of Warranties
(a) As may be set forth in the Addendum, Qwest will secure domain names and
assign IP address space (subject to reasonable availability) for the benefit of
Customer during the Term, and Qwest will route those addresses
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on Qwest's network; it being understood and agreed that neither Customer nor
any of its "Users" (as defined in the AUP) shall have the right to route these
addresses. Customer understands and agrees that it shall have no ownership
interest in any IP address which Qwest obtains on Customer's behalf and that
Qwest shall retain ownership of all such IP addresses, and upon termination of
the Agreement, Customer's access to and utilization of such IP addresses shall
terminate.
(b) Customer agrees that it is solely responsible for assessing its own
computer and transmission network needs and the results to be obtained
therefrom and Qwest exercises no control whatsoever over the merchandise,
information and services offered or accessible on the Internet. Qwest shall
use commercially reasonable efforts to (i) monitor its network and its
interconnection to other networks and (ii) maintain its network, including
interconnections in an operational state, other than for scheduled maintenance,
in order to provide Services in accordance with any applicable service level
agreement (the "SLA"). CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR CUSTOMER'S USE
AND USERS' USE OF THE SERVICES, SOFTWARE OR EQUIPMENT PROVIDED BY QWEST, IF
ANY, AND THE INTERNET. CUSTOMER UNDERSTANDS AND AGREES FURTHER THAT THE
INTERNET (1) CONTAINS MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE
OFFENSIVE AND (2) IS ACCESSIBLE BY PERSONS WHO MAY ATTEMPT TO BREACH THE
SECURITY OF QWEST'S AND/OR CUSTOMER'S NETWORK. QWEST HAS NOT CONTROL OVER AND
EXPRESSLY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR SUCH
MATERIALS OR ACTIONS AND CUSTOMER AND CUSTOMER'S USERS ACCESS THE SERVICES AT
CUSTOMER'S OWN RISK. EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR IN THE
ADDENDUM, THE SERVICES, FACILITIES AND RELATED SOFTWARE AND/OR EQUIPMENT
PROVIDED BY QWEST, IF ANY, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION
GIVEN BY QWEST, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES
SHALL CREATE A WARRANTY. Some states do not allow the limitation of implied
warranty, and therefore certain provisions may not apply to customers located
in those states.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL QWEST, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST OR IMPUTED
PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES ARISING FROM OR RELATED TO THE SERVICES OR THIS AGREEMENT WHETHER FOR,
AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND
WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT
(INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY) WHETHER
OR NOT QWEST HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
QWEST'S LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE
AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR SERVICES UNDER THIS
AGREEMENT, OR IN THE CASE THAT THE CLAIM PERTAINS TO A PARTICULAR SERVICE, THE
AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO
WHICH THE CLAIM PERTAINS (THE "AFFECTED SERVICE"), SUCH AVERAGE MONTHLY CHARGE
TO BE CALCULATED DURING THE PERIOD FROM EXECUTION OF THE AGREEMENT OR THE
ADDENDUM PERTAINING TO THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE.
CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN
ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE.
Except as specifically set forth in the SLA, the foregoing sets forth
Customer's exclusive remedy for breach of this Agreement by Qwest. Some states
do not allow the exclusion of incidental or consequential damages, and
therefore certain provisions hereof may not apply to customers located in those
states. The provisions of this section allocate the risks between Qwest and
Customer and Qwest's pricing reflects the allocation of risk and limitation of
liability specified herein.
8. Indemnity. Customer agrees to defend, indemnify and hold Qwest and its
affiliates harmless from any and all liabilities, costs and expenses, including
reasonable attorneys' fees, related to or arising from: (a) any breach of this
Agreement by Customer or Users; (b) the use of the Services or the Internet or
the placement or transmission of any materials on the Internet by Customer or
Users, including but not limited to any Customer Data; (c) acts or omissions of
Customer, Customer's agents or contractors in connection with the installation,
maintenance, presence, use or removal of equipment or software not provided by
Qwest in connection with the provision of the Services; and (d) claims for
infringement of any third party proprietary right, including copyright, patent,
trade secret and trademark rights, arising from the use of any services,
equipment and software not provided by Qwest.
9. Non-Solicitation of Employees. Customer shall not, during the Term of
this Agreement and for a period of one (1) year thereafter, directly or
indirectly solicit, offer to employ, non engage as a consultant, any employee
of Qwest with whom Customer had contact pursuant to this Agreement.
10. Assignment. Customer shall not assign this Agreement or, unless set forth
in the Addendum, resell the right to use the Services, without the prior
written consent of Qwest.
11. Miscellaneous. Any dispute relating to this Agreement shall be submitted
for binding arbitration under the Commercial Arbitration Rules of the American
Arbitration Association and judgment on any award entered therein may be
entered in any court of competent jurisdiction. The venue for any such
arbitration shall be Denver, Colorado. In the event that any portion of this
Agreement is held to be unenforceable, the unenforceable portion shall be
construed as nearly as possible to reflect the original intent of the parties
and the reminder of the provisions shall remain in full force and effect.
Qwest's failure to insist upon strict performance of any provision of this
Agreement shall not be construed as a waiver of any of its rights hereunder.
Qwest is acting as an independent contractor and shall have exclusive control
of the manner and means of performing its obligations. Qwest will not be
responsible for performance of its obligations hereunder where delayed or
hindered by war, riots, embargoes, strikes or act of its vendors, suppliers,
accidents, acts of God, or any other event beyond its control. All notices,
including notices of address changes contemplated hereunder shall be sent by
registered or certified mail or by overnight commercial delivery to the address
set forth in this Agreement by each party. Notices to Qwest shall be sent to
the attention of its General Counsel. In any proceeding to enforce the terms of
this Agreement, the party prevailing shall be entitled to recover all of its
expenses, including, without limitation, reasonable attorney's fees. The terms
and conditions of this Agreement, including all Addenda, shall prevail
notwithstanding any different or additional terms and conditions of any
purchase order or other form for purchase or payment submitted by Customer to
Qwest. All terms and provisions of this Agreement which should by their nature
survive the termination of this Agreement shall so survive, including but not
limited to sections 3, 4, 6, 7, 8, 9, 10 and 11. This Agreement may be executed
in separate counterparts including facsimile copies, each of which shall be
deemed an original, and all of which shall be deemed one and the same
instrument and legally binding upon the parties. This Agreement, including the
AUP (as amended from time to time) and the Addenda attached hereto and made
part hereof, constitutes the entire agreement between Customer and Qwest with
respect to the Services. This Agreement shall be governed by the laws of the
State of New York. Any cause of action Customer may have with respect to the
Service must be commenced within one year after the claim or cause of action
arises or such claim or cause of action is barred.
SECTION II. HOSTING TERMS AND CONDITIONS
II.1. DEFINITIONS
(a) "Customer Equipment" shall mean certain electronic equipment of
Customer, including without limitation, computer servers and ancillary
equipment which is installed within the "Premises" (as hereinafter
defined) and is described in Addendum B-1.
(b) "Customer Representative" shall refer to a person that Customer
designates in writing as having authority to have access to the Data
Center and Premises on Customer's behalf. Customer may designate no
more than two (2) Customer Representatives, but may replace a Customer
Representative upon ten (10) business days prior written notice.
(c) "Customer Web Site" is a customer application which: (i) is comprised
of the Customer Data; (ii) resides on the Customer Equipment; and (iii)
is accessible via the World Wide Web.
(d) "Data Center" shall mean a particular Qwest facility within which the
Premises are located and which is identified in Addendum B-1.
(e) "Premises" shall refer to that area within a Data Center in which
Customer Equipment is installed pursuant to this Agreement.
(f) "Software" shall mean software (including third party software) and
related documentation, if any, provided by Qwest to Customer in
connection with any of the Services.
II.2 Grant of Licenses.
(a) Qwest hereby grants to Customer a license ("License") pursuant to which
Customer may, as set forth in the Service Description and for the
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Term set forth herein: (i) locate, install or have Qwest install the
Customer Equipment within the Premises; and (ii) access the Data
Center(s) for the purpose of installing, maintaining, and operating the
Customer Equipment and/or Customer Web Site within the Premises. The
License is subject and subordinate to the underlying ground or
facilities lease or other superior right by which Qwest has acquired its
interest in the Data Center.
(b) Qwest may install and implement such software and equipment as it deems
necessary and appropriate in order to properly access and monitor the
Customer Equipment and Customer Web Site in the course of providing the
Services hereunder and Customer grants Qwest all right and permissions
in connection therewith.
II.3. Permissible Use of the Data Center and Premises. Customer agrees to use
the Data Center and Premises only for the purposes described in Section II.2
above and to interconnect with Qwest's network. Customer's Representatives
shall not use any of the following in the Data Center or the Premises:
explosives, tobacco-related products, weapons of any sort, cameras, video tape
recorders, flammable liquid or gases or similar materials, electro-magnetic
devices, or other materials or equipment that Qwest, at any time and at its sole
discretion, deems prohibited. Customer will not alter or tamper with in any way
the property or space within the Data Center. Only Customer Representatives
shall be permitted to access the Premises and the Data Center on Customer's
behalf. Qwest, at its sole discretion may refuse to allow a Customer
Representative to enter the Premises or the Data Center.
II.4. Equipment Deployment and Maintenance.
(a) Prior to installation and thereafter upon Qwest's reasonable request,
Customer will provide Qwest a list of all Customer Equipment installed
or to be installed in the Premises. If Customer desires to make any
changes to its Customer Equipment ("Equipment Change"), it shall: (i)
advise Qwest in writing of the nature of any such change; and (ii) not
attempt to make such Equipment Change until Qwest approves such change
in writing. Qwest shall either approve or disapprove of such Equipment
Change within ten (10) business days of its receipt of such request.
(b) Qwest reserves the right, upon thirty (30) days prior written notice and
at its expense, to relocate any Customer Equipment ("Equipment
Relocation"); provided, however, that in the event of an emergency,
Qwest reserves the right to perform Equipment Relocation with no
advance notice to Customer. Qwest agrees to reimburse Customer for any
direct damages to Customer Equipment where such damage is a direct
result of Qwest's gross negligence or willful misconduct in connection
with such Equipment Relocation. No other payments shall be made by Qwest
to Customer with respect to damages arising out of such Equipment
Relocation, including without limitation compensation for any lost
business or lost profits due to damaged or manlfunctioning Customer
Equipment, as a result of any such Equipment Relocation. In the event
Qwest shall undertake an Equipment Relocation:(i) Qwest shall use
commercially reasonable efforts to move the Customer Equipment to a
location which shall afford comparable environmental conditions for and
accessibility to such Customer Equipment; and (ii) Qwest and Customer
agree to work together in good faith to minimize any disruption of
Customer's services as a result of such relocation.
(c) Qwest will periodically conduct routine scheduled maintenance within its
Data Centers, during which time Customer Equipment may be unable to
transmit or receive data and Customer may be unable to access its
Equipment. Qwest shall provide Customer with reasonable notice prior to
conducting such routine maintenance.
II.5. Customer Data and Software. If indicated on the Service Description,
Qwest will, on Customer's behalf, use commercially reasonable efforts to: (i)
make available and accessible on the Qwest network and/or World Wide Web, as
appropriate, the Customer Web Site; and (ii) reproduce the Customer Data on the
Customer Web Site. Customer shall deliver the Customer Data to Qwest: (i) in
digital or such other form as may be reasonably requested by Qwest; and (ii) in
the manner and meeting the specifications and delivery schedule which may be set
forth in the Service Description. Customer will at all times retain complete
copies of the Customer Data and if it should be lost or damaged while stored at
the Data Center, Customer shall redeliver the same to Qwest, as stated in this
Section II.5. Customer shall be solely responsible for the editorial supervision
of the Customer Data. Customer shall review the Customer Data prior to delivery
to Qwest to ensure that it complies with Customer's representations and
warranties as contained in this Agreement.
II.6. Software and Documentation Provided by Qwest. In consideration for the
payment of any applicable charges, Customer is granted the right to use the
Software, if any, strictly in accordance with and subject to any accompanying
documentation (the "Documentation"). Except as may be specifically set forth in
the Documentation, Qwest makes no representations and warranties with respect to
the Software. Qwest will pass through and assign to Customer all rights and
warranties provided by third party licensors of the Software to the extent that
such licensors permit such pass through and assignment. Any costs of such
assignment shall be borne by Customer. Except as specifically set forth herein,
Qwest has no obligation to provide maintenance or other support of any kind for
the Software, including without limitation any error corrections, updates,
enhancements or other modifications.
II.7. Limitation and Reservation of Rights. Nothing contained herein and no
use of the Premises or the Data Center by Customer or Customer's payment of any
charges shall create or vest in Customer any easement or other property right
of any nature in the Premises or Data Center or any property of Qwest or to
limit or restrict Qwest's right to access, operate and use the Premises, Data
Center and facilities therein at Qwest's discretion.
II.8 Installation of Customer Equipment.
(a) Qwest shall provide for the installation of Customer's Equipment as
stated in this Agreement and in the Service Description. Customer shall
give Qwest ten (10) days notice prior to the date of requested
installation.
(b) This Section II.8(b) shall apply only to customers who are responsible
for installation of the Customer Equipment as set forth in the Service
Description. Except as otherwise set forth in the Service Description,
Customer shall engineer, furnish, install and test, at its sole cost and
expense, all Customer Equipment. Customer shall give Qwest ten (10)
business days notice prior to commencing installation, and installation
and testing shall: (i) not begin until Qwest grants permission to
Customer to commence same; and (ii) shall at all times be under the
direct supervision of an authorized employee or agent of Qwest (the
"Escort"). All Customer Equipment shall be clearly labeled with
Customer's name and contact information. Upon completion of
installation, Customer shall remove all installation material from the
Data Center and Premises and shall restore same to their
pre-installation condition. Customer Equipment shall, at all times,
remain the property of Customer. No later than four (4) weeks prior to
the date proposed for installation of Customer Equipment, Customer shall
submit for Qwest's approval engineering plans and specifications
pertaining to Customer's use of the Data Center and Premises in the form
required by Qwest. No later than ten (10) business days after receipt of
such engineering plans and specifications, Qwest shall notify Customer
of its approval of such plans and specifications, or of any changes
required thereto ("Qwest Response"). The Qwest Response shall include
space assignment, any charges payable by Customer in order for Qwest to
prepare the Data Center or Premises for use by Customer (such as wiring,
construction of cage or dividing walls, etc.) and a date when the Data
Center Premises will be ready for installation of the Customer
Equipment. In the event the Qwest Response sets forth modifications to
Customer's initial submission and Customer does not object to such
modifications within five (5) business days of receipt of such Qwest
Response: (i) Qwest shall proceed with the work required to prepare the
Data Center and Premises for use by Customer; and (ii) Customer shall
reimburse Qwest for the full cost of such work within thirty (30) days
after receipt of Qwest's invoice therefor.
II.9. Maintenance of Customer Equipment. Except as specifically set forth in
the Service Description, Qwest shall have no obligation with respect to the
Customer Equipment and/or any Customer software, except that Qwest shall be
obligated to maintain the Customer Equipment in a reasonably safe condition. In
cases where Qwest provides maintenance services as set forth in the Service
Description, Customer is required to enter into the applicable vendor
maintenance agreement. Qwest's obligation to provide temporary replacement
equipment is subject to reasonable availability as contemplated in the Service
Description.
II.10. Access to Premises. Customer agrees to comply with the requirements of
any lease, rules and regulations of Qwest or its lessor, including but not
limited to the Qwest Standards for Facility Security and Rules of Conduct (the
"Standards"). A current copy of the Standards, which are subject to change at
Qwest's sole discretion, are set forth in the Service Description and are
available from the Qwest Call Management Center. Except as otherwise set forth
in the Service Description, Customer's employees, agents or contractors may
enter or work in the Data Center and Premises only when an Escort is present;
and except as set forth in the Standards, Customer agrees to pay the charges
for Escort services at Qwest's then prevailing time and materials rates.
Customer shall defend and indemnify Qwest from (i) any claims by Customer's
employees, agents and contractors except claims for death or injury proximately
caused by Qwest's gross negligence or willful act and (ii) any damages caused
by Customer, its employees, agents and contractors relating to any damages
caused by them to the Data Center, Qwest's equipment or equipment of Qwest's
customers and any other
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damages relating thereto. Qwest shall endeavor to make Escorts available on a
twenty-four (24) hour per day, seven (7) days per week basis, and shall provide
Data Center-specific contact telephone numbers to Customer. The Escort shall
have the authority, without subjecting Qwest to any liability, to suspend
Customer's work operations in and around the Premises if, in Escort's sole
discretion, any hazardous conditions arise or any unsafe or insecure practices
are being conducted by Customer's employees, agents or contractors. All of
Customer's work in the data Center and Premises shall be performed in a safe
and workmanlike manner.
II.11. EMERGENCIES. In the event of any emergency event that either is or will
immediately become service affecting, Qwest's work shall take precedence over
Customer's operations on the Premises; and Qwest may rearrange the Customer
Equipment (with the same care used by Qwest in rearranging its own equipment) as
is reasonably necessary to respond to the emergency. In the event of any
emergency involving the Customer Equipment, Qwest shall use reasonable
commercial efforts to notify Customer prior to performing whatever repair and
maintenance is necessary to respond to the emergency ("Emergency Measures"),
and Customer authorizes Qwest to take such repair and maintenance actions,
irrespective of whether Qwest actually provides notice.
II.12. QWEST INSPECTION AND REMEDIAL RIGHTS. Qwest may make periodic
inspections of any part of Customer Equipment upon reasonable advance notice
to Customer, and Customer shall have the right to be represented during such
inspections; provided, however, that if, in Qwest's judgment, such notice is not
commercially practicable, Qwest may make such inspection immediately but shall
thereafter provide notice of the inspection to Customer. The making of periodic
inspections or the failure to do so shall not operate to impose upon Qwest any
liability of any kind whatsoever, nor relieve Customer of any responsibility,
obligation or liability assumed under this Agreement. If any part of the
Customer Equipment is not installed and maintained in accordance with the terms
and conditions hereof, and Customer has not corrected such non-compliance
within ten (10) days after receipt of notice thereof from Qwest, Qwest may, at
its option: (i)terminate the Agreement; or (ii) correct said condition at
Customer's expense. If such condition poses an immediate threat to the safety
of Qwest's employees or the public, interferes with the performance of Qwest's
network facilities, or poses an immediate threat to the physical integrity of
Qwest's facilities, Qwest may, without providing Customer prior notice, perform
such work and take such action that it deems reasonably necessary ("Corrective
Action"). In the event Qwest shall engage in such Corrective Action, Qwest
shall not be liable for damage to Customer Equipment or for any interruption of
Customer's services. As soon as practicable after taking such Corrective
Action, Qwest will advise Customer in writing of the work performed or the
action taken and Customer shall promptly reimburse all reasonable expenses
incurred by Qwest in connection therewith.
II.13. REMOVAL OF CUSTOMER EQUIPMENT. Upon termination of this Agreement,
except in the case of Premium Services (as defined in Addendum B-2), Customer
shall remove the Customer Equipment within ten (10) business days and Customer
shall remain liable for any charges associated therewith as set forth in the
Agreement. If Customer fails to remove the Customer Equipment within such
period, such Customer Equipment shall be deemed abandoned; and Qwest may,
without liability, remove the Customer Equipment, and Customer shall reimburse
Qwest for all costs associated therewith. In the event of non-payment by
Customer of sums overdue for more than sixty (60) days, or if Customer is
otherwise in breach of the Agreement, Qwest may, upon ten (10) days written
notice to Customer, either retain any Customer Equipment or other assets of
Customer then in Qwest's possession and sell them in partial satisfaction of
such unpaid sums or request Customer to remove Customer Equipment from Qwest's
premises within ten (10) days of such request. If Customer fails to so remove,
Qwest may deliver the Customer Equipment to Customer at the address of Customer
set forth in the Agreement, and Customer shall be obligated to accept such
delivery; provided, however that Customer shall be fully responsible for all
expenses associated therewith.
II.14. CONFIDENTIALITY. During the Term, each party will have access to certain
confidential information of the other concerning such party's business,
including such party's products, services, technical data, trade secrets,
inventions, processes, and customer information. All such information shall be
deemed "Confidential Information." Each party shall use the Confidential
Information to the other solely to perform this Agreement, and all Confidential
Information shall remain the sole property of the respective parties. With
regard to Confidential Information, the parties shall use the same care as it
uses to maintain the confidentiality of its own confidential information, which
shall be no less than reasonable care, and shall not make disclosure of the
Confidential Information to any third party without the written consent of the
Disclosing Party, except to employees, consultants or agents to whom disclosure
is necessary to the performance of this Agreement and who are bound by a duty
of confidentiality. Information shall not be deemed confidential if it (1) is
known to the receiving party prior to receipt from the disclosing party as
reasonably evidenced by such party; (2) becomes known to the receiving party
from a source other than one, to receiving party's knowledge, who is under an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be confidential other than by a breach of the
receiving party; (iv) is independently developed by receiving party other than
by a breach of this Agreement.
II.15. INSURANCE. Customer shall procure and maintain throughout the Term, the
following insurance as provided by an insurance company or companies reasonably
satisfactory to Qwest:
(a) standard form property insurance insuring against perils of fire,
vandalism, and malicious mischief extended coverage ("all risk")
covering all Customer Equipment located in the Premises in an amount not
less than its full replacement cost.
(b) Commercial general liability insurance insuring against any liability
arising out of the license, use or occupancy of the Premises by Customer
in an amount of not less than $2 million combined single limit coverage
for injury or death of one more persons in an occurrence, and for damage
to tangible property (including loss of use) in an occurrence.
(c) professional liability insurance (including Multimedia Errors and
Omissions insurance) insuring against any liability arising out of the
use or publication of the Customer Data or the Customer Web Site at the
Data Center. Such insurance shall be in the amount of $1 million per
occurrence and $1 million in the aggregate.
(d) worker's compensation insurance as required by any applicable worker's
compensation or similar statute and employers liability insurance with
minimum limits of $1 million per occurrence.
(e) business automobile insurance in an amount not less than $1 million per
occurrence covering all autos used at the Premises, including owned,
non-owned and hired autos.
Customer shall provide a certificate of insurance evidencing the above
requirements and in the case of (2) and (3) above, the policies shall (a) list
Qwest as an additional insured, (b) contain a cross liability provision, and
(c) contain a provision that such insurance shall be primary and
noncontributing with any other insurance available to Qwest. All policies shall
require notice to Qwest of not less than sixty (60) days prior to any
cancellation or material change in any coverage.
CUSTOMER
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CFO
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Name and Title
2/29/00
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Date
QWEST INTERNET SOLUTIONS, INC.
/s/ [Signature Illegible]
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Signature
5/1/00
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Date