Exhibit 10.3
(INTERNAP LOGO)
INTERNAP MASTER SERVICES AGREEMENT
THIS INTERNAP MASTER SERVICES AGREEMENT (THE "AGREEMENT") is entered into by and
between Soundbite, a Massachusetts Corporation with its principal place of
business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ("Customer") and
Internap Network Services Corporation, including its affiliates and
subsidiaries, a Delaware corporation with its principal place or business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Internap"), with an Effective
Date of August 28, 2003 ("Effective Date"). In addition to the terms and
conditions of this Agreement, the following attached documents are deemed part
of this Agreement. In addition to any other attachments agreed to and executed
by the Parties Incorporating the terms set forth herein: Sales Order Form
(including all such forms executed hereafter by Customer for Services (defined
below) under this agreement (together, the "Sales Order Form")) - Attachment A:
applicable Services Level Agreement - Attachment B. Both Internap and Customer
are referred to herein individually as a "Party collectively as the "Parties."
The terms in the Sales Order Forms related to the actual rates to be charged and
the Services to be performed thereunder shall control as to the engagement
described in that Sales Order Form, but additional legal terms may only be added
by Amendment to this Internap Master Services Agreement even if they are to
apply only to one Sales Order Form. The terms and conditions set forth in this
Agreement and in any Sales Order Form hereunder shall control in the event that
there are different or additional terms set forth in any other purchases order
submitted by Customer or acceptance form or invoice issued by Internap.
1. SERVICES. Customer agrees to purchase the internet, connectivity services,
colocation services, firewall services, and any other services offered by
Internap to Customer described in the attached Sales Order Form or any
subsequent Sales Order Form (the "Services"). Internap agrees to provide such
Service in accordance with the applicable Service Level Agreement ("SLA").
2. CUSTOMER OBLIGATIONS.
2.1 Customer shall, at its own expense, provide all necessary preparations
required to connect to the Services and comply with Internap's installation and
maintenance specifications for delivery of the Services, Customer shall be
responsible for the costs of any relocation or removal of connectivity that
results from Customer's actions in addition to the costs for the original
circuit until such time as the relocated circuit is active. Additionally,
Customer shall provide Internap or its agents with reasonable access to
Customer's promises to perform any acts required under this Agreement.
2.2 Unless otherwise agreed in writing by an authorized representative of each
Party. If Customer provides its own router in conjunction with the Services
(e.g., a remote frame relay or private line connection from Customer's premises
to an Internap facility), then Customer is fully responsible for the
installation, maintenance and configuration of such Customer-provided router.
Subject to Internap's approval, Customer is required to use a router capable of:
(i) dealing with a full internet routing table; (ii) speaking BGPA in compliance
with the current internet RFC; (iii) receiving standard BGP communities; and
(iv) using such communities to effect Internap's routing policy.
2.3 If Customer multihomes to the Internap network, Customer will implement
Internap's Diversity Plus service or another multihoming configuration agreed to
by Internap and Customer.
2.4 Customer shall be responsible for all hardware, software, cabling, services
and companies not provided by Internap, including the selection, use
compatibility, monitoring, support and troubleshooting thereof. If such items
impair Customer's use of the Services, Customer shall remain liable for payment
in Internap for the Services. Upon notice from Internap that any such component
causes or is likely to cause a hazard, interference or obstruction of the
Services, Customer shall eliminate such item promptly, and Internap may
disconnect the Services immediately until such elimination occur. Internap shall
not be responsible: (a) for the installation, operation, management or
maintenance of any hardware, software, cabling or services not provided by
Internap in connection with the Services; (b) if any changes in the Services
cause hardware, software configurations, cabling or services not provided by
Internap to become obsolete or to require modification; (c) if any modification
or configuration performed by Customer of Internap or Customer provided
equipment impairs the performance of Services hereunder, or (d) for the
performance or availability or third party services or facilities provided
hereunder.
2.5 In accordance with Internap's and any other relevant equipment manufacture's
specifications, Customer shall maintain a suitable environment for any Internap
equipment housed on Costumer's premises and/or premises rented by Customer or
under its control. Customer shall be liable for any and all damages to Internap-
owned or based property that may be located on such premises, excluding
reasonable wear and tear.
3. COLOCATION SERVICES.
3.1 Customer may, pursuant to and as described in a particular Sales Order Form,
desire to sublease from Internap certain space (the "Space") to locate
certain equipment (the "Equipment").
3.2 Customer shall use the Space solely for the location and operation of the
Equipment. Customer shall not connect or interconnect the Equipment with any
other equipment or services of any third party without Internap's prior written
consent. Except as set forth in the applicable SLA, the Space is accepted "AS
IS" by Customer and Internap makes no representation or warranty as to the
fitness of the Space for Customer's intended use. Subject to Customer's
compliance with all applicable clearance and authorization procedures, access to
the Space shall be available twenty-four hours per day, seven days per week, but
shall be limited to those employees of Customer Identified to and approved by
Intenap in writing. If any employee of Customer causes any damage or threat of
damage to any equipment, individuals or the Space, in Internap's sole
discretion. Internap may rescind such employee's right to access to the Space.
Internap shall have the right to access the Space at any time for any purpose.
Internap shall have the authority (without subjecting Internap to any liability
related thereto) to suspend Customer's operations in and around the Space
if, in Internap's sole discretion, there arises any hazardous condition,
unsafe practices or emergency situation, Internap may, upon reasonable notice,
require Customer to relocate the Equipment to another space; provided, however,
that such other space shall afford reasonably comparable access, environmental
conditions and facilities. All reasonable costs of relocating the Equipment in
the above circumstance shall be born by Internap.
3.3 Neither Customer nor its agents or contractors shall make any alterations or
Improvements to the Space prior to submitting all plans and specifications for
such improvements to Internap and receiving Internap's prior written consent.
All fixtures, alterations, improvements and/or appurtenances attached to or
built into, on or about the Space shall be and remain part of the Space and
shall not be removed by Customer (unless otherwise directed by Internap). Upon
termination, expiration or cancellation of any sublease hereunder, except for
alterations as described herein, Customer shall return the Space to the manner
in which it existed upon commencement of the sublease, reasonable wear and tear
excepted. Customer shall be liable for all damage to the Space, including all
costs and expenses required to return the Space to its original condition.
3.4 Customer shall take all actions reasonably necessary to comply with the
requirements of any underlying agreement or instrument related to or encumbering
the Space upon notice of such requirements. Customer, its employees, agents and
contractors shall abide by its applicable laws, regulations, tariffs, rules and
policies related to this Space. In the event that any underlying agreement or
instrument terminates, the Sales Order Form for Customer's cologation of the
Space shall automatically terminate and any Services provided in connection with
the Space shall also terminate and Internap shall not be liable for any damages
related thereto.
3.5 To secure the payment of the Fees due under this Agreement, Customer hereby
grants to Internap a continuing security interest in and lien upon the
Equipment. In the event that Customer fails to pay Internap all undisputed
amounts owed under this Agreement when due, Customer agrees that, upon delivery
of written notice to Customer and a reasonable period to cure, Internap may (a)
restrict Customer's physical access to the Space and Equipment; and/or (b) take
possession of the Equipment and store it, at Customer's expense, and exercise
all remedies available under applicable law all without being liable for
prosecution or for damages.
4. FEES AND PAYMENT.
4.1 Customer shall pay the fees and charges set forth in the applicable Sales
Order Form, which shall include the costs of third party services or products,
including increases thereto (collectively, the "Fees"). Fees shall be invoiced
together with any applicable sales, use or either taxes at the beginning of each
month during which the Services are to be provided or at the end of the month
if the Services are usage based. If a Sales Order Form indicates a
minimum usage amount, such minimum usage fees shall be billed at the beginning
of each month during the Term of the applicable Sales Order Form. Fees and all
applicable taxes shall be paid to Internap at its address first above written or
at such other place as Internap may designate in writing. Payments are due net
thirty (30) days from the date of Internap's in voice and are subject to late
charges thereafter, calculated at the issuer of 1.5% interest per month of the
maximum rate permitted by law. Internap may suspend performance at provision of
the Services, terminate this Agreement or suspend payment of credits due
customer under the applicable SLA for late or nonpayment of Fees and customer
shall be liable for any attorneys or allocation agency fees incurred by Internap
in connection therewith. If Customer is delinquent in its
payments, Internap may, upon written notice to Customer, modify the payment
terms to require full payment before the further provision of any Services or
require other assurances to secure Customer's payment obligations hereunder.
Customer shall furnish financial information to Internap as Internap may, from
time to time, reasonably request. Such information shall be deemed Confidential
Information as defined herein. Any Services upgrades requested by Customer may
result in additional fees or other charges. Except as otherwise stated in a
particular Sales Order Form for the Services performed thereunder, Internap
reserves the right to change the Services it offers to its customers generally
and the related rates at any time.
4.2 Customer is responsible for any taxes, duties, fees or surcharges that are
imposed or authorized by regulatory and governmental entitles, including but not
limited to sales, use, gross receipts taxes, surcharges, franchise fees,
occupational, excise, universal service (state and federal) taxes and surcharges
and shall pay to Internap or reimburse Internap for amounts paid by Internap
relating to Services provided to Customer.
4.3 Billing for Internap or Internap provided third party connectivity services,
including all associated fees and charges, commences upon the earlier of (a)
delivery of the local loop/Telco connection; or (b) availability of the port
circuit at the Internap or connectivity partner service point for Customer
Provided Access orders, Billing for Internap colocation or Internap provided
partner services including all associated fees and charges commences upon the
delivery of the specified products and services.
4.4 Billing shall be provided to Customer through online access to Internap's
secure website. If Customer requests that Internap send a print copy of an
invoice, Customer shall be responsible for payment of an additional fees for
such documentation.
4.5 If Customer's Service is disconnected due to nonpayment or late payment by
Customer, Customer shall be responsible for all costs incurred by Internap
resulting from such disconnection in addition to payment for any free months of
Services received by Customer. Additionally, if Customer requests the
restoration of the Services, Customer shall be responsible for an additional fee
for such restoration.
5. LICENSE GRANT.
5.1 Grant of Rights. Upon payment of all applicable Fees and subject to the
terms and conditions of this Agreement. Internap grants Customer the
nonexclusive, non-transferable right to use the Services and to view the
performance date generated and compiled from Internap's technology and Services
hereunder for the term set forth in the applicable Sales Order Form solely for
Customer's own Internal business operations.
5.2 Conditions and restrictions. Other than those rights expressly granted
herein, Internap grants to Customer no other rights to the Services, express or
implied, and Internap reserves all rights in the Services not expressly granted
herein. Customer agrees that it shall not, nor shall it permit others to: (a)
alter, adjust, repair or circumvent any aspect of the Services; (b) copy,
modify, decompile, reverse engineer or disassemble the performance date or any
part thereof, Internap's proprietary technology or the Services provided
hereunder; (c) use or allow the use by Customer personnel or third party agents
or representatives of, the Services or performance data for the development or
modification of new or existing Customer or third party product lines, analysis
reports or for public release; or (d) recall, pass-through, sublicense, rent,
lease, timeshare or rebrand the Services or otherwise provide the Services to
any party not within Customer's enterprise and related personnel. Additionally,
Customer shall not use, nor shall it permit others to use the Services; (a) for
any unlawful, invasive, infringing, defamatory, fraudulent or obscene purpose;
(b) to send unsolicited, bulk email of any kind, regardless of the content or
nature of such messages, post the same or similar message to one or more
newsgroups or host or accept bulk replies resulting from such unsolicited email;
(c) to forge IP address information or mail headers; (d) to send any virus,
worm, trojan horse or harmful code or attachment; (e) to alter, steal, corrupt,
disable, destroy, trespass or violate any security or encryption of any computer
file, database or network; (f) so as to interfere with the use of the Internap
or connectivity partner network by other customers or authorized users; or (g)
in violation of the acceptable use policies or Internap's service providers
including its backbone providers. If Customer, or a third party through
Customer, violates any of the foregoing prohibitions, Internap may immediately
suspend the Services and/or terminate this Agreement without further liability
or obligation to Internap.
6. INTELLECTUAL PROPERTY RIGHTS. Internap reserves all rights not expressly
granted herein. Without limiting the generality of the foregoing, Customer
acknowledges and agrees that, subject to the license grant set forth in Section
5, Internap owns all right title and interest in and to the specifications,
technology, configurations, routing data and performance data related to the
Services, including but not limited to any and all modifications and derivative
works thereto. Additionally, subject to the license grant set forth in Section
5, Internap has all rights to the IP addresses provided hereunder.
7. TERM AND TERMINATION
7.1 Term. The term of this Agreement ("Term") shall commence upon Services
billing (as described in Section 4) of the initial Sales Order Form and shall
remain in effect perpetually unless terminated as provided hereunder. The term
of each Sales Order Form shall commence upon Services billing and shall remain
in effect for the period set forth in such Sales Order Form.
7.2 Termination Other Than for Cause. Either Party may terminate this Agreement
or any Sales Order Form hereunder by providing written notice to the Other Party
at least eighty (80) days prior to the requested termination date; provided,
however, that such termination shall not affect Customer's or Internap's
obligations hereunder, including Customer's payment of Fees for all Services
rendered prior to termination and payment of all applicable Termination and
Cancellation Fees, and Internap's provision of Services through the termination
date.
7.3 Termination for Cause. Either Party may terminate this Agreement or any
Sales Order Form hereunder upon written notice if (a) the Other Party materially
breaches this Agreement or the applicable Sales Order Form and fails to cure
such breach within thirty (30) days following receipt of notice of such breach;
(b) the other Party fails to function as a going concern or operate in the
ordinary course; (c) there is an assignment by the other Party for the benefit
of creditors; (d) there is a voluntary or involuntary bankruptcy filling by or
against the other Party; or (e) the other Party breaches the confidentiality
restrictions in Section 8. The Parties agree that Customer's solo remedy under
the applicable SLA. Is the provision of credits thereunder, and such remedy may
be provided in the period set forth in the applicable SLA. Failure to provide
credits within the thirty (30) days set forth if (a) above shall not be deemed a
failure to cure as set forth herein.
7.4 Termination Fees. Except where early termination occurs due to force majaure
or termination by Customer for Cause. If Customer terminates this Agreement or a
particular Sales Order Form prior to the end of the Term (as set forth in the
particular Sales Order Form). Customer shall pay all costs incurred by Internap
through the lease of equipment and/or the management of Internap or Customer
Provided Equipment in addition to all amounts then due and unpaid plus the
amount Customer would otherwise have had to pay to Internap over the remainder
of the Term of the terminated Sales Order Form or over the remainder of the Term
for each current Sales Order Form. Customer is terminating this Agreement (The
"Termination Fee"), calculated based on the remaining number of months of the
Term, at a monthly rate based on the greater of (i) the monthly average ▇▇▇▇▇▇▇▇
hereunder during the Term and (ii) the minimum monthly ▇▇▇▇▇▇▇▇ tier amount
Customer agrees to pay, any Termination Fees within ten (10) days of the
termination date, Customer acknowledges that such Termination Fee is not a
penalty is in the nature of liquidated damages.
7.5 Cancellation Fees. If Customer terminates or cancels this Agreement or a
Sales Order Form prior to activation of the port circuit at the Internap or
connectivity partner service point, Customer shall be liable for all costs
incurred by Internap through the date of Internap's receipt of Customer's
written notice of cancellation (the "Cancellation Fee"). Customer agrees to pay
any Cancellation Fee within ten (10) days of the cancellation date.
7.6 Effect of Termination. Termination of this Agreement or any Sales Order Form
shall not limit either party from pursuing other remedies available to it,
including injunctive relief, nor shall such termination relieve Customer of its
obligation to pay all fees that have accrued or are otherwise owed by Customer,
including Termination and Cancellation Fees. Upon expiration or termination of
this Agreement or any Sales Order Form; (i) the rights granted to Customer under
this Agreement or the particular Sales Order Form will cease immediately upon
the effective date of such termination and be of no further force or effect;
(ii) each party will promptly destroy or return to the other party all
Confidential Information belonging to such party and certify in writing to the
other party that all such Confidential Information has been so destroyed or
returned; (iii) Customer shall immediately surrender to Internap, in its
original condition, all equipment or other property owned or leased by Internap
including any IP space, that has been provided to Customer, and Internap or its
agents shall have the right to take immediate possession of such equipment and,
for such purpose, enter Customer's premises where such equipment is located,
free from all claims by Customer; and (iv) if Customer has Equipment on
Internap's property, Customer shall promptly remove all Equipment and other
property as directed by Internap and restore the Space to its prior condition.
Any Equipment or other property not so removed by Customer may be removed and
disposed of by Internap and Customer shall be liable for the cost of removal,
disposal and restoration of the Space to the original condition. If Customer
does not return all Internap property in its original condition, in Internap's
sole discretion, reasonable wear and tear when paid, Customer shall be
responsible for the replacement value of such property. Upon expiration or
termination of this Agreement the following Sections will continue and survive
in full force and effect 1-6, 7.4, 7.5, 7.6, 8, 9-12.
8. CONFIDENTIALITY. In connection with this Agreement, the Parties might obtain
information of the other Party which is confidential or proprietary in nature
("Confidential Information"). Such Confidential information shall include
without limitation; (a) any specifications, protocols configuration syntex and
routing data and tables related to Internap's P-NAP facilities, Assimilator
technology and network services, in addition to any performance data collected
and compiled by Internap as a result of such technology and services; (b) any
processes, methods, ideas, technologies, drawings, works of authorship, SLA,
inventions, know-how, software, algorithms and formulas related to the products
or services of either Party; (c) Information concerning research, development,
financials, procurement, customer lists, investors, employees, third party
relationships, forecasts, future product plans and marketing plans of either
Party; (d) any other information or material that is proprietary to either
Party; and (e) any other information that is marked confidential, restricted,
proprietary or with a similar designation. Such information shall be deemed
Confidential Information, whether or not described as such at the time of
communication. The Parties agree; (i) to take all reasonable steps necessary to
maintain the confidentiality of any such Confidential Information and not to
disclose such Confidential Information without the other Party's prior written
consent; (ii) do not use or copy any Confidential Information for any purpose
other than in direct furtherance of the purposes of this Agreement; and (iii)
that their obligations under this Section 8 shall survive the termination of
this Agreement for a period of three (3) years. Notwithstanding the foregoing,
each Party's confidentiality obligations shall not apply to the extent that
disclosed Confidential Information; (1) is already known to the other Party
without an obligation of confidentiality (2) becomes publicly available through
no fault of the other Party; (3) is received from a third party rightfully and
without regulations; (4) is independently developed without exposure to or use
of the Confidential Information; or (5) is required to be disclosed by law,
provided the disclosing Party is provided reasonable notice prior to the
disclosure and the non-disclosing Party has made a reasonable effort to quash
the legal requirement or otherwise prevent disclosure of its Confidential
Information through legal means. The terms and conditions of this Agreement
shall be deemed to be Confidential Information except that Internap may disclose
and list. Customer as a customer of the Services in connection with Internap's
advertising, publicity and promotion of the Services.
9. WARRANTY AND DISCLAIMER.
9.1 Subject to the limitations contained herein, Internap warrants that its
proprietary "NAP" facilities and Assimilator technology in the Services will in
all material respects, conform to the requirements of the applicable SLA.
9.2 Customer's sole and exclusive remedy and Internap's entire liability for
such breach of the above warranty or any claim related to the Services shall be
repair, replacement or crediting of the Services in accordance with the
applicable SLA. For equipment provided by Internap under the Customer Premise
Equipment program, Internap's responsibility and any representation or warranty,
is hereby expressly disclaimed, whether express or implied to the maximum amount
allowed by law.
9.3 WITH RESPECT TO THE SERVICES, ANY EQUIPMENT AND/OR THE SUBJECT MATTER OF
THIS AGREEMENT, THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE QUALITY OF
SERVICE, TITLE AND NON-INFRINGEMENT. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
10. LIMITATION OF LIABILITY. Under no circumstances shall Internap be liable,
either in contract, tort, warranty, strict liability, negligence or under any
statute, regulation or any other theory for; (a) unauthorized access,
alteration, theft, corruption or destruction of or to Customer's or its
customer's, and user's or business partner's computer files, databases, network,
transmission facilities or equipment; or (b) the content accuracy or quality of
the data transmitted through the Services. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OR EITHER PARTY UNDER THIS
AGREEMENT OR ANY SALES ORDER FORM SHALL BE LIMITED TO SIX MONTHS OF FEES PAID BY
CUSTOMER TO INTERNAP UNDER THE SALES ORDER FORM UNDER WHICH THE LIABILITY
ARISES, EXCEPT THAT IN THE CASE OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 11 NO SUCH LIMIT WILL APPLY. EXCEPT IN THE CASE OF CUSTOMER'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 HEREIN, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY THIRD PARTY CLAIM OR FOR ANY INCIDENTAL INDIRECT,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF, OF ANY NATURE WHATSOEVER
(INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA BUSINESS OR GOODWILL).
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF
ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH
DAMAGES.
11. INDEMNITY. Customer will indemnify and hold Internap harmless from and
against all loss, liability, damage and expense, including reasonable attorneys
fees, caused by Customer's officers, employees, agents, vendors, partners or
contractors arising from claims or demands; (a) for damages to property or for
injury or death to persons, including without limitation any disability, death
or Worker's Compensation benefits; (b) arising from data transmitted, received
or stored on or over Internap's network by or through Customer; (c) for any
damages or loss incurred directly try Internap as a result of a failure or
modification of any Customer Provided Equipment installed within Internap's
facilities or on Customers' premises, even when such Customer Provided Equipment
was installed with the permission or assistance of Internap; (d) or infringement
of a third party's proprietary rights based on any information, materials or
access to property provided by Customer; or (e) relating to the use by Customer
or any end user of Customer at any Services, provided under this Agreement.
12. GENERAL PROVISIONS.
12.1 Equitable Remedies. The Parties acknowledge that any threatened or actual
breach of a Party's Intellectual Property Rights; Confidential Information and
other proprietary rights by the other Party will constitute immediate,
irreparable harm, for which equitable remedies may be awarded by a court or
competent jurisdiction.
12.2 Revariability and Waiver. In the event any provision of this agreement is
held to be invalid or unenforceable, the remaining provisions of the Agreement
will remain in full force. The waiver by either Party of any default or breach
of this Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for nonpayment or breach of Internap's
proprietary right, no action, regardless of form, arising out of this Agreement
may be brought by either Party more than one year after the cause of action has
accrued.
12.3 Assignment. Neither this Agreement nor any rights granted hereunder may be
sold, leased, assigned, or otherwise transferred, in whole or in part by either
Party, and any such attempted assignment shall be void and of no effect, without
the advance written consent of the other Party, such consent not to be
unreasonably withheld or delayed, provided, however, that such consent shall not
be required if either Party assign this Agreement to a wholly owned subsidiary
or in connection with a merger, acquisition or sale of all or substantially all
of its assets, unless the surviving entity is a direct competitor of the other
Party.
12.4 Force Majeure. Neither Party shall be liable for any delay or failure in
performance due to war, acts of terror, riots, embargoes, strikes, accidents,
fire, acts of God, supplier or vendor failure, outage or malfunction of local or
longhaul telecommunications services, utility outage or other occurrence beyond
such Party's direct control (each a "Force Majeure Event"). The non-performing
Party shall notify the other Party of a Force Majeure Event, and if a Force
Majeure Event continues for more than fifteen (15) business days, Internap or
Customer may cancel this Agreement with no further liability (except for any
amounts due and not paid by Customer) as a result of such Force Majeure Event.
12.5 Attorneys' Fees. The prevailing party in any action to enforce the terms of
this Agreement will be entitled to reasonable attorneys' fees and other costs
and expenses incurred by it in connection with such action.
12.6 Successors and Assigns. All provisions of this Agreement shall be binding
upon, insure to the benefit of and be enforceable by and against the respective
successors and permitted assigns of Internap and Customer.
12.7 Notices. All notices required to be sent hereunder shall be in writing and
shall be deemed to have been given upon (i) the date sent by confirmed
facsimile, (ii) on the date it was delivered by courier, or (iii) if by
certified mail return receipt requested, on the date received, to the addresses
set forth above and to the attention of the (Illegible) of this Agreement and
the relevant Sales Order Form, or to such other address or individual
(Illegible) parties may specify from time to time by written notice to the other
Party.
12.8 Insurance. During the Term of this Agreement, each party will maintain, at
its own expense, commercial general liability insurance with policy limits of
not less than One Million Dollars (US $1,000,000,00) per occurrence. All such
policies of Customer shall name Internap, its parent, subsidiaries and
affiliated companies as additional insureds therein. Customer's insurance shall
be primary over Internap's insurance. Customer agrees to waive and to require
its insurers to waive any rights of subrogation or recovery they may have
against Internap, its agents, officers, directors and employees.
12.9 Governing Law. This Agreement and all matters arising out of or relating to
this Agreement, shall be governed by the laws of the State of Georgia excluding
its conflict of laws provisions. The Parties hereby irrevocably consent to the
sole and exclusive jurisdiction of and venue in the district courts for the
Northern District of Georgia, in Atlanta, Georgia, or if federal subject matter
jurisdiction does not exist, then in the courts of the State of Georgia, located
in ▇▇▇▇▇▇ County.
12.10 VPN. Sales of VPN Services and the related equipment must comply with all
U.S. Commerce Department regulations and U.S. State Department restrictions.
Certain hardware encryption products may not be exported to certain countries,
of may be exported only with individual licenses software that contains DES data
and/or encryption technology may not be exported outside the United States.
Customer is solely responsible for determining compliance and obtaining all
required approvals to facilitate the export of any VPN equipment to endpoints
outside the United States except as expressly set forth in the Sales Order Form.
12.11 Entire Agreement. This Agreement is the entire and complete Agreement
between the Parties with respect to the Services and subject matter hereof and
supersedes any prior or contemporaneous agreements or understandings between the
Parties, whether written or oral, and may not be modified in any way unless in
writing, signed and dated by the duly authorized representatives of the Parties.
No other act, document, usage or custom shall be deemed to amend or modify this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on and as of
the day and year first above written.
INTERNAP NETWORK SERVICES CORPORATION: SOUNDBITE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Market MP. Boston Title: President
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Printed Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇