Exhibit 10.1: Master Services Agreement, dated August 4, 2005, between NS8
Corporation and SAVVIS Communications Corporation
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT, together with all Service Addenda, Service
Order(s) and exhibits attached hereto and incorporated herein from time to time
(collectively, "Agreement"), is entered into this _____ day of _____,
("Effective Date") by and between the SAVVIS Communications Corporation
("SAVVIS") and NS8 Corporation ("Customer").
1. Services; Additional Services; Service Level Agreement.
A. Services; Service Level Agreement. SAVVIS, through itself and/or any of
its affiliates, agrees to provide Customer the services ("Service" or
"Service(s)") in accordance with this Agreement. For purposes of this
Agreement, "Service Addendum" shall refer to the specific terms and conditions
and any applicable service level agreement ("SLA") attached thereto and
incorporated herein, that applies to the Service(s) purchased by Customer.
"Service Order" shall collectively refer to any service order(s), authorization
form(s) or order form(s) that describes and sets forth the pricing for the
Service(s) purchased by Customer. Service Orders shall be effective as of the
date of acceptance by SAVVIS. SAVVIS reserves the right to accept or reject any
Service Order. The parties acknowledge that SAVVIS' obligation to provide the
Service(s) is subject to its having obtained all of the requisite licenses and
consents related thereto.
B. Additional Services. From time to time, Customer may order additional
Service(s) by executing a Service Order, and, if necessary a Service Addendum.
In addition, any service requested by Customer and performed by SAVVIS beyond
that explicitly described in the applicable Service Addenda or Service Order(s)
shall be at an additional cost, and Customer shall reimburse SAVVIS for such
additional costs incurred. The rates and description for such additional
services, if any, are attached to the applicable Service Addendum, or shall be
mutually agreed upon by the parties in a separate agreement.
2. Term. The term of the Agreement shall commence on the Effective Date and
shall continue thereafter until the expiration of the last expiring Service
term, as contained in the Service Addendum or Service Order, unless earlier
terminated in accordance with this Agreement ("Agreement Term"). SAVVIS reserves
the right to change its rates or the SLA during any Service's renewal term by
notifying Customer at least ninety (90) days in advance of the effective date of
such rate or SLA change.
3. Billing; Payment; Deposit; Business Downturn.
A. Billing. Billing for each Service shall commence on the Billing
Commencement Date or Service Commencement Date, as defined in the applicable
Service Addendum. In the event SAVVIS is unable to deliver the Service(s) due
to any reason, issue or delay caused either directly or indirectly by the
Customer or its agents, such Service(s) shall be deemed delivered and SAVVIS
shall commence billing when SAVVIS is ready to deliver such Service(s). Customer
will be invoiced monthly for all amounts due and owing to SAVVIS. All invoices
shall be deemed final and binding unless Customer notifies SAVVIS in writing of
any alleged discrepancies no later than sixty (60) days from the date of such
invoice(s).
B. Payment. All payments are due within thirty (30) days after the date of
the invoice(s) without set-off or demand ("Due Date"). The charges and fees
under this Agreement are exclusive of any national, state, municipal, or other
governmental excise, sales, value-added and occupational taxes and other fees,
surcharges and levies, third party installation charges, and/or Inside Wiring
Pass Thrus, all of which Customer shall be responsible for and will pay in full.
Customer will be deemed to be in default hereunder if payment is not received by
the Due Date and, in addition to its other remedies, SAVVIS may charge Customer
interest equal to 1/2% per month on any amount(s) past due.
C. Deposit. The provision of Service(s) under this Agreement is contingent
upon SAVVIS' initial and continuing credit approval of Customer. At any time
during the Agreement Term, SAVVIS may require a deposit or other acceptable form
of security if it reasonably deems itself insecure with respect to Customer's
ability to pay. In addition to its termination rights under Section 6 of this
Agreement, SAVVIS may, immediately and without notice, suspend the Service(s) if
Customer fails to comply with these security obligations. During any period of
suspension, no service interruption shall be deemed to occur.
D. Business Downturn. In the event that a business downturn beyond
Customer's reasonable control significantly reduces the size or scope of
Customer's operations and the volume of Services required by Customer
(notwithstanding Customer's best efforts to avoid such a downturn), SAVVIS and
Customer will cooperate in efforts to develop a mutually agreeable alternative
proposal that will address the concerns of both parties and comply with all
applicable legal and regulatory requirements and restrictions. By way of
example and not limitation, such alternative proposal may include changes in
discounts, credits, revenue and/or volume commitments, the term, and other
provisions. This provision shall not apply to a change resulting from a
decision by Customer to: (i) reduce its overall use of telecommunications
services except as result of business downturn: (ii) alter its
telecommunications network architecture except as result of business downturn;
or (iii) transfer portions of its traffic or projected growth to carriers other
than SAVVIS. Customer must give SAVVIS immediate written notice of the
conditions it believes will require application of this provision and may not
invoke it more than one (1) time during the Term. This provision does not
constitute a waiver of any charges, including underutilization charges, incurred
by Customer prior to the time the parties mutually agree to amend or replace
this Agreement. If, after negotiating in good faith, the parties do not
mutually agree on an alternative proposal, all terms and conditions of this
Agreement shall remain in full force and effect.
4. Compliance with Laws and Acceptable Use.
A. SAVVIS' network and Service(s) may only be used in accordance with the
Agreement. Customer and its customers and end-users will comply at all times
with all applicable laws and regulations, SAVVIS' operating procedures, and
SAVVIS' Acceptable Use Policy located on its website at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇/▇▇▇.▇▇▇▇ and incorporated herein by
reference ("AUP"). Customer or any other entity or person shall not use the
Service(s) or SAVVIS' network in a fraudulent manner or in a manner that
violates the AUP or any applicable law or regulation, or otherwise exposes
SAVVIS to legal liability, whether or not this use is authorized or consented to
by Customer (each such circumstance, "Service Misuse").
B. Customer acknowledges that SAVVIS exercises no control whatsoever over
the content (any and all content of Customer or Customer's end users and/or
customers, including but not limited to data, text, multimedia images (e.g.
graphics, audio and video files), software, applications, or other materials, or
any content shared or processed on equipment under the control of SAVVIS on
behalf of Customer (collectively "Content")), and that it is the sole
responsibility of Customer to ensure that the information and Content it and
its end-users and/or customers transmit, receive, or use complies with the AUP
and all applicable laws and regulations.
C. In addition to any other remedies available at law or in equity, SAVVIS
may immediately and without notice suspend or block access to a Service or all
Services (each such circumstance, a "Service Suspension") and/or restrict
Customer's access to the Internet Data Center(s), if deemed reasonably necessary
by SAVVIS to prevent any harm to SAVVIS, its employees and its business for any
of the following reasons: (a) to comply with any law, regulation, court order,
or other governmental request or order requiring immediate action; (b) to
prevent interference with, damage to, or degradation of SAVVIS' network; (c) to
eliminate a hazardous condition; (d) if required by SAVVIS' vendor; or (e)
Service Misuse. Customer shall not be relieved of its payment obligations
hereunder during any period of Service Suspension.
D. Notwithstanding anything to the contrary contained in this Agreement,
SAVVIS reserves the right to immediately terminate the Services or Agreement in
the event that SAVVIS becomes aware that Customer, or other persons making use
of Customer's Services are in breach of this Section.
5. DISCLAIMERS OF WARRANTY.
A. THE SERVICE(S) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND SAVVIS MAKES
NO WARRANTIES OR REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICE(S), SOFTWARE
OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THROUGH USE OF THE SERVICE(S),
SOFTWARE OR EQUIPMENT. SAVVIS DOES NOT WARRANT THAT THE EQUIPMENT OR SOFTWARE
WILL BE COMPATIBLE WITH ANY EQUIPMENT OR SOFTWARE NOT FURNISHED BY SAVVIS.
SAVVIS DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTIBILITY,
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ALL
IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
SAVVIS SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF
INFORMATION OBTAINED THROUGH ITS SERVICE(S), THE USE OF WHICH IS AT CUSTOMER'S
OWN RISK.
B. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE,
INTERRUPTION OR DEFICIENCY OF SERVICE(S) OR FAILURE BY SAVVIS TO MEET THE TERMS
OF AN APPLICABLE SLA, SHALL BE THE REMEDIES PROVIDED IN THE SLA; PROVIDED THAT
ANY REMEDIES OR CREDITS CONTAINED IN THE SLA ARE NOT AVAILABLE FOR OUTAGES,
INTERRUPTIONS OR DEFICIENCIES OCCURRING DURING ANY PERIOD IN WHICH CUSTOMER'S
ACCOUNT HAS A PAST DUE BALANCE OR THE CUSTOMER IS OTHERWISE IN BREACH OF THE
AGREEMENT. SAVVIS, ITS SERVICE PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL
OTHER LIABILITIES OR REMEDIES FOR SUCH OUTAGES, INTERRUPTIONS OR DEFICIENCIES OF
SERVICE.
C. SAVVIS DOES NOT AND CANNOT CONTROL THE PERFORMANCE OF ANY DATA, PRODUCTS,
OR SERVICE(S) CONTROLLED OR PROVIDED BY THIRD PARTIES. AT TIMES ACTION OR
INACTION BY THIRD PARTIES CAN IMPAIR OR DISRUPT SAVVIS' SERVICE(S). SAVVIS
MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE
DATA, PRODUCTS, OR SERVICE(S) CONTROLLED BY ANY THIRD PARTY, INCLUDING THE
PROVIDERS OF TELECOMMUNICATIONS OR NETWORK PRODUCTS OR SERVICES. SUCH DATA,
PRODUCTS, AND SERVICES ARE NOT PROMISED TO BE FREE OF ERROR OR INTERRUPTION, AND
SAVVIS, ITS SERVICE PROVIDERS AND SUPPLIERS EXPRESSLY DISCLAIMS ALL LIABILITIES
ARISING FROM ANY SUCH ERROR, INTERRUPTION, OR OTHER FAILURE. CUSTOMER
ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE
REASONABLE CONTROL OF SAVVIS, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK
SYSTEMS NOT CONTROLLED BY SAVVIS, SHALL BE CONSIDERED A FORCE MAJEURE HEREUNDER
AND NOT A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY
PROVIDED IN AN APPLICABLE SLA. FURTHER, SAVVIS DISCLAIMS ALL RESPONSIBILITY,
WARRANTIES AND LIABILITY FOR DELAY, INTERRUPTION OR INEFFICIENCY ATTRIBUTABLE TO
CUSTOMER'S HARDWARE, SOFTWARE OR ANY THIRD PARTY SERVICE PROVIDER.
6. Default.
A. Termination by SAVVIS. SAVVIS may terminate this Agreement without
liability, immediately upon notice upon Default by Customer. Default means (a)
the failure by Customer to (i) pay any amounts when due; (ii) comply with
Section 4 Compliance with Laws and Acceptable Use; or (iii) perform any material
obligation under this Agreement which failure is not remedied within thirty (30)
days after receipt of written notice from SAVVIS (unless a shorter notice period
is expressly set forth in the Agreement, in which case the shorter notice period
shall apply); or (b) Insolvency (as hereinafter defined). As used herein,
"Insolvency" shall refer to any one of the following events: (i) Customer files
a voluntary petition in bankruptcy or an involuntary petition is filed against
Customer; (ii) Customer is adjudged bankrupt; (iii) a court assumes jurisdiction
of the assets of Customer under federal reorganization act; (iv) a trustee or
receiver is appointed by a court for all or a substantial portion of the assets
of Customer; (v) Customer becomes insolvent or suspends business; or (vi)
Customer makes an assignment of its assets for the benefit of its creditors.
Termination by SAVVIS shall not preclude SAVVIS from pursuing any other rights
or remedies available to it at law or in equity.
B. Cancellation and Early Termination Charges. (i) Pre-Delivery. In the
event Customer terminates a Service prior to the delivery of or deemed delivery
of such Service, Customer shall owe SAVVIS a pre-delivery cancellation fee, if
any, as set forth in the applicable Service Addendum and all third party costs
and fees. (ii) Post Delivery. If after the delivery of or deemed delivery
of such Service by SAVVIS, SAVVIS terminates this Agreement for Customer
Default, or Customer terminates this Agreement for convenience, Customer shall
be liable and shall pay to SAVVIS, at SAVVIS sole option, and within thirty (30)
days of such termination, (a) the termination charges set forth in the
applicable Service Addendum, or (b) all of the following shall be immediately
due and payable by Customer: (y) the cumulative total of the balance of all
monthly charges remaining on this Agreement through the end of the applicable
Service Term(s); plus (z) any charges accrued but unpaid as of the effective
date of termination. Customer acknowledges that the amounts payable pursuant to
this Section 6(B) are equitable compensation to SAVVIS and are intended to
reasonably compensate SAVVIS for the losses which are occasioned by Customer's
failure to honor Customer's obligations hereunder. In the event Customer
terminates for convenience, SAAVIS acknowledges and agrees that the amounts
payable by Customer to SAAVIS pursuant to this Section 6(B) are the full and
only amounts of compensation payable to SAVVIS.
7. Maintenance. Routine maintenance and periodic system repairs, upgrades,
and reconfigurations may result in the temporary impairment or interruption in
Service(s). As a result, SAVVIS does not guarantee continuous or uninterrupted
Service(s) and reserves the right from time to time to temporarily reduce or
suspend Service(s); provided, however that SAVVIS will attempt to give Customer
advance notice of any such impairment or interruption in Service(s) to the
extent reasonably practicable under the circumstances.
8. Indemnification. Customer shall indemnify, defend and hold SAVVIS, its
affiliates, officers, directors, licensees, licensers, and vendors harmless from
any and all claims, losses, damages and expenses, including, without limitation,
reasonable attorney's fees and court costs, or liabilities arising from or
related to: (i) Service Misuse or a violation of any other provision of this
Agreement; (ii) any claim of infringement of any intellectual property or other
proprietary interest resulting from the possession or use of any Service(s),
software or equipment; (iii) the Content; (iv) any acts or omissions of
Customer, its employees, agents, contractors, invitees, licensees, visitors,
and/or customer/end-users; and/or (v) any injury or damage to the person,
property, or business of SAVVIS, its employees, agents, contractors, invitees,
licensees, visitors, and/or customer(s)/end-user(s). SAVVIS shall indemnify,
defend and hold Customer its officers, directors, and employees harmless from
any and all claims, losses, damages and expenses, including, without limitation,
reasonable attorney's fees and court costs, or liabilities arising from or
related to any third party claim of infringement of any U.S. patent or copyright
resulting from the software or equipment supplied or otherwise provided by
SAVVIS as part of the Services.
9. Governing Law. This Agreement shall not become a binding obligation of
SAVVIS until it has been executed by an officer of SAVVIS. The parties agree
that any dispute arising under this Agreement shall be governed by and construed
in accordance with the laws of the State of Missouri, except for its principals
for resolving conflicts of law. The parties agree that any disputes arising
under this Agreement shall be resolved in the state or federal courts of the
State of Missouri.
10. Assignment. Neither party may assign this Agreement or any portion
hereof without the other party's prior written consent, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, either party may
assign this Agreement or a portion thereof: (i) in the event of a merger in
which the party is not the surviving entity; (ii) in the event of a sale of all
or substantially all of its assets; or (iii) to any party that controls, is
controlled by or is in common control with such party; provided that, in the
event of an assignment by Customer pursuant to (i), (ii) or (iii) above, the
assignee must have at least the same level of financial, managerial and
technical capabilities as Customer, as determined by SAVVIS in its sole
discretion. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
11. Limitation on Liability.
A. IN NO EVENT SHALL SAVVIS, ITS AFFILIATES, SERVICE PROVIDERS, SUPPLIERS OR
AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR
REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM
DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTION, HOWEVER CAUSED,
ARISING FROM OR RELATED TO THE SERVICE(S) OR THIS AGREEMENT, REGARDLESS OF THE
LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY,
INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER
LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER
SAVVIS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR
DAMAGE. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THE
INDEMNIFICATION PROVISIONS IN FAVOR OF THE CUSTOMER SET FORTH IN SECTION 8 SHALL
NOT BE LIMITED BY THE PROVISIONS OF THIS SECTION.
B. THE TOTAL AGGREGATE LIABILITY OF SAVVIS AND ITS SUPPLIERS TO CUSTOMER
AND/OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO
DIRECT DAMAGES PROVEN BY CUSTOMER; SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT
EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY SAVVIS FOR THE AFFECTED SERVICE
WHICH GIVES RISE TO SUCH LIABILITY IN THE TWELVE MONTH PERIOD IMMEDIATELY
PRECEDING THE DATE IN WHICH THE CLAIM ARISES. SECTION 8 SHALL NOT BE LIMITED BY
THE PROVISIONS OF THIS SECTION.
C. For certain Service(s), SAVVIS licenses certain software from third
parties for use with such Service(s). The liability of such third party
suppliers for damages, whether direct, indirect, incidental, special, punitive
or consequential arising from use of the software and hardware, shall be
disclaimed and limited to the maximum extent permitted by law.
D. Customer acknowledges and agrees that in no event shall SAVVIS be liable
for any damages, whether in contract or tort, including, but not limited to,
direct, consequential (including without limitation loss of profits), cost of
substitute goods, special, exemplary, incidental and indirect damages, arising
out of compliance or reasonable attempts to: (i) comply with the United States
Copyright Act, or (ii) satisfy requirements to qualify for the safe harbors
designated in Section 512 of the Digital Millennium Copyright Act including, but
not limited to any actions by SAVVIS that result in a disruption or suspension
of the Service(s).
E. The parties acknowledge that the limitations referenced in this Section
are material terms to this Agreement. Customer acknowledges that SAVVIS has set
its prices, and other charges in reliance on the foregoing limitations of
liability, which form an essential basis of the bargain between the parties.
12. Confidential Information.
A. Except as otherwise provided in this Agreement, neither party shall
disclose any of the terms and conditions of this Agreement nor any non-public
information received by the other party (collectively "Confidential
Information") without the prior written consent of the other party hereto.
Notwithstanding the foregoing, each party may disclose Confidential Information
to any consultants, contractors, and counsels who have a need to know and have
executed a reasonably protective non-disclosure agreement with the disclosing
party. Further notwithstanding, if the Confidential Information is required to
be disclosed by law or a court, governmental or administrative order, the
receiving party may disclose the Confidential Information but only to the extent
such disclosure is required by such law or court, governmental or administrative
order and further provided that prior notice of such disclosure is given to the
other Party, unless legally prohibited.
B. The provisions of this Section 12 shall not apply to any information
which: (a) is or becomes public knowledge other than by breach of this Agreement
by the receiving party; (b) is in the possession of the receiving party without
restriction in relation to disclosure before the date of receipt from the
disclosing party; (c) is received by either party from a third party not under a
duty of confidence; (d) is independently developed by the receiving party
without use of the Confidential Information.
C. In the event the receiving party commits a breach of, or threatens to
commit a breach of, this Section 12, the disclosing party shall have the right
to seek and obtain all judicial relief (including, but not limited to,
injunctive or other equitable relief, and monetary damages, interest and
attorney's fees and expenses) as may be finally ordered or awarded by a court of
competent jurisdiction.
13. Modification. This Agreement may be modified only by a written
instrument executed by both parties.
14. Notices. Any notice required to be given hereunder shall be in writing
and shall be deemed to have been delivered when (i) sent by facsimile, and
electronically confirmed, (ii) deposited in the United States mail (registered
or certified mail), return receipt requested, with adequate postage affixed, or
(iii) delivered to a national overnight courier service and addressed to the
persons set forth herein. Notice for monetary default may be sent by e-mail,
facsimile, or other written format.
To SAVVIS:
General notices: with a copy to:
SAVVIS Communications Corporation SAVVIS Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇
Attn: Legal Department Attn: Vice President of Billing
For allcancellation/disconnection, upgrades, or termination notices:
SAVVIS Communications Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Attn: Client Solutions
To Customer:
NS8 Corporation with a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 200 - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attn: Sales Department Attn: Legal Department
15. Force Majeure. Except for the obligation to make payments for
Service(s) rendered, neither party will be liable for any failure or delay in
its performance under this Agreement due to any cause beyond its reasonable
control, including but not limited to, acts of war, acts of God, earthquake,
flood, embargo, riot, sabotage, labor shortage or dispute, acts of government,
failure of the Internet, terrorist acts, failure of third party(ies), utility
power failure, or failure of communication lines.
16. Severability. In the event any portion of this Agreement is held to
be unenforceable, the unenforceable portion shall be construed in accordance
with applicable law as nearly as possible to reflect the original intentions of
the parties, and the remainder of the provisions shall remain in full force and
effect.
17. Waiver. SAVVIS' failure to insist upon or to enforce strict
performance of any provision of this Agreement shall not be construed as a
waiver of any provision or right. Neither the course of conduct between parties
nor trade practice shall act to modify any provision of this Agreement.
18. Monitoring. SAVVIS reserves the right to monitor Customer's activity
for internal network utilization and reliability purposes. SAVVIS' utilization
and reliability monitoring does not include examination of Customer data unless
(i) such examination is deemed necessary to troubleshoot a Customer issue, and
the Customer consents to such examination; or (ii) such examination is pursuant
to any judicial order, search warrant, or statutory requirement, in which event
SAVVIS shall provide notice thereof to Customer, to the extent that the judicial
order, search warrant, or statutory requirement permits said notice. Any
monitoring by SAVVIS is subject to the confidentiality provision set forth in
this Agreement.
19. Insurance. Customer shall keep in full force and effect during the term
of this Agreement commercial general liability insurance in an amount not less
than $2 million per occurrence with a $2 million aggregate covering claims for
bodily injury, death, personal injury or property damage. The liability
insurance limits required herein may be obtained through any combination of
primary and excess or umbrella liability insurance. Customer will (i) deliver
to SAVVIS certificates of insurance which evidence the minimum levels of
insurance set forth above and provide not less than thirty (30) days prior
written notice of cancellation to any herein required policy, and (ii) cause its
liability insurance provider(s) to name SAVVIS as an additional insured as its
interest may appear with respect to the Agreement.
20. Miscellaneous.
A. In the event SAVVIS or the local access provider needs to access the
Customer site to maintain or repair or otherwise effect the Service(s), Customer
shall cooperate in a timely manner and provide access to the Customer site and
assist SAVVIS or the local access provider to affect such maintenance. In the
event Customer does not provide, in a timely manner, the required assistance
and/or access, SAVVIS may immediately terminate the Agreement or suspend
Service(s) without liability or further obligation, and Customer shall not be
entitled to any remedies under the SLA for the timeframe during which the
required assistance and/or access is not provided. SAVVIS shall, when
reasonably practicable under the circumstances, give advance notice to the
Customer when it anticipates that it is required to provide access to the
Customer site.
B. SAVVIS reserves the right to terminate the Agreement or any affected
Service Addendum without liability or further obligation upon notice to Customer
in the event that (i) SAVVIS cannot maintain, despite reasonable efforts to do
so, its regulatory approval necessary to provide the Service(s) and/or enter
into this Agreement; and (ii) SAVVIS' underlying vendor is unable or unwilling
to provide some or all of the Service(s) required for SAVVIS to continue this
Agreement. To the extent reasonably practicable under the circumstances, SAVVIS
shall give advance notice to the Customer when it anticipates that it is
required to terminate the Agreement or any affected Service Addendum for the
reasons set forth in this paragraph.
C. Any cause of action Customer may have with respect to the Service(s)
shall be barred unless it is commenced within eighteen (18) months of the
earlier of (i) the effective date of expiration or termination of this
Agreement; or (ii) the date after the claim or cause of action arises.
D. All provisions in this Agreement, which by their nature are intended to
survive expiration or termination shall survive any expiration or termination of
this Agreement.
E. SAVVIS reserves the right to reject any handwritten or typed modification
to this Agreement, any Service Addendum or Service Order which is not mutually
agreed to in writing.
21. Third Party Beneficiaries. The terms, representations, warranties (if
any) and agreements of the parties set forth in this Agreement are not intended
for, nor shall they be for the benefit of or enforceable by, any third party,
including without limitation, Customer's end users.
22. Conflicts. In the event of a conflict between or among the terms in
this Agreement, the Service Order(s), the Service Addenda, and any other
document made a part hereof, the documents shall control in the following order
unless otherwise specifically set forth in a Service Addendum: the Service Order
with the latest date, the AUP, the Service Addendum, this Agreement.
23. Publicity. Customer shall not use, in advertising or publicity or in
any way related to this Agreement or the subject matter hereof, the name of
SAVVIS, its affiliates or any of its directors, officers, managers, employees,
consultants or agents or any trade name, trademark, service ▇▇▇▇, logo or symbol
of SAVVIS or its affiliates, except with the express prior written consent of
SAVVIS, such consent not to be unreasonably withheld. SAVVIS may disclose as
part of its promotional activities the fact that Customer is obtaining Service
from SAVVIS.
24. Entirety. This Agreement contains the entire agreement of the parties
hereto with respect to the matters covered hereby and supersedes any other prior
or simultaneous agreement related to such matters.
SAVVIS Communications Corporation NS8 Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------- -----------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇ Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------- -----------------------------------
Title: EVF, General Manager of the Americas Title: VP, Telco Sales
------------------------------------------- -----------------------------------
Date: Sep 23, 2005 Date: August 4, 2005
------------------------------------------- -----------------------------------
SAVVIS Hosting Service Addendum
This Hosting Service Addendum ("Service Addendum") by and between Customer and
SAVVIS shall modify the Master Services Agreement between the parties in
accordance with the terms and conditions provided for herein. Except for the
modifications provided for herein, all the terms of the Agreement shall remain
unchanged. All capitalized terms not defined herein shall have the meaning as
set forth in the Agreement.
1. Services. SAVVIS owns or has a leasehold interest in certain commercial
buildings throughout the United States and internationally (the "Premises"),
which are suitable for the placement and operation of telecommunications
equipment. Customer may provide or purchase from SAVVIS certain
telecommunications and computer equipment and cabling (the "Customer Provided
Equipment"). SAVVIS may provide or purchase for Customer certain
telecommunications and computer equipment and cabling (the "SAVVIS Provided
Equipment"). SAVVIS Provided Equipment, combined with Customer Provided
Equipment, certain bandwidth (the "Connection"), and additional services such as
server monitoring, backup services, reporting services, SAN services, load
balancing services, security service and system administration services shall
comprise the "Service" for Hosting or "Hosting Service". SAVVIS shall provide
Customer with Hosting Service in accordance with the specifications on the
Service Order.
A. Customer Provided Equipment and SAVVIS Provided Equipment shall be
utilized only for interconnection to the network services of SAVVIS.
B. SAVVIS shall perform services that support the overall operation of the
Premises (e.g., janitorial services, environmental systems maintenance, and
power plant maintenance) at no additional charge to Customer.
C. Customer shall not have the right to physically access the Premises for
any reason, unless such access is approved in writing by SAVVIS.
D. Customer acknowledges that it is receiving Hosting Service only and is
not entitled to occupy the Premises and shall not use the SAVVIS Provided
Equipment, other than as provided herein. Further, Customer has not been
granted any property interests in the Premises or the SAVVIS Provided Equipment.
Customer Provided Equipment shall not be deemed or become fixtures in the
Premises.
2. Term. The initial term for each Hosting Service shall have a term which
shall be the greater of one (1) year or the term set forth in the Service Order
for such Hosting Service which term shall commence from the date that SAVVIS
notifies Customer that it has installed and activated such Hosting Service
("Service Initial Term"). Such notification by SAVVIS may be by e-mail,
facsimile, or other written format. Each Hosting Service shall automatically
renew for successive periods equal to the Service Initial Term unless terminated
by either party at least thirty (30) days prior to the then current date for
termination.
A. Upon termination or expiration of the Service Initial Term or renewal
term, as the case may be, SAVVIS shall remove the Customer Provided Equipment.
In the event that Customer does not claim or provide an address for shipment of
such Customer Provided Equipment within thirty (30) days after SAVVIS' request
for such information, the Customer Provided Equipment shall be deemed abandoned,
and Customer shall lose all rights and title thereto.
B. In the event the Premises become the subject of a taking by eminent
domain by any authority having such power, SAVVIS shall have the right to
terminate any or all of the Hosting Service, including this Service Addendum.
SAVVIS shall attempt to give Customer as much advance notice of the removal
schedule as is reasonably practicable under the circumstances. Customer shall
have no claim against SAVVIS for any relocation expenses, any part of any award
that may be made for such taking or the value of any unexpired term or renewed
periods that result from a termination by SAVVIS under this provision, or any
loss of business from full or partial interruption or interference due to any
termination.
3. Payment. The Billing Commencement Date for Hosting Service is defined as
follows: The initial installation fee and monthly recurring fee shall be due
upon SAVVIS' notice to Customer that the initial installation is completed by
SAVVIS, which notice shall be sent to Customer by e-mail, facsimile, or other
written format. SAVVIS shall charge additional fees for additional Hosting
Service ordered by Customer. Notwithstanding the foregoing, in the event that
SAVVIS partially installs or activates a Service, SAVVIS reserves the right to
commence billing for such partial Service in accordance with this Section.
Notwithstanding the above, in the event that Customer fails to pay any or all
amounts due to SAVVIS and remove Customer Provided Equipment from the Premises
in accordance with Section 2A above within thirty (30) days of such SAVVIS
request, SAVVIS may liquidate the Customer Provided Equipment in any reasonable
manner, without being liable for related damages, and recover from such
liquidation the amount(s) owed by Customer to SAVVIS.
4. Additional Terms Governing Use.
A. SAVVIS shall allocate Customer's IP addresses in accordance with RFC 2050.
B. SAVVIS offers Customer access to the Internet. Customer hereby
acknowledges that the Internet is not owned, operated, managed by, or in any way
affiliated with SAVVIS or any of its affiliates, and that it is a separate
network of computers independent of SAVVIS. Customer's use of the Internet is
solely at its own risk and is subject to all applicable local, state, national,
international, other applicable laws and regulations. Access to the Internet is
dependent on numerous factors, technologies and systems, many of which are
beyond SAVVIS' authority and control.
C. SAVVIS reserves the right to perform and manage any construction or
material alterations within the Premises.
D. Customer's use of the Hosting Service shall at all times be subject to
Customer's adherence to the generally accepted industry standards, security
rules, and rules of conduct established by SAVVIS for the Premises.
E. SAVVIS shall not arbitrarily or discriminatorily require Customer to
relocate the Customer Provided Equipment; however, upon sixty (60) days prior
written notice or, in the event of an emergency, such time as may be reasonable,
SAVVIS reserves the right to change the location of the Premises to a site that
shall afford comparable environmental conditions for the Customer Provided
Equipment and comparable accessibility to the Customer Provided Equipment.
SAVVIS and Customer will work together in good faith to minimize any disruption
of Customer's services as a result of such relocation.
5. Pre-Activation Cancellation Charges. In the event that Customer
terminates this Service Addendum or any Hosting Service prior to SAVVIS' notice
to Customer that the initial installation is completed by SAVVIS, Customer shall
owe SAVVIS a pre-delivery cancellation fee as follows: Customer shall owe to
SAVVIS a charge of $5,000, and any and all third-party charges, including, but
not limited to, SAVVIS Provided Equipment and software charges that SAVVIS
incurs or will incur. Customer acknowledges that the amounts payable pursuant
to the preceding sentence are equitable compensation to SAVVIS and are intended
to reasonably compensate SAVVIS for the losses which are occasioned by
Customer's failure to honor its obligations hereunder and that the exact amount
of damages is difficult or impractical to establish.
At any time during the term of this Service Addendum, SAVVIS may, at SAVVIS'
sole option, immediately terminate any or all of the Hosting Service, including
this Service Addendum if Customer is not then maintaining or utilizing the
Customer Provided Equipment and SAVVIS Provided Equipment solely for the purpose
of originating and/or terminating telecommunications transmissions carried over
the SAVVIS network or as otherwise set forth in Section 1 of this Service
Addendum.
6. Ownership of Intellectual Property.
A. Unless otherwise expressly set forth in this Service Addendum, the
parties do not, directly or by implication, by estoppel or otherwise, grant to
each other any rights or licenses, and neither party shall have any ownership
rights in any intellectual or tangible property of the other.
B. Unless otherwise expressly set forth in this Service Addendum,
SAVVIS shall not obtain any right, title, and/or interest in the content
provided by Customer or its customers or end users and installed on, stored or
processed through SAVVIS' hardware and software, and, as between SAVVIS and
Customer, Customer shall retain title to and all rights and/or interest in such
content.
C. SAVVIS shall retain title to and all rights in all intellectual
property provided by SAVVIS, including, but not limited to, any know-how related
to the Hosting Service, SAVVIS Provided Equipment, software or any other server
technology. Customer understands that delivery of the Hosting Service may
involve use of software owned by SAVVIS or third parties under license
agreements with SAVVIS. Customer agrees to abide by the following terms
governing use of such software:
(i) Customer shall not cause or permit reverse engineering, disassembly or
decompilation of any software provided by SAVVIS, or use such software outside
the scope of this Service Addendum;
(ii) Title to software provided by SAVVIS shall not pass to the Customer;
(iii) Customer may use the software only in object code form;
(iv) Upon termination of this Service Addendum , or any Hosting Service,
Customer shall cease using the software, and any copies of software provided to
such Customer, if any, are to be either completely removed from the Customer's
computing devices or otherwise rendered unusable;
(v) Customer understands that in the event that Customer violates the
intellectual property rights of any third party supplier of software, such
software supplier shall have the right to enforce its intellectual property
rights with respect to the software directly against the Customer;
(vi) Customer and its customers and end users may access the software only in
connection with use of the Hosting Service and Customer's business operations,
and software may not be re-licensed, rented, leased, or used for time sharing or
service bureau users by Customer.
7. Equipment. SAVVIS assumes no liability for any damage to, or loss of,
any Customer Provided Equipment, data or software resulting from any cause other
than the intentional misconduct or negligence of SAVVIS. To the extent SAVVIS is
liable for any damage to, or loss of, Customer Provided Equipment for any
reason, such liability will be limited solely to the then-current replacement
value of the Customer Provided Equipment up to the limitations set forth in
Section 11 (Limitation on Liability) of the Agreement.
8. Miscellaneous.
A. SAVVIS shall have the right to terminate any or all of the Hosting
Service, including this Service Addendum. without liability of any kind on the
earlier of (i) the expiration of or earlier termination of SAVVIS' underlying
lease for the Premises ("Lease"), or (ii) expiration or earlier termination of
this Service Addendum. The parties agree that any renewal of Hosting Service
shall be contingent on the election by SAVVIS to continue to own or lease the
Premises, such election to be exercised at the sole discretion of SAVVIS;
provided, however that if SAVVIS intends to terminate any or all of the Hosting
Service, including this Service Addendum, due to expiration of or earlier
termination of SAVVIS' Lease or ownership of the Premises then SAVVIS will give
the Customer as much advance notice as is reasonably practicable under the
circumstances.
B. In the event that any Service(s) supplied by or through SAVVIS
under this Service Addendum becomes, or in SAVVIS' reasonable opinion is likely
to become, the subject of a claim of infringement, SAVVIS may, at its sole
option, without further liability or obligation to Customer, either: (i)
procure for Customer the right to continue use of the affected Service(s); (ii)
provide a modification on a timely basis to the affected Service(s), so that its
use becomes non-infringing but remains materially similar to the affected
Service(s); (iii) replace the affected Service(s) with a non-infringing version
which is materially similar to the affected Service(s); or (iv) terminate the
affected Service(s); provided, however that if SAVVIS intends to terminate any
or all of the affected Services due to any of the foregoing circumstances, then
SAVVIS will give the Customer as much advance notice as is reasonably
practicable under the circumstances.
C. Customer Provided Equipment and SAVVIS Provided Equipment shall
be utilized only for interconnection to the network services of SAVVIS.
D. SAVVIS shall perform services that support the overall
operation of the Premises (e.g., janitorial services, environmental systems
maintenance, and power plant maintenance) at no additional charge to Customer.
E. Customer shall not have the right to physically access the
Premises for any reason, unless such access is approved in writing by SAVVIS.
F. Customer acknowledges that it is receiving Hosting Service only and
is not entitled to occupy the Premises and shall not use the SAVVIS Provided
Equipment, other than as provided herein. Further, Customer has not been
granted any property interests in the Premises or the SAVVIS Provided Equipment.
Customer Provided Equipment shall not be deemed or become fixtures in the
Premises.
SAVVIS NS8 Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------- -----------------------------------
Title: EVF, General Manager of the Americas Title: VP, Telco Sales
------------------------------------------- -----------------------------------
Date: Sep 23, 2005 Date: August 4, 2005
------------------------------------------- -----------------------------------
Exhibit A for Hosting Service
SLA
(See Attached)
Exhibit B for Hosting Service
Professional Services
DEFINITIONS AND COVERAGE:
PROFESSIONAL SERVICES - Shall consist of services performed by SAVVIS'
employees, agents, and/or contractors/subcontractors (collectively or
individually referred to as "SAVVIS Personnel"), which is outside of existing
managed services contract set forth in the Service Order, and shall be billed at
the rates listed below. Also, any and all necessary materials will be billed to
Customer at an additional amount. SAVVIS current Professional Services are as
follows:
(i) Emergency On Call - Customer may contact the SAVVIS Network Control Center
("NOC") 24/7/365 to request Professional Services be performed. SAVVIS will
arrange for qualified SAVVIS Personnel to perform requested function as soon as
reasonably practicable. If SAVVIS does not have SAVVIS Personnel available to
perform functions, SAVVIS will notify Customer within 2 hours of Customer's
request. SAVVIS will use its commercially reasonable efforts to begin work (but
is not under any obligation to begin work) on an authorized request within 4
hours of SAVVIS NOC's receipt of request from Customer.
(ii) Contracted Services (Database Administration-DBA) - Shall consist of
pre-authorized service on Oracle and Microsoft SQL server databases. Provided
that Customer authorizes work at least 48 hours before work is to commence,
SAVVIS shall use its commercially reasonable efforts to begin work (but is not
under any obligation to begin work) on an authorized request within the time and
date that is mutually agreed upon between SAVVIS and Customer.
(iii) Contracted Services (Systems Administration) - Shall consist of
pre-authorized service for the Windows, Linux and Solaris Operating Systems, and
any applications that are standard to the SAVVIS product portfolio, as
determined by SAVVIS. Any applications that are outside of the product
portfolio, can be performed at this rate if SAVVIS Personnel is available with
that skill set. Provided that Customer authorizes work at least 48 hours
before work is to commence, SAVVIS shall use its commercially reasonable efforts
to begin work (but is not under any obligation to begin work) on an authorized
request within the time and date that is mutually agreed upon between SAVVIS and
Customer.
SAVVIS will not perform any Professional Services until Customer either (i)
executes an Authorization of Professional Services (a current form of which is
included hereunder) or (ii) submits an email with substantially the same
information set forth on the Authorization of Professional Services, and such
service authorization has been received and accepted by the SAVVIS NOC.
Authorization of Professional Services shall be signed or submitted by an
authorized representative of Customer, and will specify the type of service,
hourly rate, and authorized amount of time. SAVVIS will provide to Customer an
estimate of time required before starting engagement.
It is understood and agreed Customer that SAVVIS' and the SAVVIS Personnel's
maximum liability for any claims relating to Professional Services offered or
provided by SAVVIS shall not exceed the amount of the service fee for such
Professional Service provided on the occasion giving rise to the claim.
RATE INFORMATION:
Emergency On Call $350 per hour per person
Contracted Service - DBA $185 per hour per person (Minimum 48 Hours Prior
Notice)
Contracted Service - $150 per hour per person (Minimum 48 Hours Prior
Server Administration Notice)
Remote hands $100 per hour (Minimum 48 Hours Prior Notice)
Minimum billing 1/2 hour per incident
Additional time rounded to next 1/4 hour
Total time calculated and invoiced monthly
Acknowledgement of Customer Call Timeframe: Four hours from SAVVIS NOC's
receipt of call from Customer and SAVVIS' opening of a ticket.
Note: SAVVIS reserves the right to change the rates and parameters set forth
herein from time to time without notice.
Authorization of Professional Services
Customer Company Name: NS8 Corporation
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇
Site ID:
-----------
Authorizing Order Contact:
------------
Customer Company Name (If different from above):
-------
Phone: Fax: E-mail:
-------- --------- -----------
Customer authorizes SAVVIS to perform Professional Services as set forth
herein.
Service Description Hourly Rate Number of hours Total amount authorized
---------------------- ----------- --------------- -----------------------
Emergency
On Call $350
Contracted Service
- DBA $185
Contracted Service -
Server Administration $150
Contracted Service -
Remote Hands $100
IN WITNESS WHEREOF, the Parties have executed this Authorization of
Professional Services as of this day of , .
----- ----- -----
SAVVIS Customer
By: By:
----------------------------------------- -------------------------------------
Print Name: Print Name:
----------------------------------------- -------------------------------------
Title: Title:
----------------------------------------- -------------------------------------
Date: Date:
----------------------------------------- -------------------------------------
EXHIBIT A
SERVICE LEVEL AGREEMENT ("SLA")
FOR INTELLIGENT HOSTING SERVICES
I. Definitions
A. The "Main Agreement" is the i) Hosting Agreement or ii) the Master Services
Agreement and applicable Service Addendum to which this SLA is an attachment.
B. The "Systems" is the computer equipment and software that is approved by
SAVVIS and leased to the Customer by SAVVIS and contains the Customers' data and
applications.
C. A "Data Center" means the facility in which the Systems are located.
D. "Customer Data" means the data and applications that are owned by the
Customer and reside on the Systems.
E. A "Session" means an active communications connection, measured from
beginning to end, between Customer or one of its users, and the Systems.
F. An "Outage" means the accumulated time during which Customer or any of its
users are unable to establish a Session with the Systems, or access Customer
Data for reasons other than:
(1) The failure of equipment that is not fully owned and managed by
SAVVIS
(2) Scheduled or emergency maintenance performed at SAVVIS' initiative;
(3) Maintenance or service interruptions requested by Customer;
(4) Customer's acts or failure to act in a timely and/or proper manner
when notified to do so by SAVVIS (including, without limitation,
Customer's failure to permit entry by SAVVIS or make facilities or
components available to SAVVIS for testing or repair; or otherwise to
comply with SAVVIS' instructions and service requirements);
(5) A doubling of data transmitted above the committed data transmission
rate specified in the most recent Order Form for the Customer if the
committed rate is in excess of 10mbps;
(6) Failures caused by Customer Data.
II. Maintenance
SAVVIS reserves the right to perform emergency maintenance as needed. SAVVIS
will make commercially reasonable efforts to inform Customer prior to performing
scheduled or emergency maintenance. If such advance notice is not possible,
SAVVIS shall notify Customer about such emergency maintenance as soon as is
practicable.
III. Service Level Agreement
A. SAVVIS guarantees an overall availability of 99.9% for the Systems.
B. If in one month the Outage exceeds 44 minutes, the Customer will be entitled
to a credit towards the invoice that Customer receives two months following the
month in which the Outage was reported. For the purpose of determining the
amount of any Credit, an Outage will be deemed to commence when SAVVIS opens a
"trouble ticket" to track such Outage, and will be deemed to end when SAVVIS has
restored availability of the Systems. The Customer will not be entitled to
receive a credit if (i) Customer has violated the SAVVIS Acceptable Use Policy
(AUP) or (ii) Customer is in breach of any provision (monetary or non-monetary)
under the Main Agreement.
C. The amount of the Credit will be determined as follows:
(1) If there is an Outage for more than 44 minutes, but less than 3.6
hours in any calendar month, Customer shall be entitled to a Credit of
15% of that month's invoice for the portion of the invoice that
corresponds to the Data Center in which the Outage occurred.
(2) If there is an Outage for more than 3.6 hours, but less than 7.2
hours in any calendar month, Customer shall be entitled to a Credit of
20% of that month's invoice for the portion of the invoice that
corresponds to the Data Center in which the Outage occurred.
(3) If there is an Outage for more than 7.2 hours, but less than 10.8
hours in any calendar month, Customer shall be entitled to a Credit of
35% of that month's invoice for the portion of the invoice that
corresponds to the Data Center in which the Outage occurred.
(4) If there is an Outage for more than 10.8 hours in any calendar month,
Customer shall be entitled to a Credit of 50% of that month's invoice
for the portion of the invoice that corresponds to the Data Center in
which the Outage occurred.
D. In order to receive any Credit, Customer must notify SAVVIS, in writing,
within 30 days from the time Customer becomes eligible to receive such Credit
(i.e. the Trouble Ticket is closed). Customer's failure to notify SAVVIS within
that period shall result in the waiver of Customer's right to receive any such
Credit.
E. Credit shall not be paid if Customer is in default (i) at the time the
Outage occurred or (ii) at the time when such Credit is requested by Customer
F. An Outage shall not be deemed to occur upon the occurrence of routine
maintenance or upon the occurrence of an act outside of the control of
SAVVIS, such as loss of power at the Customer premises or an act of nature.
Exhibit B
---------
Streaming Delivery Service Level Agreement ("SDSLA")
----------------------------------------------------
All capitalized terms not defined herein shall have the meanings that are
ascribed in the Agreement.
1. DEFINITIONS:
-----------
Measurement Provider: A third party vendor who is selected to perform the
service measurements described herein.
Start-up Time: The time between the initial submission of the target URL to the
Media Player and the beginning of playback. It includes the connect time and the
initial buffer time. Daily Start-up Time will be calculated as an average of
all measurements of each item in the Test Set over each 24-hour calendar day and
then averaged across all streams in the Test Set, excluding periods of scheduled
maintenance which shall not exceed four (4) hours per month. Monthly Start-up
Time will be calculated as an average of all Daily Start-up Times in a calendar
month.
Streaming Service Credit: A reduction in the charges for streaming services
equal to one thirtieth (1/30th) of the total charges for the streaming services
in the month in which the Streaming Service Credit was issued. Only one
Streaming Service Credit will be issued for any single calendar day, regardless
of the number of Commitments that SAVVIS may have failed to acheive on that
particular day. SAVVIS will issue Streaming Service Credits to a maximum of the
total charges for streaming services in the month that the Streaming Service
Credits were issued. Streaming Service Credits represent reasonable liquidated
damages for deteriorated service, and are not a penalty.
Streaming Service Degradation: Failure by SAVVIS to meet the Streaming Service
Commitments in a given calendar month.
Streaming Service Outage: A Streaming Service Outage will be declared if either
SAVVIS or Customer create and verify a trouble ticket declaring that content is
not being streamed to a majority of users within a geographic region (a
"Priority One Trouble Ticket"). The Streaming Service Outage will remain in
effect until SAVVIS closes the Priority One Trouble Ticket. If Customer attempts
to initiate a Priority One Trouble Ticket, and SAVVIS does not respond with a
valid ticket number within one (1) hour of the initial contact by Customer, the
Priority One Trouble Ticket will be deemed to have been open for one hour at the
time of opening
Streaming Uptime: A percentage obtained by dividing the total number of
successful checks by the total number of checks performed. A successful check is
defined as one where the Media Player is able to begin
playback. Daily Streaming Uptime will be calculated as an average of
measurements of each item in the Test Set over each 24-hour calendar day and
then averaged across all streams in the Test Set, excluding periods of scheduled
maintenance which shall not exceed four (4) hours per month ("Daily Aggregate
Uptime"). Monthly Streaming Uptime will be calculated as an average of all
Daily Streaming Uptimes in a calendar month.
Test Set: A set of ten (10) on-demand streaming clips from those hosted on
SAVVIS' Streaming Network, specified by Customer to be used as the basis for
measuring performance hereunder.
2. MEASUREMENT OBLIGATIONS.
------------------------
(a) Measurement Provider. SAVVIS will hire, at SAVVIS' expense, a
Measurement Provider to measure and report the service levels provided by SAVVIS
under orders for streaming delivery services. Due to the access control and
related issues involved with granting a third party access to Customer's storage
account for this testing, the parties will cooperate with the Measurement
Provider to establish appropriate procedures regarding the testing. SAVVIS will
have no obligations under this Service Level Agreement during any periods where
measurements are unavailable due to any action or lack of action of Customer.
(b) Multiple Service Orders. Separate Test Sets will be identified for
each order (or "Statement of Work") for streaming delivery services, and
Streaming Service Credits will be separately measured and calculated for each
such order.
(c) Reporting. SAVVIS will arrange for Customer to receive the reports
created by such Measurement Provider and will give Customer an opportunity to
examine such reports on a continuing basis for at least ninety (90) days from
the time of the measurement. If there are reports that are found by both
parties to contain inaccurate data after Streaming Data Trimming by the
Measurement Provider, both parties will work together to recalculate the service
levels excluding the inaccurate data. No Streaming Service Degradation or
Streaming Service Outage will be declared for reports that both parties agree
contain inaccurate data until new calculations are completed and accepted by
both parties.
3. Streaming Services commitments.
---------------------------------
(a) 98% Streaming Uptime. SAVVIS will provide Streaming Uptime of 98% (the
"Streaming Uptime Commitment") as measured by the Measurement Provider. SAVVIS
will not be held responsible for any failure to maintain the Streaming Uptime
Commitment due to actions or inactions of Customer. If SAVVIS fails to meet the
Streaming Uptime Commitment on any given day of a calendar month, a Service
Degradation will be declared for that day. If SAVVIS fails to meet the
Streaming Uptime Commitment for any five (5) days in a calendar month, a Service
Outage will be declared for that month. Only one single Streaming Service
Credit will be issued for any single calendar day under any single Statement of
Work, regardless of the number of Commitments that SAVVIS may have failed to
achieve on that particular day.
(b) 10 Second Start-up Time. SAVVIS will provide Start-up Time of no more
than 10 seconds ("Start-up Time Commitment") as measured by the Measurement
Provider. SAVVIS will not be held responsible for any failure to maintain the
Start-Up Time Commitment due to actions or inactions of Customer. If SAVVIS
fails to meet the Start-up Time Commitment on any given day of a calendar month,
a Service Degradation will be declared for that day. If SAVVIS fails to
meet the Start-up Time Commitment for any 5 days in a calendar month, a Service
Outage will be declared for that month. Only one single Streaming Service Credit
will be owed for any single calendar day under any single Statement of Work,
regardless of the number of Commitments that SAVVIS may have failed to achieve
on that particular day.
4. REMEDIES.
--------
(a) Service Degradation:
Customer's sole and exclusive remedy for any single Service Degradation will be
the eligibility to receive one (1) Streaming Service Credit for each day that a
Service Degradation is declared.
Savvis will use all reasonable efforts to apply Streaming Service Credits to
invoices for the month in which the Service Degradation occurred. Customer must
notify SAVVIS within sixty (60) business days from the date of receipt of the
invoice for the period, if it believes Savvis failed to apply all earned
Streaming Service Credits.
(b) Service Outage
If a Service Outage is declared, SAVVIS will exercise commercially reasonable
efforts to resolve the Service Outage within twenty-four (24) hours. If SAVVIS
does not resolve the Service Outage within twenty-four (24) hours, or if a
second Service Outage is declared within thirty (30) calendar days of the first,
Customer may terminate the Statement of Work by providing fifteen (15) days
prior written notice to SAVVIS. Such notice will be given within twenty (20)
days after the end of the calendar month in which the Service Outage occurred.
Neither party shall have any further liability for termination arising out of a
Service Outage. Notwithstanding the foregoing, Customer will remain liable for
fees incurred through the date of termination in accordance with the Agreement,
but not for any early cancellation penalty.
(c) THE REMEDIES SET FORTH IN THIS SERVICE LEVEL AGREEMENT ARE CUSTOMER'S
SOLE AND EXCLUSIVE REMEDIES AS IT RELATES TO SAVVIS' FAILURE TO PERFORM THE
SERVICES IN ACCORDANCE WITH THIS SERVICE LEVEL AGREEMENT.
5. MEASUREMENT AND AVAILABILITY
------------------------------
a) Choice of Measurement Provider
At the time of initiation of this SDSLA, the Measurement Provider is Keynote
Systems, Inc. SAVVIS reserves the right in its sole discretion to change the
Measurement Provider at any time upon thirty (30) days written notice to
Customer.
b) Collection of Stream Quality Data
The Test Set selected for each Statement of Work will consist of content on the
SAVVIS Streaming CDN. The fully qualified path of the URL must be entirely
within the domain of the SAVVIS Streaming CDN. Customer will arrange for the
Measurement Provider to perform checks on each of the Test Streams provided at a
rate of 10 checks per hour throughout the day. Each check will last 60 seconds,
during which time various measurements are collected to determine performance
under the service commitments described above. These measurement results will
constitute the Raw Stream Quality Data.
c) Streaming Data Trimming
Once a day, the Raw Stream Quality Data will be trimmed to create the Final
Stream Quality Data. The trimming process will eliminate any data that came from
any Measurement Provider scanners that experienced technical problems during the
measurement period. The trimmed Raw Stream Quality Data will make up the Final
Stream Quality Data ("Streaming Data Trimming").
d) Availability and Use of Stream Quality Data
SAVVIS will arrange for the Measurement Provider's Final Stream Quality Data to
be made available via secure log-in to Customer and SAVVIS. Data will be
archived by the Measurement Provider for 90 days.
e) Confidentiality
Passwords supplied to SAVVIS may be distributed only to its duly authorized
employees or representatives with a need to access the information for purposes
of implementing this SDSLA. Unless specified otherwise in an agreement between
SAVVIS and the Measurement Provider, the Measurement Provider's information
obtained by SAVVIS hereunder must be treated as information that Customer is
obligated to treat as confidential, under the terms of the Nondisclosure
Agreement between Customer and SAVVIS.
SAVVIS Content Delivery Network (CDN) Services Addendum
This Service Addendum for Content Delivery Network Services (the "Services") by
and between Customer and SAVVIS shall modify the Master Services Agreement
between the parties in accordance with the terms and conditions provided for
herein. Except for the modifications provided for herein, all the terms of the
Agreement shall remain unchanged. All capitalized terms not defined herein
shall have the meaning as set forth in the Agreement. The Service Addendum
hereby incorporates by reference all terms and conditions set forth in the
applicable Specification Sheets for Services ordered by Customer. This addendum
shall also apply to Streaming Services.
1. Installation. "Installation Date" means the date SAVVIS has completed
the installation for a Service, or, in the case of non-installed services, the
date SAVVIS begins providing the service to Customer.
2. Term. The initial term of each Service ("Initial Term") shall be set
forth on the applicable Service Order, and shall commence on the Installation
Date. After the Initial Term, each monthly recurring Service will continue
automatically for additional terms equal to the Initial Term ("Renewal Term")
unless such Services(s) are terminated by either party in writing at least sixty
(60) days prior to the end of the Initial Term or a Renewal Term, as applicable,
in which case such Service shall terminate at the end of such term. The
termination of any Service will not affect Customer's obligations to pay for
other service(s). If Customer terminates a particular Service, and the result
of such terminated Service is that SAVVIS is prevented from providing an
additional related Service (the "Related Service"), then SAVVIS will not be
obligated to provide the Related Service; provided that notwithstanding the
foregoing, Customer shall nonetheless be obligated to pay SAVVIS for the Related
Service.
3. Billing. All fees for the Services will be listed on the applicable
Order Form(s). The Billing Commencement Date for the Services shall be the
Installation Date. Monthly minimum payment obligations ("Monthly Recurring
Charges," or "MRC") for each Service will be billed in advance of the provision
of Services. One-time implementation or other fees for a new Service or portion
of a Service ("Non-Recurring Charges," or "NRC") and all other charges for
Services received, including but not limited to variable usage Services, will be
billed in arrears.
4. Use of Services.
A. With respect to On-Demand Streaming Services or any successor product or
service, Customer will not sublicense or otherwise redistribute the streams in
any way other than for; i) delivery to end users, or ii) use of the streams
primarily to serve its corporate intranets.
B. SAVVIS assumes no liability for any damage to, or loss of, any Customer
Equipment resulting from any cause other than the gross negligence or willful
misconduct of SAVVIS. To the extent SAVVIS and/or its affiliates is liable for
any damage to, or loss of, Customer Equipment for any reason, such liability
will be limited solely to the then-current replacement value of the affected
Customer Equipment, excluding lost data, software and firmware.
5. Service Level Agreement. SAVVIS represents that it will perform the
Services in a workmanlike manner consistent with industry standards reasonably
applicable to the performance thereof. The remedies set forth in the Service
Level Agreement Attached as Exhibit A for Content Delivery Network Services or
Exhibit B for Streaming Services , are Customer's sole and exclusive remedies
for any failure by SAVVIS to provide the Services and for SAVVIS' failure to
meet any representation set forth in this Section 6.
6. Service End of Life. SAVVIS may elect at its sole discretion to
substitute or terminate ("end-of-life") certain Services provided to Customer.
In that event, SAVVIS will use commercially reasonable efforts to (i) substitute
substantially similar services in lieu of the Services being replaced; and (ii)
minimize the impact resulting from such changes on the Customer. SAVVIS will
provide Customer with at least thirty (30) days notice before end-of-lifing a
Service or substituting a replacement Service.
7. Compliance with Laws and AUP. In addition to Customer's obligations
contained in Section 4 of the Agreement, Customer acknowledges that SAVVIS
exercises no control whatsoever over the content residing on Customer's site
(including Customer's customers' or end users' content, and including any and
all audio content, video content, film, slides, renderings, text-based content,
and/or other images provided to SAVVIS by or on behalf of Customer) or any
content shared or processed on equipment under the control of SAVVIS on behalf
of Customer, and that it is the sole responsibility of Customer to ensure that
the information it and its customers and users transmit and receive, and use
thereof, complies with all applicable laws and regulations and the AUP.
8. Suspension of Service. In addition to SAVVIS' rights contained in
Section 4 of the Agreement, in the event of any breach of the AUP or any
Customer warranty or representation set forth within this Service Addendum, in
addition to any other remedies available at law or in equity, SAVVIS will have
the right to suspend immediately the applicable Service(s) and/or restrict
Customer's access to the SAVVIS data center(s), to the extent and for so long as
deemed reasonably necessary by SAVVIS to prevent any harm to SAVVIS, its
employees or its business.
9. Intellectual Property.
A. Except for the rights expressly granted herein, this Agreement does not
transfer to Customer any SAVVIS Technology, and all right, title and interest in
and to SAVVIS Technology will remain solely with SAVVIS and/or its Affiliates or
licensed third parties. Except for the rights expressly granted herein, this
Agreement does not transfer from Customer to SAVVIS any Customer Technology, and
all right, title and interest in and to Customer Technology will remain solely
with Customer. SAVVIS and Customer each agrees that it will not, directly or
indirectly, reverse engineer, decompile, disassemble or otherwise attempt to
derive source code or other trade secrets from technology of the other party.
B. For purposes of this Service Addendum, (i) "Customer Technology"
means Customer's proprietary technology, including Customer's Internet
operations design, software tools, hardware designs, algorithms, software (in
source and object forms), user interface designs, architecture, class libraries,
objects and documentation (both printed and electronic), know-how, trade secrets
and any related intellectual property rights throughout the world (whether owned
by Customer or licensed to Customer from a third party) and also including any
derivatives, improvements, enhancements or extensions of Customer Technology
conceived, reduced to practice, or developed during the term of this Agreement
by Customer; and (ii) "SAVVIS Technology" means SAVVIS' proprietary technology,
including SAVVIS and its Affiliates services, software tools, hardware designs,
algorithms, software (in source and object forms), user interface designs,
architecture, class libraries, objects and documentation (both printed and
electronic), network designs, know-how, trade secrets and any related
intellectual property rights throughout the world (whether owned by SAVVIS, its
Affiliates or licensed to SAVVIS and/or its Affiliates from a third party) and
also including any derivatives, improvements, enhancements or extensions of
SAVVIS Technology conceived, reduced to practice, or developed during the term
of this Agreement by either party that are not uniquely applicable to Customer
or that have general applicability in the art.
C. Notwithstanding anything to the contrary in this Agreement, SAVVIS will
not be prohibited or enjoined at any time by Customer from utilizing any skills
or knowledge of a general nature acquired during the course of providing the
Services, including, without limitation, information publicly known or available
or that could reasonably be acquired in similar work performed for another
customer of SAVVIS.
D. In the event that any Service(s) supplied by or through SAVVIS under this
Agreement becomes, or in SAVVIS' reasonable opinion is likely to become, the
subject of a claim of infringement, SAVVIS may, at its sole option, either: (i)
procure for Customer the right to continue use of the affected Service(s); (ii)
provide a modification on a timely basis to the affected Service(s), so that its
use becomes non-infringing but remains materially similar to the affected
Service(s); (iii) replace the affected Service(s) with a non-infringing version
which is materially similar to the affected Service(s); or (iv) terminate the
affected Service(s) without further liability or obligation to Customer.
10. License Grants.
A. SAVVIS hereby grants to Customer a nonexclusive, royalty-free license,
non-transferable (except as otherwise provided in this Agreement) during the
Initial Term and any Renewal Term, to use the SAVVIS Technology that SAVVIS
provides Customer in connection with the provision of the Service(s), solely for
purposes of using the Service(s) in accordance with the terms and conditions of
this Agreement and for no other purpose.
B. Customer agrees that if, in the course of performing the Service(s), it
is necessary for SAVVIS to use Customer Technology, SAVVIS is hereby granted and
shall have a nonexclusive, royalty-free license, during the Initial Term and any
Renewal Term, to use the Customer Technology solely for purposes of providing
the Service(s) to Customer and no other purpose.
11. Termination.
A. Unless otherwise provided on an Order Form, if Customer terminates any
Service prior to the completion of the applicable term, whether the term is for
an Initial Term or for a Renewal Term, then SAVVIS will charge Customer, and
Customer agrees to pay, the fees for the remainder of the term on the terminated
Service.
12. No Lease; Agreement Subordinate to Master Lease. This Agreement is a
services agreement and is not intended to and will not constitute a lease of any
real property. Customer acknowledges and agrees that (i) it has been granted
only a license to occupy the Customer Area and use the SAVVIS data center(s) and
any equipment provided by SAVVIS in accordance with this Agreement; (ii)
Customer has not been granted any real property interest in the Customer Area or
data center(s); (iii) Customer has no rights as a tenant or otherwise under any
real property or landlord/tenant laws, regulations, or ordinances; and (iv) this
Agreement, to the extent it involves the use of space leased by SAVVIS, shall be
subordinate to any lease between SAVVIS and its landlord(s). Customer hereby
waives and releases any claims or rights to make a claim that it may have
against the landlord(s) under any lease by SAVVIS with respect to any equipment
or property of Customers located in the premises demised to SAVVIS by such
landlord(s).
13. Specification Sheet. The "Specification Sheet" shall mean the detailed
description for each Service, other than Professional Services, ordered in the
applicable Service Order by Customer, which is attached to or forms a part of
the applicable Service Order(s). The terms of the Specification Sheet are
hereby incorporated by reference into this Service Addendum. In the event of a
conflict between the terms of the Specification Sheet and this Service Addendum,
the terms of the Specification Sheet shall control.
SAVVIS Customer
By: By:
----------------------------------------- -------------------------------------
Print Name: Print Name:
----------------------------------------- -------------------------------------
Title: Title:
----------------------------------------- -------------------------------------
Date: Date:
----------------------------------------- -------------------------------------
EXHIBIT A
---------
CONTENT DELIVERY NETWORK SERVICES
---------------------------------
SERVICE LEVEL AGREEMENT
-----------------------
Performance Guarantee
At no charge to Customer, SAVVIS commits that the performance, as defined below,
of Customer Content located on the SAVVIS Content Delivery Network will beat the
performance of content located on the Customer's origin site 99.8% of the time.
SAVVIS will determine performance using the independent performance testing
company Keynote Systems, Inc. Performance will be measured as a daily (24-hour
period) worldwide average using ten (10) Keynote agents located throughout the
world. In the event the average daily response time of the content located on
the SAVVIS Content Delivery Network is slower than the average daily response
time of the content on Customer's origin server, Customer will receive a credit
of one hundred percent (100%) of its daily SAVVIS Content Delivery Network
transfer fees, not to exceed $5,000 per month.
Please Note: This Service Level Agreement applies to standard SAVVIS Caching (C)
data only. It does not apply to streaming media data.
Measurement Techniques and Definitions:
Measurement of Performance Guarantee
SAVVIS uses one of the recognized leaders in independent performance
testing - Keynote Systems, Inc. -- to measure the performance of Customer's
content, as outlined herein. Keynote measures performance by utilizing
Keynote agents situated around the world and, from these Keynote agents,
SAVVIS obtains a worldwide daily average of the download time for the
content. The current Keynote Agents are located at the following sites*:
- New York, NY, San Francisco, CA, Los Angeles, CA, Atlanta, GA, Chicago,
IL, Washington, DC, London, Tokyo, Hong Kong, Germany
SAVVIS will give Customer a 100-kb text file to be stored on Customer's
origin site. SAVVIS will then enable the 100-kb file, thereby loading it on
the Caching Network. Keynote will test the download time of this text file
from the Caching Network and compare it to the download time of the same
file from Customer's origin server.
*SAVVIS reserves the right, in its sole and absolute discretion, to change
the testing locations listed above.
Scenarios in which Keynote measurements will not be counted against Service
Level Agreement
Erroneous performance measurements by Keynote agents, as verified by
Keynote, will not be counted against this Service Level Agreement.
Downtime minutes will not be counted against the measurement of the
---
performance guarantee, as defined above, in the following cases:
- Customer's origin server is unavailable or not responding to the Keynote
test agents.
- Downtime due to failure or inaccessibility of to the Keynote test agents.
Performance measurements during customer initiated invalidation (such as
redirection) or expiration of the 100 kb test file that prevents the
caching of the 100 kb test file onto the Caching Network will not be
counted against this Service Level Agreement.
This Service Level Agreement is not valid for customers with geographic
restrictions on content delivery using Footprint.
Refunds
In the event SAVVIS fails to meet the performance guarantee, as defined in
this Service Level Agreement, at the end of the calendar month, SAVVIS will
determine the monthly caching amount and divide by thirty to derive the
daily caching transfer credit. All daily caching transfer credits permitted
under this Service Level Agreement will be added together to obtain the
total credits for the month. The total monthly credit, not to exceed $5,000
per month, will be applied as a credit on Customer's next monthly invoice.
The foregoing lists Customer's sole and exclusive remedy should SAVVIS fail
to meet the above performance guarantee, as defined in this Service Level
Agreement.