NextCard Inc. Contracts
Sample Business Contracts
Master Services Agreement - Exodus Communications Inc. and Internet Access Financial Corp.
Services Forms
EXODUS COMMUNICATIONS, INC.
MASTER SERVICES AGREEMENT
AGREEMENT NO. ____
THIS MASTER SERVICES AGREEMENT (this "Agreement") is made effective as
of the Acceptance Date (December 23, 1997) indicated in the Services and Price
Form attached hereto as Attachment 1, by and between Exodus Communications,
Inc., a California corporation doing business at 2650 San Tomas Expressway,
Santa Clara, California 95051 ("Exodus") and the customer identified below
("Customer").
A. Exodus is in the business of providing managed Internet data
center services to its customers.
B. Customer desires to engage Exodus to provide such services to
Customer, and Exodus desires to provide such services, on the terms and
conditions of this Agreement.
C. Customer and Exodus have agreed to enter into this Agreement
for Exodus's provision of, and Customer's payment to Exodus for such
services.
This Agreement, including all Attachments hereto listed below, which
are incorporated herein by this reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter.
EXODUS COMMUNICATIONS, INC. Customer Name: Internet Access Financial Corporation
2650 San Tomas Expressway Address: 595 Market Street - Suite 950
Santa Clara, CA 95051 San Francisco, CA 94105
Phone (408) 346-2200 Phone: (415) 836-9700
Fax: (408) 346-2206 Fax: (415) 284-9229
Signature: /s/ [ILLEGIBLE] Signature: /s/ JEREMY LENT
-------------------------- -----------------------
Print Name: Print Name: JEREMY LENT
------------------------- ----------------------
Title: GC Title: Chief Executive Officer
------------------------------ ---------------------------
Date: 3/26/98 Date: January 23, 1998
------------------------------- ----------------------------
INCLUDES: X ATTACHMENT 1: SERVICES AND PRICE ORDER FORM
X ATTACHMENT 2: TERMS AND CONDITIONS
X ATTACHMENT 3: RULES AND REGULATIONS
ATTACHMENT 4: CUSTOMER EQUIPMENT
ATTACHMENT 5: REGISTRATION FORM
ATTACHMENT 6: NEGOTIATED CHANGES
Exodus Communications, Inc. Confidential (rev 8/97)
<PAGE> 2
ATTACHMENT 1
SERVICES AND PRICE FORM
CUSTOMER NAME: IAFC
Date: 1/23/1998
Form No. 0925-4
Original Services Agreement Date:
(for Internet Data Center Services upgrades only
ETHERNET (10Mbps) USAGE BASED BANDWIDTH SERVICE:
PRODUCT DESCRIPTION QUANTITY START MONTHLY
NUMBER (DETAILED DESCRIPTIONS & PERFORMANCE UP
STANDARDS FOR EXODUS ATTACHED)
Exo-ColNetBU-T1 Private T1 backup access 1 $500
EXO-XCON-RT1 T1 Cross-connection for Remote Access Only 1 $500
EXO-ETHER-10U ETHER10U - 2Mbps base with 10 Mbps burstability 1 $1,000
(SEE NOTE 1 AND VARIABLE USAGE)
EXO-ETHER-SU Ethernet Network Setup 1 $1,000
EXO-VDC# Virtual Data Center (7'x8'); includes 4 racks, 1 $7,500#
80 amp circuit; 2 access cards (see note)#
EXO-VDC - SU Virtual Data Center Setup 1 $3,000#
#Through February 28, 1998, customer will pay
$1,500 per month.
EXODUS TOTAL $4,500 $9,000
Note:
#Customer will move from a CyberCabinet (EXO-CAB) to a Virtual Data Center
(EXO-VDC) effective 12/4/97. For the months of December 1997, January and
February 1998, Customer will pay the CyberCabinet rate of $1,500 per month.
In March, Customer will either remain in the Virtual Data Center (EXO-VDC)
and be billed $6,450 per month thereafter or move back to the CyberCabinet
(EXO-CAB) and continue to pay $1,500 per months.
<PAGE> 3
TELCO: (415)284
------------------------------------------------------------------------------------------------
Telco (MFS) Local loop access to customer cage (T-1) $850 $545
------------------------------------------------------------------------------------------------
EXODUS COMMUNICATIONS, INC.
PROPRIETARY INFORMATION--USE PURSUANT TO COMPANY POLICY
OPTIONAL INTERNET SITE ADMINISTRATION:
------------------------------------------------------------------------------------------------
PRODUCT NUMBER DESCRIPTION (DETAILED DESCRIPTIONS & PERFORMANCE QTY START-UP MONTHLY
STANDARDS FOR EXODUS ATTACHED)
------------------------------------------------------------------------------------------------
EXO-SARB 24x7 Reboot Service (per server/device) 4 $200
WAIVED
------------------------------------------------------------------------------------------------
EXO-SARB 24X7 Reboot Service (per server/device) 3 $150
------------------------------------------------------------------------------------------------
EXO-SAOS-C1* Operating System Administration (per class 1 server) 3 $900*
------------------------------------------------------------------------------------------------
EXO-SANW-C1 Switch/Router Administration (per class 1 device) 1 $300
------------------------------------------------------------------------------------------------
EXO-SA-SU Setup -- Internet Site Administration Setup (per server 4 $2,000
or device)
------------------------------------------------------------------------------------------------
*When Activated
------------------------------------------------------------------------------------------------
TOTAL $2,000 $1,350
------------------------------------------------------------------------------------------------
OPTIONAL INTERNET SERVICE-LEVEL EVENT MANAGEMENT:
------------------------------------------------------------------------------------------------
PRODUCT NUMBER DESCRIPTION (DETAILED DESCRIPTIONS & PERFORMANCE QTY START-UP MONTHLY
STANDARDS FOR EXODUS ATTACHED)
------------------------------------------------------------------------------------------------
EXO-SMNW Network Event Management (per server) 1 $150
------------------------------------------------------------------------------------------------
EXO-SMOS* Operating System Event Management (per server) 3 $450*
------------------------------------------------------------------------------------------------
EXO-SMWB URL Event Management (per server) 1 $150
------------------------------------------------------------------------------------------------
EXO-SM-SU Setup -- Service Level Management (per server) 4 $400
------------------------------------------------------------------------------------------------
*When Activated
------------------------------------------------------------------------------------------------
TOTAL $400 $750
------------------------------------------------------------------------------------------------
<PAGE> 4
Optional Internet Service-Level Monitoring 7 Reporting:
---------------------------------------------------------------------------------------------------------
PRODUCT NUMBER DESCRIPTION QTY START UP MONTHLY
(DETAILED DESCRIPTIONS & PERFORMANCE
STANDARDS FOR EXODUS ATTACHED)
---------------------------------------------------------------------------------------------------------
EXO-MONW* 24x7 Network Device Monitoring (per device) 7 $700*
----------------------------------------------------------------------------------------------------------
* When Activated
----------------------------------------------------------------------------------------------------------
TOTAL $700
----------------------------------------------------------------------------------------------------------
Optional Internet Business Continuity Services:
---------------------------------------------------------------------------------------------------------
PRODUCT NUMBER DESCRIPTION QTY START UP MONTHLY
(DETAILED DESCRIPTIONS & PERFORMANCE
STANDARDS FOR EXODUS ATTACHED)
---------------------------------------------------------------------------------------------------------
EXO-BCMM* Tape Media Management 1 $500*
----------------------------------------------------------------------------------------------------------
EXO-BCMM-SU* Setup - Tape Media Management 1 $500*
----------------------------------------------------------------------------------------------------------
TOTAL $500 $500
----------------------------------------------------------------------------------------------------------
Internet Site Security Services:
---------------------------------------------------------------------------------------------------------
PRODUCT NUMBER DESCRIPTION QTY START UP MONTHLY
(DETAILED DESCRIPTIONS & PERFORMANCE
STANDARDS FOR EXODUS ATTACHED)
---------------------------------------------------------------------------------------------------------
EXO-SSFW-CK Checkpoint Firewall Service - 1 Managed Service 1 $2,700
----------------------------------------------------------------------------------------------------------
EXO-SSFW-SU Setup - Firewall Installation and Configuration 1 $2,000
----------------------------------------------------------------------------------------------------------
TOTAL $2,000 $2,700
----------------------------------------------------------------------------------------------------------
Colocation and Managed Services Summary:
--------------------------------------------------------------------------------
DESCRIPTION START UP MONTHLY
--------------------------------------------------------------------------------
Internet Site Administration $2,000 $1,350
--------------------------------------------------------------------------------
Internet Service-Level Event Management: $ 400 $750
--------------------------------------------------------------------------------
Internet Service-Level Monitoring & Reporting: N/A $700
--------------------------------------------------------------------------------
Internet Business Continuity Services $ 500 $500
--------------------------------------------------------------------------------
Internet Site Security Services $2,000 $2,700
--------------------------------------------------------------------------------
TOTAL BEFORE DISCOUNT $4,900 $6,000
--------------------------------------------------------------------------------
GRAND TOTAL LESS 48% FROM STARTUP & 14% FOR MRC $2,548 $5,160
--------------------------------------------------------------------------------
<PAGE> 5
Basic Data Center Services
Fire Suppression System
- IAFC equipment located at Exodus colocation facility is protected by two
fire fighting systems: Fire Master 200 (FM200) fire suppression system and
a pre-action localized dry pipe sprinkler system. FM200 is
Heptafluorapropane gas, that when released, consumes all the oxygen in the
premise, choking any fire. If the FM200 fails, the heat will melt through
one of the overhead high heat sprinkler heads and will release the pressure
and allow the water to flow. Heat sensors are located above the ceramic
ceiling tiles, at the ceiling surface, and under the raised floor ceramic
tiles to detect over the ceiling, under the raised floor, and surface
fires.
Earthquake Bracing System
- Chattworth racks are bolted to the concrete slab and overhead using ladder
racks that are attached to firewalls. 4" x 4" cable management trays are
attached between racks for additional cable routing, and individual or
redundant electrical circuits can be dedicated to each rack for a/c
protection from adjacent equipment.
Redundant Equipment Air Conditioning
- Exodus provides continuous and redundant air conditioning using 22-ton
air-conditioning units to provide a 68 to 70 Degree F environment for your
machine.
Physical Security
- Access cards and physical keys for the colocation site will be provided to
the authorized IAFC employees for access. The cards will record entry and
exit to the data center and colocation site. In the event IAFC personnel
require access without cards or keys they will require to present
identification and verification against an authorized entry list.
Redundant Power
- Redundant power sources to prevent outages due to electrical outages. The
UPS, which is always configured to provide at least 30 minutes of
uninterrupted power to all data center equipment, is supplied by the
electrical company with a backup feed from a Diesel generator. Immediately
after power failures, the generator kicks to feed to UPS to ensure no
interruption of service occurs. The generator is capable of running 30
hours at a time without refueling. 20 minutes after power failure, three
trucks containing spare parts, additional Diesel, and a spare generator
will arrive to our facility.
<PAGE> 6
Clean Redundant Power
- Your server receives a continuous supply of clean power. The Exodus
redundant power system utilizes and AC-DC-AC conversion process to
eliminate power surges to provide non-stop power. Incoming AC power (480V,
3 Phase), supplied by the Utility, is first converted to DC power (-56V) by
redundant rectifiers. The first conversion process eliminates Utility power
surges and line noise. The DC power is used to directly power DC servers
and to charge a stand-by battery. To meet the needs of AC servers, DC power
is converted to 120V AC, using redundant sign wave inverters. If a power
failure occurs, the stand-by battery immediately (no transfer time)
provides the required power for both DC and AC servers, then a diesel power
generator kicks in automatically. The Exodus redundant power system is
currently capable of providing thirty hours of continuous power during a
major power failure before refueling. The diesel fuel in the generator is
recycled every thirty days, and the zero transfer time switch-over is
tested at the beginning of each month.
Low Level Systems Administration
- IAFC must choose the levels of support that best match the requirements of
IAFC company. In conjunction with our other Internet products and services,
Exodus also offers many different support services to complement your
Internet installation, implementation, and future needs.
The standard 24 x 7 monitoring services include the following: Continuity
between the Exodus network and the client point-of-presence; Newsfeed
updates; POP account administration; router and filter administration;
domain name administration; TCP/IP address assignment; M-Bone tunneling;
and DNS administration.
Optional Service Offerings include: Configuration and on-site installation
of IAFC Internet equipment; Network and Internet solution consulting;
Hands-on training from Internet basics and HTML publishing; Web site
implementation and analysis; Solaris (SUN) and Windows NT (COMPAQ)
operating system administration consulting services; And Management of
Internet projects, from inception through installation and maintenance.
<PAGE> 7
COLOCATION SERVICES SUMMARY:
DESCRIPTION START UP MONTHLY
----------- -------- -------
Co-Location, T-1 $2,500 $3,040
(LESS 48%)
Telco (T-1) $ 850 $ 545
EXODUS TOTAL: $2,150 $3,585
IMPORTANT INFORMATION:
(1) This offer will remain open for thirty days from the date indicated above.
(2) Acceptance constitutes a firm order for the Internet Data Center Services
indicated above. Billing will commence on the earlier of the Installation
Date indicated below or the date Customer actually installs its equipment.
(3) Exodus will provide the Internet Data Center Services pursuant to the terms
and conditions of the Master Services Agreement to which this form
constitutes Attachment 1. Customer must sign and deliver to Exodus the
Master Services Agreement prior to the Installation Date indicted below.
(4) The terms of this form supersede, and Exodus hereby rejects, any
conflicting or additional terms (other than the four pages of performance
standards attached hereto) provided by Customer in connection with Exodus'
provision of Internet Data Center Services.
(5) Items marked with an asterisk are to be invoiced by Exodus on a "when
activated by Customer" basis.
ACCEPTANCE (CUSTOMER TO COMPLETE):
Installation Date N/A
----------------------------------------------------
(Must be between 15 and 30 days after acceptance date below)
CUSTOMER HAS READ, UNDERSTANDS AND ACCEPTS THIS OFFER AND HEREBY SUBMITS THIS
ORDER.
Accepted by: /s/ JEREMY LENT Date: JANUARY 23, 1998
---------------------------- -------------------------
(Authorized Signature) (Date executed and
delivered to Exodus)
Print Name: JEREMY LENT
-----------------------------
Title: Chief Executive Officer
----------------------------------
Exodus Communications, Inc. Confidential
<PAGE> 8
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES ORDER FORM
SERVICES AND PRICES
CUSTOMER: Internet Access Financial Corporation
Form No: 1222-3
IMPORTANT INFORMATION:
(1) By submitting this Internet Data Center Services Order Form (Form) to
Exodus Communications, Inc. (Exodus), Customer hereby places an order for
the Internet Data Center Services described herein pursuant to the terms
and conditions of the Internet Data Center Services Agreement between
Customer and Exodus (IDC Agreement).
(2) Billing will commence on the earlier of the Installation Date indicated
below or the date Customer actually installs its equipment or Exodus
begins providing Internet Data Center Services.
(3) Exodus will provide the Internet Data Center Services pursuant to the
terms and conditions of the IDC Agreement, which incorporates this Form.
The terms of this Form supersede, and by accepting this Form Exodus hereby
rejects, any conflicting or additional terms provided by Customer in
connection with Exodus' provision of Internet Data Center Services. If
there is a conflict between this Form and any other Form provided by
Customer and accepted by Exodus, the Form with the latest date will
control.
(4) Exodus will not be bound by or required to provide Internet Data Center
Services pursuant to this Form or the IDC Agreement until each is signed
by an authorized representative of Exodus.
(5) The four pages of performance standards attached to Attachment I are
hereby incorporated by reference. A material breach of such performance
standards (which, for purposes of this Agreement shall mean (i) a single
variance of more than 10%, (ii) more than five variances of less than 10%
or (iii) two or more consecutive months with fewer than five (but more
than one) variances of less than 10%) shall constitute a material breach
within the meaning of Section 8(b) of Attachment 2.
CUSTOMER TO COMPLETE:
CUSTOMER HAS READ, UNDERSTANDS AND HEREBY SUBMITS THIS ORDER.
Installation Date: October 20, 1997
Submitted By: /s/ JEREMY LENT Date: DECEMBER 23, 1997
---------------------------- -------------------------
(Authorized Signature (Effective Date of
IDC Agreement)
Print Name: /s/ JEREMY LENT
------------------------------
Title: Chief Executive Officer
-----------------------------------
EXODUS COMMUNICATIONS, INC. ACCEPTANCE
/s/ [SIG] Date: 3/26/98
---------------------------------- ------------------------------
(Authorized Signature)
<PAGE> 9
[EXODUS LOGO]
Virtual Data Center
DESCRIPTION
The Virtual Data Center (VDC) product is a secured private area within the
Exodus Communications Data Center. It is designed with steel mesh walls and
a key lock sliding access door. The VDC provides ultimate space flexibility
for customers with non-rack mountable equipment and/or with a large number
of servers. The VDC is designed to house computer and networking equipment
(see below for specifications).
SPECIFICATIONS
EQUIPMENT POWER DIMENSIONS
Virtual Data - Secure Area 4 dedicated 20 7'W x 9'D
Center - 4 Racks Amp Circuits
- 16 Shelves
- Wiring Channels
EXO-VDC - Wiring Patch Panel
- Power Distribution Bars
- 3 Customer Access Cards
- 1 POTS line cross-connect
- Exodus Operations will review customer equipment inventory list and
determine type of rack (19" or 23") to be used during installation phase.
- All customers have access to temporary remote phones while visiting Exodus
Internet Data Centers. Phones will allow free local calling ONLY. Long
distance calling will require calling card.
SERVICES INCLUDED
Managed Services
All CyberRack products include the following basic services for ONE
web server. Please refer to their individual specification sheets for
detailed information.
- 24x7 Network Monitoring
- 24x7 URL Monitoring
- 24x7 Reboot Service
DNS
- Exodus will setup or transfer up to two domain names. First
year's InterNIC charges will be billed back to the customer.
InterNIC will bill all subsequent domain name charges directly to
the customer.
- Exodus will provide primary DNS support for up to two domain
names and an unlimited number under secondary DNS.
<PAGE> 10
Project Management
Each new Exodus customer will be assigned a Project Manager to
coordinate and manage the installation process. The Exodus Project
Manager works closely with customer personnel to ensure that the
installation is successful. Some of the key tasks performed by the
Project Manager include:
- Development of the Installation Plan
- Design of the Space Layout Plan
- Coordinate space build out, domain registration and/or DNS
transfer
- Coordinate and assist with the installation of customer's
equipment
- Collect key customer data including contacts and operating
procedures to be supported by Exodus
- Customer setup in the Exodus Network Control Center for on-going
monitoring and technical support
VDC Setup
Setup charges include all of the following:
- Infrastructure equipment setup
- Power wiring and circuit setup
- POTS line cross connect installation
Power
All Exodus Internet Data Centers are facilitized with 20 Amp circuits.
All circuits provide inline UPS and diesel generator backup in the
event of grid power failure. To conform to electrical code for peak
power use, maximum power usage is limited to 75% of circuit value
(i.e. 15 amps for a 20 Amp circuit). Exodus reserves the right to
audit customer circuits at random to verify power usage.
Custom circuit configurations can be accommodated, however, depending
on exact customer requirements additional charges and lead times may
apply. Please refer to the below chart regarding power specifications
for standard product configurations.
NUMBER OF MAXIMUM POWER ADDITIONAL
20 AMP CIRCUITS USAGE PURCHASABLE
INCLUDED (AMPS) POWER INCREMENTS
Virtual Data Center 4 60 20 Amp Circuits
EXO-VDC
SERVICES NOT INCLUDED
- Customer equipment installation and wiring
PAGE 2 OF 2
<PAGE> 11
[EXODUS LOGO]
Cross-Connnet Services
PART NUMBER
EXO-XCON-RDS3 DS3 Pass thru Connection for Remote Access Only
EXO-XCON-IDS3 DS3 Pass thru connection for Remote Access and/or Internet
Access
EXO-XCON-IT1 T1 Cross-connection for Remote Access and/or Internet Access
(includes provisioning)
EX0-XCON-RT1 T1 Cross-connection for Remote Access Only (includes
provisioning)
EXO-XCON-ISDN ISDN Cross-connection
EXO-XCON-POTS POTS Cross-connection
EXO-XCON-ISU Setup - T1 or DS3 for Internet Access
DESCRIPTION
Exodus Communications Cross-connect services enable customers can to
gain remote access to their colocated server(s). In some cases
customers may also wish to enable Internet access through
cross-connected lines.
Under this service offering Exodus will install a network line
directly from the telco termination point in the Data Center to the
customer colocation area. Cross-connect service is made available to
customers who have purchased dedicated network services. Exodus offers
two options to satisfy the typical requirements:
- Cross-connect line to be used ONLY for remote access to servers
- Cross-connect line to be used for remote access to servers and
Internet access
Exodus provides provisioning services for T1 and DS3 lines but
requires customers to provision POTS (telephone) and ISDN lines.
LINES TYPES SUPPORTED
- POTS (telephone line)
- ISDN
- T1 Customers must use Exodus recommended devices to ensure proper
support and serviceability.
- DS3 (pass thru) - In the case of DS3 lines, Exodus will instruct
the telco provider to run a line directly from their termination
point to the customer colocation area.
SERVICE INCLUDES
- Note the first POTS line cross-connect is included with the
purchase of each Site Service Product.
- Line installation
- Physical cable test from telco termination point to site network
or termination point (except DS3)
- Configuring customer premise IP addresses into Exodus network
devices to enable cross-connected line(s) to be used for Internet
access (optional).
<PAGE> 12
[EXODUS LOGO]
24x7 Reboot Service
PART NUMBER
EXO-SARB 24x7 Reboot Service (per server/device)
DESCRIPTION
Under this service offering, Exodus Communications operations
personnel can act as your remote "hands on-site" when you cannot
physically be near your system. It does NOT provide for any system
administration level tasks. Includes 5 incident calls per server PER
month for any of the below services.
SERVICES INCLUDED
Customer permission for Exodus personnel access to customer colocation
area is required.
- Reboot or power-cycle colocated devices (from keyboard or power
switch)
- Customer to provide reboot procedures and any failure mode
procedures. Exodus personnel will not deviate from these
procedures without prior approval from the customer.
- Provide onsite equipment LED status feedback
- Provides confirmation of reboot procedure completion
SERVICES NOT INCLUDED
- Verification of a successful system reboot
- Reboot failure troubleshooting and problem resolution
RESPONSE TIMES
Exodus personnel will respond immediately to any reboot requests.
CUSTOMER ESCALATION
Exodus personnel will notify customer immediately via phone of any
problem conditions that occur in the reboot process.
<PAGE> 13
[EXODUS LOGO]
24x7 Network Device Monitoring
PART NUMBER
EXO-MONW 24x7 Network Device Monitoring (per Device)
DESCRIPTION
Under this service offering the Exodus Communications will monitor a
colocation network device using the IP (ICMP) protocol. The monitoring
system uses the Ping utility application to poll the status of the
network device every five minutes.
SERVICES INCLUDED
In the event the monitoring system does not receive a valid Ping
response from the target node/device, it will then retry pings in
rapid succession over a short period time. If there is still no
response the monitoring system will then page personnel in the Network
Control Center (NCC).
The attending NCC person will then try to identify and resolve the
problem (if an Exodus device/network problem). Typically ping response
failure may occur due the following reasons:
- The Server(s) itself is down (assuming it is the target device)
- The line to the server is down
- The device/port on which the server is connected may be down
(i.e. router/switch/hub port).
- In some cases a server may be too busy to respond to a ping
request
CUSTOMER ESCALATION PROCESS
The customer will be notified initially of a potentially down or
unreachable device. In parallel the NCC staff will troubleshoot the
problem and escalate the situation to a senior Network Engineer (as
appropriate).
<PAGE> 14
[EXODUS LOGO]
24x7 Network Device Monitoring
PART NUMBER
EXO-MONW 24x7 Network Device Monitoring (per Device)
DESCRIPTION
Under this service offering the Exodus Communications will monitor a
colocation network device using the IP (ICMP) protocol. The monitoring
system uses the Ping utility application to poll the status of the
network device every five minutes.
SERVICES INCLUDED
In the event the monitoring system does not receive a valid Ping
response from the target node/device, it will then retry pings in
rapid succession over a short period time. If there is still no
response the monitoring system will then page personnel in the Network
Control Center (NCC).
The attending NCC person will then try to identify and resolve the
problem (if an Exodus device/network problem). Typically ping response
failure may occur due the following reasons:
- The Server(s) itself is down ( assuming it is the target device)
- The line to the server is down
- The device/port on which the server is connected may be down
(i.e. router/switch/hub port).
- In some cases a server may be too busy to respond to a ping
request
CUSTOMER ESCALATION PROCESS
The customer will be notified initially of a potentially down or
unreachable device. In parallel the NCC staff will troubleshoot the
problem and escalate the situation to a senior Network Engineer (as
appropriate).
<PAGE> 15
[EXODUS LOGO]
24x7 URL Monitoring
PART NUMBER
EXO-MOWB 24x7 URL Monitoring (per URL)
DESCRIPTION
The Exodus Communications monitoring system will 24x7 monitor a
specific URL on the customer web site using the standard http
protocol.
SERVICES INCLUDED
The system uses the http protocol to initiate a connection, every five
minutes, to the web server application and initiates a program to
exchange information for status verification. The information exchange
process reads a text string from the default web page of the website
(i.e. www.companyname.com/default.htm). A successful http response is
completed when the text string is received by the monitoring system.
CUSTOMER ESCALATION PROCESS
If the Exodus monitoring system receives no response an alert is sent
to the Network Control Center (NCC console and the staff is paged. If
the web server is verified to be down the appropriate customer contact
is then made aware of the situation by phone.
- Note in certain cases web server loading may affect the response
time to the http monitoring system.
<PAGE> 16
[EXODUS LOGO]
24x7 URL Monitoring
PART NUMBER
EXO-MOWB 24x7 URL Monitoring (per URL)
DESCRIPTION
The Exodus Communications monitoring system will 24x7 monitor a
specific URL on the customer web site using the standard http
protocol.
SERVICES INCLUDED
The system uses the http protocol to initiate a connection, every five
minutes, to the web server application and initiates a program to
exchange information for status verification. The information exchange
process reads a text string from the default web page of the website
(i.e. www.companyname.com/default.htm). A successful http response is
completed when the text string is received by the monitoring system.
CUSTOMER ESCALATION PROCESS
If the Exodus monitoring system receives no response an alert is sent
to the Network Control Center (NCC) console and the staff is paged. If
the web server is verified to be down the appropriate customer contact
is then made aware of the situation by phone.
- Note in certain cases web server loading may affect the response
time to the http monitoring system.
<PAGE> 17
[EXODUS LOGO]
Tape Media Management
PART NUMBER
EXO-BCMM Tape Media Management
EXO-BCMM-SU Setup - Tape Media Management
DESCRIPTION
Exodus Communications operations personnel will remove and insert
backup tapes from a customer provided tape or jukebox type device
(tapes to be provided by customer). Exodus personnel can conduct this
procedure according to a predefined schedule or on an on-demand basis,
but not more often than 1 tape per drive per day.
SERVICES INCLUDED
- All services are provided during the 8am-10pm timeframe
- Insert new or recycled tapes (i.e. DLT, 8mm) into a jukebox or
tape device on a (once) daily or (once) weekly basis.
- Remove tapes from a jukebox or tape device
- Catalog and place removed tapes in customer designated or
Exodus-owned tape storage container
- Coordinate weekly off-site storage for up to 3 tapes. (Note:
Third party storage is not part of the Exodus tape backup
service. It is a separate fee and must be quoted separately.)
SERVICES NOT INCLUDED
- Troubleshooting and problem resolution of tape or jukebox device
- Tape media or backup device
- Troubleshooting and problem resolution of backup scripts or
programs
RESPONSE TIMES FOR TAPE RETRIEVAL
- 1 hour response for tape insertion or removal requests of tapes
located in customer co-location space.
- 2 hour, 4 hour and 24 hour for retrieval of tapes located in
off-site storage at Arcus. Customer will incur additional per
incident charges from Arcus.
REPORTING
Exodus administrators will provide via email, a monthly tape catalog,
listing tapes on-site and off-site.
CUSTOMER ESCALATION
Exodus administrators will notify customers via phone and email of any
problem conditions that occur in the tape exchange process.
1
<PAGE> 18
FIREWALL SERVICE
PART NUMBERS: EXO-SSFW-CK, EXO-SSFW-RP, EXO-SSFW-SU, EXO-SSFW-CSLT,
DESCRIPTION
PART NUMBER PRODUCT DESCRIPTION
EXO-SSFW-RP Exodus dedicated Firewall Service on Raptor Eagle application
gateway proxy(1),(2)
EXO-SSFW-CK Exodus dedicated Firewall Service on Checkpoint Firewall-1
multi-layer inspection system(1),(3)
EXO-SSFW-SU Setup, installation and configuration of firewall
EXO-SSFW-CSLT Security consultation for network design and policy
consideration
SERVICES INCLUDED
- 24x7 network/firewall monitoring using one of the following (or
similar tools):
- WebWatcher, HP OpenView using SNMP traps, or Computer Associates
Unicenter
- Log file reporting for internal Exodus use to track problems
- System Administration for firewall
- Firewall Configuration Data Backup (once a week or whenever there
is a configuration change)
- 1.5 hour response time to replace faulty or down system
- 15 minute escalation to security management during security
threat situation
- 48 hour response time for configuration and policy changes
- Remote access support for up to 5 or fewer clients. For Raptor
based services, customer must first obtain a license from Raptor.
----------
(1) Firewall service will run on the following hardware platform supported and
owned by Exodus: Sun Ultra 1/170, Solaris 2.51, 128 MB RAM, 10/100 NIC card
(2) Raptor Eagle Remote, 50 node license (v. 4.0)
(3) Checkpoint Firewall-1, 25 node license (v. 3.0)
<PAGE> 19
SERVICES NOT INCLUDED
- Load balancing feature
- Redundancy or fault tolerance
- Direct access to network security engineering. All contact
through NCC (email: [email protected])
REPORTING
Customer will be contacted when the Exodus Managed Services Team is
tracking a problem event when an alarm is triggered. Customer will be
kept abreast of problem resolution status.
CALL BACK RESPONSE TIMES AND SEVERITY LEVELS
Exodus will assign the severity level to various issues that might be
encountered based on the following guidelines and assign the following
call back times. Exodus will prioritize problem situation resolution
based on severity level.
CALL BACK
SEVERITY DESCRIPTION RESPONSE TIME
-------- ----------- -------------
1 System down condition significantly impacting 15 minutes
customer performance.
Example: system down, primary network down
2 System performance degraded; however still working; 15 minutes
customer performance still acceptable.
3 Error not affecting performance. 24 hours
Example: I could not connect to a certain FTP site
from behind firewall, but I could through my ISP.
4 Configuration change request. 48 hours
CUSTOMER ESCALATION
Exodus administrators will notify customers via phone and/or email of
any problem conditions that occur during the event management process.
FIREWALL SERVICE EXCLUDED FROM SERVICE LEVEL WARRANTY
Because Exodus cannot provide firewall service without relying
separately on hardware and software provided by third parties that is
being updated constantly, the firewall service is not included in the
service level warranty that Exodus currently provides customer under
section 5.2(a) of the standard terms and conditions of service. In
lieu of the warranty, Exodus commits to addressing any problems in
accordance with the response times and severity levels described
above. If customer's Web site becomes inoperable as a result of the
problem with the firewall service, Exodus will not credit customer's
account for such downtimes.
PAGE 2
<PAGE> 20
ATTACHMENT 2
TERMS AND CONDITIONS
1. DEFINITIONS.
1.1 "Customer Area" means the portion of the Internet Data Centers made
available to Customer hereunder for the placement of Customer Equipment.
1.2 "Customer's Business" means Customer's services and/or products to be made
available via the Internet in connection with this Agreement.
1.3 "Customer Equipment" means Customer's computer hardware and other tangible
equipment identified in Attachment 4, as amended from time to time, that
Customer places in the Customer Area pursuant to this Agreement. All changes in
Customer Equipment, including but not limited to installation and removal of
Customer Equipment, must be approved by Exodus.
1.4 "Customer Materials" means all software, data, information contained in
documentation, and other information and intangibles used by Customer to
operate, install, and/or maintain Customer's Business through the Customer
Equipment or provided to Exodus by Customer for such purposes.
1.5 "Installation Date" means the earlier to occur of (i) the date indicated in
the Services and Price Form by which Customer intends to install Customer
Equipment in the Customer Area and (ii) the date the Customer Equipment is
actually installed and operational.
1.6 "Internet Data Centers" means the sites owned or leased by Exodus containing
the Customer Area and equipment used by Exodus to provide Internet Data Center
Services.
1.7 "Internet Data Center Services" means the services and other benefits to be
provided by Exodus to Customer under this Agreement, as described in Attachment
1, as amended from time to time, or substantially similar services if, in the
reasonable opinion of Exodus, such substantially similar services would provide
Customer with substantially similar benefits.
1.8 "Representatives" means the individuals identified and authorized by
Customer to have access to the Internet Data Centers and the Customer Area in
accordance with this Agreement, as identified on Attachment 5. The
Representatives may be changed by Customer from time to time by written notice
to Exodus.
1.9 "Rules and Regulations" means the general rules and regulations issued by
Exodus relating to its provision of Internet Data Center Services to its
customers, the current version of which is attached as Attachment 3, which may
be updated by Exodus from time.
2. INTERNET DATA CENTER SERVICES.
Subject to the terms and conditions of this Agreement, during the term of this
Agreement, Exodus will provide to Customer the Internet Data Center Services.
3. FEES AND BILLING.
3.1 Fees. Customer will pay all fees due hereunder according to the Services and
Price Form attached as Attachment 1, as amended from time to time. Exodus may
increase the fees after the first (lst) anniversary of the Installation Date,
and Customer agrees to pay such increased fees.
3.2 Billing Commencement. Billing for Internet Data Center Services indicated in
the initial Services and Price Form shall commence on the Installation Date,
regardless of whether Customer has installed the Customer Equipment or commenced
use of the Internet Data Center Services; provided, however, that if Customer is
unable to install the Customer Equipment and/or use the Internet Data Center
Services by the Installation Date due to the fault of Exodus, billing will not
begin until the date Exodus has remedied such fault. In the event that the
Services and Price Form is amended after the Installation Date to include
additional Internet Data Center Services, billing for such services shall
commence on the date Exodus first provides such additional Internet Data Center
Services to Customer.
3.3 Billing and Payment Terms. Customer will be billed monthly in advance of the
provision of Internet Data Center Services, and payment of such fees will be due
within thirty (30) days of the date of each Exodus invoice. All payments will be
made in U.S. dollars at Exodus' address set forth in this Agreement or at such
other address, as Exodus may from time to time indicate by proper notice to
Customer. Late payments hereunder will accrue interest at a rate of one and
one-half percent (1 1/2%) per month, or the highest rate allowed by applicable
law, whichever is lower. If in its judgment Exodus determines that Customer is
not creditworthy or is otherwise not financially secure, Exodus may, upon
written notice to Customer, modify the payment terms to require fall payment
before the provision of Internet Data Center Services or other assurances to
secure Customer's payment obligations hereunder.
Page 1
<PAGE> 21
3.4 Taxes. All payments required by this Agreement are exclusive of all
national, state, municipal or other governmental excise, sales, value-added,
use, personal property, and occupational taxes, excises, withholding taxes and
obligations and other levies now in force or enacted in the future, all of which
Customer will be responsible for and will pay in full, except for taxes based on
Exodus' net income.
4. CUSTOMER'S OBLIGATIONS.
4.1 Compliance with Law. Customer agrees that in connection with the exercise of
its rights and performance of its obligations under this Agreement, Customer
will comply with all applicable laws and regulations. Customer acknowledges that
Exodus exercises no control whatsoever over the content of the information
passing through its Internet Data Centers, and that it is the sole
responsibility of Customer to ensure that the information it transmits and
receives complies with all applicable laws and regulations.
4.2 Compliance with Rules and Regulations. Customer agrees that it will comply
at all times with Exodus' Rules and Regulations in existence from time to time.
4.3 Customer's Costs. CUSTOMER AGREES THAT IT WILL BE SOLELY RESPONSIBLE, AND AT
EXODUS'S REQUEST WILL REIMBURSE EXODUS, FOR ALL COSTS AND EXPENSES (OTHER THAN
THOSE INCLUDED AS PART OF THE INTERNET DATA CENTER SERVICES) ASSOCIATED WITH
PLACING, INSTALLING, MAINTAINING, OPERATING, AND REMOVING THE CUSTOMER EQUIPMENT
AND CUSTOMER MATERIALS, INCLUDING BUT NOT LIMITED TO, ALL NECESSARY PREPARATIONS
REQUIRED TO COMPLY WITH THE RULES AND REGULATIONS.
4.4 Access and Security. CUSTOMER WILL BE FULLY RESPONSIBLE FOR ANY CHARGES,
COSTS, EXPENSES (OTHER THAN THOSE INCLUDED IN THE INTERNET DATA CENTER
SERVICES), AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS USE OF, OR ACCESS TO,
THE INTERNET DATA CENTERS AND/OR CUSTOMER AREA, INCLUDING BUT NOT LIMITED TO ANY
UNAUTHORIZED USE OF ANY ACCESS DEVICES PROVIDED By EXODUS HEREUNDER. EXCEPT WITH
THE ADVANCED WRITTEN CONSENT OF EXODUS, CUSTOMER'S ACCESS TO THE INTERNET DATA
CENTERS WILL BE LIMITED SOLELY TO ITS REPRESENTATIVES LISTED ON THE REGISTRATION
FORM ATTACHED HERETO AS ATTACHMENT 5, AS AMENDED FROM TIME TO TIME.
4.5 No Competitive Services. Customer may not at any time permit any Internet
Data Center Services to be utilized for the provision of any services that
compete with any Exodus services, without Exodus' prior written consent.
4.6 Insurance.
(a) Minimum Levels. Customer will keep in force and effect during the term
of this Agreement: (i) comprehensive general liability insurance in an amount
not less than $5 million per occurrence for bodily injury and property damage;
(ii) employees liability insurance in an amount not less than $1 million per
occurrence; and (iii) workers' compensation insurance in any amount not less
than that required by applicable law. Customer also agrees that it and its
agents (including contractors and subcontractors) will maintain other insurance
at levels no less than those required by applicable law and customary in
Customer's and its agents' industries.
(b) Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will furnish Exodus with certificates
of insurance which evidence the minimum levels of insurance set forth above.
(c) Naming Exodus as an Additional Insured. Customer agrees that prior to
the installation of any Customer Equipment, Customer will cause its insurance
provider(s) to name Exodus as an additional insured and notify Exodus in writing
of the effective date thereof
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment and Customer Materials. Customer represents and
warrants that it owns or has the legal right and authority, and will continue to
own or maintain the legal right and authority during the term of this Agreement,
to place and use the Customer Equipment as contemplated by this Agreement, and
to use, modify, transmit, and distribute the Customer Materials without
infringing, misappropriating, or otherwise violating any intellectual property
rights of any third party. Customer further represents and warrants that its
placement, arrangement and use of the Customer Equipment in the Internet Data
Centers complies with the Customer Equipment and Customer Materials
Manufacturer's environmental and other specifications.
(b) Rules and Regulations. Customer has read the Rules and Regulations and
represents and warrants that Customer and Customer's Business are currently in
full compliance with the Rules and Regulations, and will remain so at all times
during the term of this Agreement.
(c) Customer's Business. Customer is familiar with the laws and regulations
applicable to Customer's Business. Customer represents and warrants that
Customer's Business does not as of the Installation Date, and will not during
the term of this Agreement, contain or transmit any material that would violate
any applicable local, state, national, foreign or international
Page 2
<PAGE> 22
law. in the event of any breach, or reasonably anticipated breach, of such
warranty, in addition to any other remedies available at law or in equity,
Exodus will have the right immediately, in Exodus' sole discretion: (i) to
terminate or restrict access to any such materials in any manner; and/or (ii) to
suspend any related Internet Data Center Services.
5.2 Warranties and Disclaimers by Exodus.
(a) Service Level Warranty. In the event Customer is unable to transmit and
receive information from Exodus' Internet Data Centers to other portions of the
Internet and Customer notifies Exodus immediately of such event and Exodus
determines in its reasonable judgment that such inability was caused by Exodus'
failure to provide Internet Data Center Services for reasons within Exodus'
reasonable control and not as a result of any actions or inactions of Customer
or any third parties, Exodus will, upon Customer's request, credit Customer's
account as follows: If Exodus failed to provide the Internet Data Center
Services for (i) more than two (2) consecutive hours in a calendar month, Exodus
will credit Customer's account the connectivity charges for one (1) day of
service; and (ii) more than eight (8) consecutive hours in a calendar month,
Exodus will credit Customer's account the connectivity charges for one (1) week
of service. Customer may receive only one of the foregoing credits in any single
calendar month, regardless of the number of such occurrences. Exodus' scheduled
maintenance of the Internet Data Centers and Internet Data Center Services, as
described in the Rules and Regulations, shall not be deemed to be a failure of
Exodus to provide Internet Data Center Services. THIS SECTION 5.2(a) STATES
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY (OTHER THAN TERMINATION OF THIS AGREEMENT)
FOR ANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.
(b) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN
SUBSECTION (a) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS PROVIDED AND SPACE
MADE AVAILABLE By EXODUS HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVAILABLE
ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA CENTERS IS AT ITS
OWN RISK. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXODUS
DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES PROVIDED HEREUNDER WILL
BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(c) Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. WHILE EXODUS' INTERNET DATA CENTER SERVICES PROVIDE CUSTOMERS WITH
CONNECTIVITY TO THE INTERNET, EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF
INFORMATION TO OR FROM EXODUS' INTERNET DATA CENTERS TO OTHER PORTIONS OF THE
INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET
SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS
CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH EXODUS' CUSTOMERS'
CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED.
ALTHOUGH EXODUS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT
DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT GUARANTEE THAT
THEY WILL NOT OCCUR. ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL LIABILITY
RESULTING FROM OR RELATED TO SUCH EVENTS.
6. LIMITATIONS OF LIABILITY.
6.1 Personal Injury. EACH REPRESENTATIVE, AND ANY OTHER PERSONS, VISITING THE
INTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO LIABILITY
WHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN
EXODUS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Materials.
(a) CERTAIN CUSTOMER EQUIPMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER
EQUIPMENT LOCATED ON CYBERRACKS, MAY BE DIRECTLY ACCESSIBLE BY OTHER CUSTOMERS.
EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER
EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. TO THE EXTENT EXODUS IS LIABLE FOR ANY DAMAGE TO, OR LOSS
OF, THE CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY
TO THE THEN-CURRENT VALUE OF THE CUSTOMER EQUIPMENT.
(b) EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER
MATERIALS RESULTING FROM ANY CAUSE WHATSOEVER.
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1 AND 6.2, IN NO EVENT WILL
EXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR:
(a) ANY CLAIMS ARISING OUT OF OR RELATED TO THE CUSTOMER EQUIPMENT, THE
CUSTOMER
Page 3
<PAGE> 23
MATERIALS, THE CUSTOMER'S BUSINESS, OR OTHERWISE; AND
(b) ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY,
RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES,
LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR OF ANY CUSTOMER
EQUIPMENT OR CUSTOMER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY OR OTHERWISE.
6.4 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, EXODUS'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY
CUSTOMER To EXODUS HEREUNDER FOR THE PRIOR TWELVE (12) MONTH PERIOD.
6.5 Customer's Insurance. Customer agrees that it will not pursue any claims
against Exodus for any liability Exodus may have under this Agreement until
Customer first makes claims against Customer's insurance provider(s) and such
insurance provider(s) finally resolve(s) such claims.
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges
that Exodus has set its prices and entered into this Agreement in reliance upon
the limitations of liability and the disclaimers of warranties and damages set
forth herein, and that the same form an essential basis of the bargain between
the parties. The parties agree that the limitations and exclusions of liability
and disclaimers specified in this Agreement will survive and apply even if found
to have failed of their essential purpose.
7. INDEMNIFICATION.
7.1 Exodus' Indemnification of Customer. Exodus will indemnify and hold
Customer, its affiliates, shareholders, officers, directors, employees, agents,
and Representatives harmless from and against any and all reasonable costs,
liabilities, losses, and expenses (including, but not limited to, reasonable
attorneys' fees) arising out of (i) the infringement of any third party
registered U.S. copyright or issued U.S. patent resulting from the provision of
Internet Data Center Services pursuant to this Agreement (but excluding any
infringement contributorily caused by Customer's Business, Customer Equipment or
Customer Materials) and (ii) personal injury to Customer's Representatives from
Exodus's gross negligence or willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify and hold
Exodus, its affiliates, shareholders, officers, directors, employees, agents and
customers harmless from and against any and all costs, liabilities, losses, and
expenses (including, but not limited to, reasonable attorneys' fees and fees of
experts) arising out of any claim, suit, action, or proceeding (each, an
"Action"), and Customer will pay any settlement reached or judgment entered
thereon against Exodus or such third party, to the extent such Action arises
from an allegation that any of the following has occurred or will occur:
(a) with respect to the Customer's Business, Customer Materials, or
Customer Equipment: (i) infringement or misappropriation of any intellectual
property rights; (ii) defamation, libel, slander, obscenity, pornography, or
violation of the rights of privacy or publicity; or (iii) spamming, or any other
offensive, harassing or illegal conduct or violation of the Rules and
Regulations; or
(b) any damage or destruction to the Customer Area, the Internet Data
Centers or the equipment of Exodus or any other customer by Customer or
Representative(s) or Customer's designees; or
(c) any other damage arising from the Customer Equipment, Customer
Materials, or Customer's Business.
7.3 Notice. Each party will provide the other party prompt written notice upon
of the existence of any such event of which it becomes aware, and an opportunity
to participate in the defense thereof
8. TERM AND TERMINATION.
8.1 Term. This Agreement will be effective for a period of two (2) years from
the Installation Date, unless earlier terminated according to the provisions of
this Section 8. The Agreement will automatically renew for additional terms of
one (1) year each.
8.2 Termination.
(a) For Convenience.
(i) By Customer During First Thirty Days. Customer may terminate this
Agreement for convenience by providing written notice to Exodus at any time
during the thirty (30) day period beginning on the Installation Date.
(ii) By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the second (2nd) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other party.
(b) For Cause. Either party will have the right to terminate this Agreement
if: (i) the other party breaches any term or condition of this Agreement and
fails to cure
Page 4
<PAGE> 24
such breach within thirty (30) days after written notice of the same, except in
the case of failure to pay fees, which must be cured within five (5) days after
receipt of written notice from Exodus; (ii) the other party becomes the subject
of a voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors; or (iii) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
(c) By Customer for Failure to Agree on Fee Increases. If Exodus increases
the fees after the first (1st) anniversary of the Installation Date, Customer
may terminate this Agreement if it refuses to pay such increased fees by
providing written notice to Exodus within thirty (30) days of the effective date
of any such increase. The effective date of such termination will be ninety (90)
days after Exodus receives notice of such termination.
8.3 No Liability for Termination. Neither party will be liable to the other for
any termination or expiration of this Agreement in accordance with its terms.
8.4 Effect of Termination. Upon the effective date of expiration or termination
of this Agreement:
(a) Exodus will immediately cease providing the Internet Data Center
Services;
(b) any and all payment obligations of Customer which have accrued as of
such expiration or termination will become due immediately;
(c) within thirty (30) days after such expiration or termination, each
party will return all Confidential Information of the other party in its
possession at the time of expiration or termination and will not make or retain
any copies of such Confidential Information except as required to comply with
any applicable legal or accounting record keeping requirement; and
(d) Customer will remove from the Internet Data Centers all Customer
Equipment, Customer Materials, and any of its other property within the Internet
Data Centers within five (5) days of such expiration or termination and return
the Customer Area to Exodus in the same condition as it was on the Installation
Date, normal wear and tear excepted. If Customer does not remove such property
within such five-day period, Exodus will have the option to (i) move any and all
such property to secure storage and charge Customer for the cost of such removal
and storage, and/or (ii) liquidate the property in any reasonable manner.
8.5 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 3, 4, 5, 6, 7, 8, 9, and 10.
9. CONFIDENTIAL INFORMATION.
9.1 Confidential Information. Each party acknowledges that it will have access
to certain confidential information of the other party concerning the other
party's business, plans, customers, technology, and products, including the
terms and conditions of this Agreement ("Confidential Information").
Confidential Information will include, but not be limited to, each party's
proprietary software and customer information. Each party agrees that it will
not use in any way, for its own account or the account of any third party,
except as expressly permitted by this Agreement, nor disclose to any third party
(except as required by law or to that party's attorneys, accountants and other
advisors as reasonably necessary), any of the other party's Confidential
Information and will take reasonable precautions to protect the confidentiality
of such information.
9.2 Exceptions. Information will not be deemed Confidential Information
hereunder if such information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly from a source other
than one having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing party; (iii) becomes publicly
known or otherwise ceases to be secret or confidential, except through a breach
of this Agreement by the receiving party; or (iv) is independently developed by
the receiving party.
10. MISCELLANEOUS PROVISIONS.
10.1 Governing Law. This Agreement is made under and will be governed by and
construed in accordance with the laws of the State of California, United States
of America (except that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods.
10.2 Arbitration. Any dispute relating to the terms, interpretation or
performance of this Agreement (other than claims for preliminary injunctive
relief or other prejudgment remedies) will be resolved at the request of either
party through binding arbitration. Arbitration will be conducted in Santa Clara
County, California, under the rules and procedures of the Judicial Arbitration
and Mediation Society ("JAMS"). The parties will request that JAMS appoint a
single arbitrator possessing knowledge of online services agreements; however
the
Page 5
<PAGE> 25
arbitration will proceed even if such a person is unavailable.
10.3 Force Majeure. Except for the obligation to pay money, neither party will
be liable for any failure or delay in its performance under this Agreement due
to any cause beyond its reasonable control, including act of war, acts of God,
earthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
governmental act or failure of the Internet, provided that the delayed party:
(a) gives the other party prompt notice of such cause, and (b) uses its
reasonable commercial efforts to correct promptly such failure or delay in
performance.
10.4 No Lease. This Agreement is a services agreement and is not intended to and
will not constitute a lease of any real or personal property. Customer
acknowledges and agrees that it has been granted only a license to occupy the
Customer Space and use the Internet Data Centers in accordance with this
Agreement, Customer has not been granted any real property interest in the
Customer Space or Internet Data Centers, and Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws, regulations, or
ordinances. For good cause, Exodus may suspend the right of any Representative
or other Customer personnel to visit the Internet Data Centers.
10.5 Inherently Dangerous Applications. The Internet Data Center are not
intended nor provided for use in connection with, and Customer will not use them
for, any nuclear, aviation, mass transit, life-support, or any other inherently
dangerous applications or services, the failure of which could result in death,
personal injury, catastrophic damage, or mass destruction.
10.6 Marketing. Customer agrees that Exodus may refer to Customer by trade name
and trademark, and may briefly describe Customer's Business, in Exodus'
marketing materials and web site. Customer hereby grants Exodus a license to use
any Customer trade names and trademarks solely in connection with the rights
granted to Exodus pursuant to this Section 10.6.
10.7 Government Regulations. Customer will not export, re-export, transfer, or
make available, whether directly or indirectly, any regulated item or
information to anyone outside the U.S. in connection with this Agreement without
first complying with all export control laws and regulations which may be
imposed by the U.S. Government and any country or organization of nations within
whose jurisdiction Customer operates or does business.
10.8 Non-Solicitation. During the period beginning on the Installation Data and
ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, Customer and its affiliates agree that
they will not, directly or indirectly, solicit or attempt to solicit for
employment any persons employed by Exodus during such period.
10.9 Severability. In the event any provision of this Agreement is held by a
tribunal of competent jurisdiction to be contrary to the law, the remaining
provisions of this Agreement will remain in fall force and effect.
10.10 Waiver. The waiver of any breach or default of this Agreement will not
constitute a waiver of any subsequent breach or default, and will not act to
amend or negate the rights of the waiving party.
10.11 Assignment. Neither party may assign its rights or delegate its duties
under this Agreement either in whole or in part without the prior written
consent of the other party, except that this Agreement may be assigned in whole
as part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets, provided that it notifies such other party at
least thirty (30) days prior to the effective date of such event. Any attempted
assignment or delegation without such consent will be void. This Agreement will
bind and inure to the benefit of each party's successors and permitted assigns.
10.12 Notices. Amy notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by
confirmed facsimile, or mailed by registered or certified mail, return receipt
requested, postage prepaid, in each case to the address of the receiving party
indicated on the signature page hereof, or at such other address as may
hereafter be furnished in writing by either party hereto to the other. Such
notice will be deemed to have been given as of the date it is delivered, mailed
or sent by facsimile or overnight courier, whichever is earlier.
10.13 Counterparts. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together shall
constitute one and the same instrument.
10.14 Relationship of Parties. Exodus and Customer are independent contractors
and this Agreement will not establish any relationship of partnership, joint
venture, employment, franchise or agency between Exodus and Customer. Neither
Exodus nor Customer will have the power to bind the other or incur obligations
on the other's behalf without the other's prior written consent, except as
otherwise expressly provided herein.
10.15 Priority. The following order of precedence will govern any conflict or
discrepancy between any portions of this Agreement:
(1) Attachment 6.
(2) Attachment 2.
(3) Attachment 3.
Page 6
<PAGE> 26
(4) Signature Page.
(5) Attachment 4.
(6) Attachment(s) 1 (in reverse chronological order).
(7) Attachment 5.
Page 7
<PAGE> 27
ATTACHMENT 3
RULES AND REGULATIONS
All Exodus Customers and their Representatives, employees, contractors,
customers, agents and users of Customers' online facilities are subject to these
Rules and Regulations in connection with their use of Exodus' Internet Data
Center Services.
ACCESS TO INTERNET DATA CENTERS
- Only those individuals identified by Customer as its Representatives
may access the Internet Data Centers. Customer may not allow any
unauthorized persons to access the Internet Data Centers.
- Customer will notify Exodus in writing of any change in Customer's
Representatives.
- Customer agrees to adhere at all times to security measures that have
been established by Exodus to protect the Internet Data Centers, its
equipment and its customers' equipment.
USE OF INTERNET DATA CENTER FACILITY
Customer must keep the Customer Area clean at all times. Customer may not
store any paper products or materials of any kind in the Customer Area (other
than equipment manuals).
Customer may not bring, or make use of, any of the following into the
Facility:
- Food or drink. - Alcohol or other intoxicants.
- Tobacco products. - Electro-magnetic devices.
- Explosives. - Radioactive materials.
- Weapons. - Photographic or recording equipment
of any kind (other than tape
back-up equipment).
- Chemicals.
- Illegal drugs.
EQUIPMENT AND CONNECTIONS
_ All Customer Equipment must be clearly labeled with Customer's name
(or code name provided to Exodus) and individual component
identification.
- Customers may not connect or disconnect any Customer Equipment or
other equipment except as specifically pre-approved by an authorized
employee of Exodus, at least 48 hours in advance of proposed
installation, except as otherwise approved by Exodus.
- All connections to and from Customer Equipment must be clearly
labeled.
- Customer Equipment must be configured and run at all times in
compliance with the manufacturer's specifications, including power
outlet, power consumption and clearance requirements.
- Exodus makes available at its Data Centers certain equipment for the
temporary use by Customers at the Internet Data Centers. This
equipment is provided on an "AS IS" basis without any warranties of
any kind. Customer may borrow and/or use any Exodus property or
equipment, at its own risk, after receiving permission from Exodus.
Page 1
<PAGE> 28
SCHEDULED MAINTENANCE
Periodically, Exodus will conduct routine scheduled maintenance of its
Internet Data Centers and Internet Data Center Services pursuant to a schedule
posted on Exodus' World Wide Web site
(http://www.bengi.exodus.net/exo_maintenance _ frame.html). During such time,
Customer's Equipment may be unable to transmit and receive data and Customer may
be unable to access its Equipment. Customer agrees to cooperate with Exodus
during the scheduled maintenance so that Exodus may keep such period or time to
a minimum.
MISCONDUCT
Customer and its Representatives may not:
- Misuse or abuse any Exodus property or equipment;
- Make any unauthorized use or interfere with any property or equipment
of any other Exodus customer;
- Harass any individual, including Exodus personnel and representatives
of other customers of Exodus; or
- Engage in any activity that is in violation of the law, or aid in
criminal activity while on Exodus property or in connection with the
Internet Data Center Services.
ONLINE CONDUCT
Customer will not, and will not permit any persons using Customer's online
facilities (including but not limited to Customer's Web site(s) and transmission
capabilities), to do any of the following:
- Send Spam (unsolicited commercial messages or communications in any
form)
- Infringe or misappropriate the intellectual property rights of others.
This includes posting copyrighted materials without appropriate
permission, using trademarks of others without appropriate permission
or attribution, and posting or distributing trade secret information
of others in violation of a duty of confidentiality.
- Violate the personal privacy rights of others. This includes
collecting and distributing information about Internet users without
their permission, except as expressly permitted by applicable law.
- Send, post or host harassing, abusive, libelous or obscene materials
or take any similar actions.
- Intentionally omit delete, forge or misrepresent transmission
information, including headers, return addressing information and IP
addresses or take any other actions intended to cloak Customer's or
its users' identity or contact information.
- Use the online facilities for any illegal purposes.
- Assist or permit any persons in engaging in any of the activities
described above.
If Customer becomes aware of any such activities, Customer will take all actions
necessary to stop such activities immediately, including, if necessary,
terminating Customer's user's access to Customer's online facilities.
Page 2
<PAGE> 29
MODIFICATION OF RULES AND REGULATIONS
Exodus reserves the right to change these Rules and Regulations at any
time. Customer is responsible for regularly reviewing these Rules and
Regulations. Continued use of the Internet Data Center Services following any
such changes shall constitute the Customer's acceptance of such changes.
Page 3
<PAGE> 30
ATTACHMENT 6
NEGOTIATED CHANGES
The following replaces and supersedes Sections 3.1, 3.3, 4.6, 5.2, 6.2, 6.4,
6.5, 8.1, 8.2, 8.4, 10.3, 10.6 and 10.8 of Attachment 2 (Terms and Conditions):
3.1 Fees. Customer will pay all fees due hereunder according to the Services and
Price Form attached as Attachment 1, as amended from time to time. Exodus may
increase the fees after the first (1st) anniversary of the Installation Date,
and Customer agrees to pay such mutually agreed upon increased fees. Throughout
term of the Agreement, IAFC will receive 48% discount off list price for any
setup fees associated with any Exodus product.
3.3 Billing and Payment Terms. Customer will be billed monthly in advance of the
provision of Internet Data Center Services, and payment of such fees will be due
within thirty (30) days of the date of each Exodus invoice. All payments will be
made in U.S. dollars at Exodus' address set forth in this Agreement or at such
other address, as Exodus may from time to time indicate by proper notice to
Customer. Late payments hereunder will accrue interest at a rate of one and
one-half percent (1 1/2%) per month, or the highest rate allowed by applicable
law, whichever is lower. If in its judgment Exodus determines that Customer is
not creditworthy due to a change in its credit history or financial condition,
is otherwise not financially secure or is sixty (60) days delinquent on one or
more invoices, Exodus may, upon written notice to Customer, modify the payment
terms to secure Customer's payment obligations hereunder.
4.6 Insurance.
(a) Minimum Levels. Customer will keep in force and effect during the term
of this Agreement: (i) comprehensive general liability insurance in an amount
not less than $3 million per occurrence for bodily injury and property damage;
(ii) employer's liability insurance in an amount not less than $1 million per
occurrence; and (iii) workers' compensation insurance in any amount not less
than that required by applicable law. Customer also agrees that it and its
agents (including contractors and subcontractors) will maintain other insurance
at levels no less than those required by applicable law and customary in
Customer's and its agents' industries.
5.2 (b) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN SUBSECTION
(a) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS PROVIDED AND SPACE MADE AVAILABLE
BY EXODUS HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVAILABLE ON AN "AS IS"
BASIS, AND CUSTOMER'S USE OF THE INTERNET DATA CENTERS IS AT ITS OWN RISK.
EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR
IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
<PAGE> 31
ATTACHMENT 6
NEGOTIATED CHANGES
NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR
TRADE PRACTICE. EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES
PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
EXODUS WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE UNINTERRUPTED,
ERROR-FREE OR SECURE SERVICES.
6.2 Damage to Customer Equipment or Materials.
(a) EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER
EQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. TO THE EXTENT EXODUS IS LIABLE FOR ANY DAMAGE TO, OR LOSS
OF, THE CUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY
TO THE FAIR MARKET VALUE OF THE CUSTOMER EQUIPMENT.
6.4 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT AND EXCEPT AS PROVIDED IN SECTION 7.1, EXODUS'S MAXIMUM AGGREGATE
LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE
LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER To EXODUS HEREUNDER FOR THE PRIOR
TWELVE (12) MONTH PERIOD.
6.5 Customer's Insurance. Customer agrees that it will not pursue any claims
against Exodus for any liability Exodus may have under this Agreement until
Customer first makes claims against Customer's insurance provider(s) and such
insurance provider(s) finally resolve(s) such claims, provided that Exodus
expressly agrees that any claims against Customer's insurance provider(s) will
toll the applicable statue of limitations with respect to any action arising
hereunder.
8.1 Term. This Agreement will be effective for a period of thirteen (13) months
and seven (7) days from the Installation Date, unless earlier terminated
according to the provisions of this Section 8. The Agreement will automatically
renew for additional terms of one (1) year each.
8.2 Termination.
(a) (ii) By Either Party. Either party may terminate this Agreement for
convenience at any time effective after the first (1st) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other party.
8.2 (b)For Cause. Either party will have the right to terminate this Agreement
if: (i) the other party breaches any term or condition of this Agreement and
fails to cure such breach within thirty (30) days after written notice of the
same, except in the case of failure to pay fees, which must be cured within
fifteen (15) days after receipt of written notice from Exodus.
<PAGE> 32
ATTACHMENT 6
NEGOTIATED CHANGES
Section 8.2 (d) is added as follows:
Change in Business Conditions. Customer may cancel this agreement with a
sixty (60) day written notice, if market conditions and business constraints are
such that Customer no longer requires the Data Center and Internet Services.
8.4 Effect of Termination.
(d) Customer will remove from the Internet Data Centers all Customer
Equipment, Customer Materials, and any of its other property within the Internet
Data Centers within fifteen (15) days of such expiration or termination and
return the Customer Area to Exodus in the same condition as it was on the
Installation Date, normal wear and tear excepted. If Customer does not remove
such property within such fifteen (15) period, Exodus will have the option to
(i) move any and all such property to secure storage and charge Customer for the
cost of such removal and storage, and/or (ii) liquidate the property in any
reasonable manner. Exodus will notify Customer of any action taken relative to
such property.
10.3 Force Majeure. Neither party will be liable for any failure or delay in its
performance under this Agreement due to any cause beyond its reasonable control,
including act of war, acts of God, earthquake, flood, embargo, riot, sabotage,
labor shortage or dispute, governmental act or failure of the Internet. If any
such event, loss, damage or delay shall occur, the disabled party shall use
commercially reasonable efforts to meet its obligations as set forth in this
Agreement, and shall promptly advise the other party in writing if it is unable
to perform and of any circumstances which might affect the ability of that party
to perform any of its obligations, in whole or in part.
10.6 Marketing. INTENTIONALLY DELETED.
10.8 Non-Solicitation. During the period beginning on the Installation Date and
ending on the first anniversary of the termination or expiration of this
Agreement in accordance with its terms, both parties and their affiliates agree
that they will not, directly or indirectly, solicit or attempt to solicit for
employment any persons employed by the other party during such period.