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Sample Business ContractsHome: Sample Business Contracts: CONFIDENTIAL TREATMENT LICENSE AGREEMENT between HARRISON 160, LLC, as Licensor, and Red Envelope, Inc. as Licensee dated as of May 31, 2005 [365 Main Street, San Francisco, California 94105] PROPRIETARY AND CONFIDENTIAL
CONFIDENTIAL TREATMENT TABLE OF CONTENTS
-i- PROPRIETARY AND CONFIDENTIAL
5/31/2005
1 Parties
Licensee: Red Envelope San Francisco CA 94105 Licensee Contact: [365 Main Logo] 2 License Term
1 CONFIDENTIAL TREATMENT 9 Commitment Levels
2 CONFIDENTIAL TREATMENT Response Table (Schedule 1)
These Basic License Terms shall be binding upon Licensor and Licensee for incurred installation costs. The monthly recurring shall not be binding until such time as the parties have agreed to and executed a License Agreement into which this summary of Basic License Terms shall be incorporated.
3 CONFIDENTIAL TREATMENT License Terms and Conditions These License Terms and Conditions together with any schedules and exhibits attached hereto and the immediately preceding summary of Basic License Terms (the “Basic License Terms”) when taken together comprise the “License Agreement” or “Agreement” between 160 Harrison, LLC, a California limited liability company (“Licensor”), and the licensee identified in the Basic License Terms (the “Licensee”).
Licensor hereby grants Licensee the right during the Term of this Agreement to install, maintain and operate computer and/or telecommunications equipment (the “Equipment”) within the space designated on Exhibit A attached hereto (the “License Area”) within the building commonly known as 365 Main Street, San Francisco, California 94105 (the “Building”). Licensor shall not be obligated to provide any telecommunications services or managed services to Licensee under this Agreement. In addition, Licensor shall have no obligation to make any alterations, install any equipment or otherwise prepare the License Area for use by Licensee other than the work specifically set forth on Exhibit A as work to be completed by Licensor in the License Area prior to the commencement of the Term (the “Licensor Work”). Licensee acknowledges and agrees that any services to be provided by Licensor hereunder in connection with the Equipment or the License Area may be performed by an independent contractor or contractors on behalf of Licensor.
The term of this Agreement shall be the “Base Term” shown in the Basic License Terms (the “Term”), unless this Agreement is sooner terminated in accordance with Section 13.1 below
The Policies and Procedures of the Building in effect as of the date hereof are attached hereto as Exhibit B (the “Policies and Procedures”). Licensor reserves the right, from time to time, to adopt additional Policies and Procedures and to amend the Policies and Procedures then in effect, which additions and amendments shall become effective as to Licensee upon notification by Licensor provided such additions or amendments do no materially diminish Licensee’s rights under this Agreement. Licensor shall not be liable to Licensee for violation of the Policies and Procedures by any other lessee or licensee, its employees, agents, visitors or licensees. If there shall be any inconsistencies between this Agreement and the Policies and Procedures, the provisions of this Agreement shall prevail.
4.1 Use. (a) Licensee shall use and occupy the License Area only for the operation of the Equipment, and for no other purpose. Licensee shall not use or keep in the License Area any substance defined as a “hazardous material” by any Governmental Authority (as defined below) (collectively, “Hazardous Materials”). Licensee’s violation of this Section 4.1(a) will be grounds for termination of this Agreement by Licensor in Licensor’s sole and absolute discretion. (b) Licensee shall not place a load upon any area of the License Area, which load either exceeds the floor load per square foot that such area is designed to carry or violates Legal Requirements. Pursuant to Building specifications, the designated loads per square foot are: (i) two thousand (2000) pounds with respect to any raised floor, and (ii) two hundred fifty (250) pounds with respect to areas other than a raised floor. (c) Licensee’s Indemnification. Licensee agrees to indemnify, defend and hold harmless Licensor, its successors and assigns, and its and their directors, officers, shareholders, members, managers, employees, agents, and partners from all costs, expenses, damages, liabilities, claims, fines, penalties, interest, judgments, and losses of any kind, including, without limitation, reasonable attorneys’ fees and costs, arising from or in any way related to Licensee’s or Licensee’s officers’, employees’, contractors’, representatives’, affiliates’, assignees’, sublicensees’, agents’ or invitee’s (collectively, “Licensee’s Representatives”) handling of Hazardous Materials during the Term or violation of any of the provisions of this Agreement pertaining to Hazardous Materials (collectively, “Environmental Losses”), including, without limitation, consequential damages, damages for personal or bodily injury, property damage, encumbrances, liens, costs and expenses of investigations, monitoring, clean up, removal or remediation of Hazardous Materials, defense costs of any claims, good faith settlements, attorneys’ and consultants’ fees and costs, and losses attributable to the diminution of value, whether or not such Environmental Losses are contingent or otherwise, matured or unmatured, foreseeable or unforeseeable.
(a) Definitions. “Legal Requirements” means all present and future laws, rules, orders, ordinances, regulations, statutes, requirements, codes, executive orders, rules of common law, and any judicial interpretations thereof, of all Governmental Authorities, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. ¤ 9601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. ¤ 9601 et seq., and any law of like import, any statute, rule or regulation designating any substance as a hazardous material or substance, and all rules, regulations and government orders with respect thereto affecting Licensee’s use of the License Area, the Building or the maintenance, use or occupation thereof. “Governmental Authority” means any of the United States of America, the State of California, the City and County of San Francisco, any political subdivision thereof and any agency, department, commission, board, bureau or instrumentality of any of the foregoing, now existing or hereafter created, having jurisdiction over the Building or any portion thereof or the vaults, curbs, sidewalks, streets and areas adjacent thereto. (b) Compliance with Legal Requirements. Licensee, at its sole expense, shall comply with all Legal Requirements applicable to the License Area or the use and occupancy thereof by Licensee. Licensee shall not do or permit to be done any act or thing upon the License Area which will invalidate or be in conflict with Licensor’s insurance policies. If, as a result of Licensee’s acts or omissions, the insurance rates for the Building shall be increased, then Licensee shall reimburse Licensor for the amount of any such increase upon demand by Licensor. (c) City and County of San Francisco. Licensee shall have the sole responsibility to secure any and all governmental approvals relating to Licensee’s use of the License Area other than permits required in connection with any Licensor Work. Licensee shall secure such approvals prior to execution of this Agreement and hold Licensor harmless from any costs and fees incurred in the process of obtaining such approvals, and from any fines or penalties imposed by a Governmental Authority arising from Licensee’s nonconformance with Legal Requirements (other than building permits required in connection with any Licensor Work). 4.3 Access and Inspection. Licensor and Licensor’s lender and consultants, and each of their respective officers, agents, employees, members or managers, shall have the right, but not the obligation, to enter into the License Area at any time in the case of an emergency, and otherwise at reasonable times upon at least twenty-four (24) hours’ notice to inspect the License Area or to make such alterations, repairs, improvements or additions to the License Area as Licensor may deem necessary. In addition, Licensor or Licensor’s agents may have access to the License Area at any time for the purpose of providing Remote Hands services or other services requested by Licensee. All such activities shall be without abatement of License Fees or liability to Licensee. PROPRIETARY AND CONFIDENTIAL -1- CONFIDENTIAL TREATMENT
5.1 The term “Alterations” shall mean any modification of the License Area from and after the commencement of the Term, whether by addition or deletion and shall exclude any Licensor Work. 5.2 Licensee shall not make any Alterations to the License Area without Licensor’s prior written consent, which may be given or withheld in Licensor’s sole and absolute discretion; provided, however, that Licensor shall not unreasonably withhold its consent to the installation in the License Area by Licensee of customary cabling and trade fixtures. 5.3 Liens. Licensee shall keep the License Area free from any liens and shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use on or in the License Area.
Provided no Event of Default has occurred and is continuing, Licensor shall provide or cause an independent contractor to provide on behalf of Licensor, at Licensor’s expense, except as otherwise set forth herein, the following, in accordance with the commitment levels described in the Basic License Terms (the “Commitment Levels”), as applicable: 6.1 Electricity. Licensor, subject to the provisions of this Section 6.1, shall use commercially reasonable efforts to make available to Licensee, AC electric capacity at a level not less than the level described in the Basic License Terms (the “Basic Capacity”). Licensee shall pay for electricity service based upon usage on a monitored basis, as further described below and in the Basic License Terms. Licensee shall be solely responsible, at Licensee’s sole cost and expense, for the installation of all power circuits and rack grounding to the base Building grounding grid system required in order to deliver the Basic Capacity to the License Area and to distribute it therein. Upon Licensor’s approval of Licensee’s request for the installation of electrical services to the Licensee Area, Licensor’s designated electrical contractor shall perform the tap-in to the Building’s electrical system located at the remote power panel. In the event that Licensee shall require electrical capacity in excess of the Basic Capacity, then upon request, and subject to the availability of additional electrical capacity in the Building, as determined by Licensor in its reasonable discretion, Licensor shall make additional electric power available to Licensee. Licensee shall pay to Licensor a one-time charge equal to Licensor’s designated electrical contractor’s expense to install such electrical facilities and equipment necessary to enable Licensee to obtain such additional electrical capacity. Licensee shall pay Licensor, as additional License Fees, on a monthly basis, for its consumption of electrical energy at the License Area, which consumption shall be deemed to include both the electrical energy consumed by each circuit in the License Area as well as the electrical energy required to cool the heat generated thereby (the “License Area Consumption”), as more particularly provided herein. “Licensor’s Electricity Cost” means the cost per kilowatt hour and cost per kilowatt demand, adjusted by applicable rate adjustments, to Licensor for the purchase of electricity from the public utility or other electricity provider furnishing electricity service to the Building from time to time (the “Electricity Provider”), including sales and other taxes or other impositions imposed by any Governmental Authority on Licensor’s purchase of electricity. If at any time during the term the cost elements comprising Licensor’s Electricity Cost shall be increased by the Electricity Provider, or Licensor’s Electricity Cost shall be increased for any other reason, then effective as of the date of such increase, Licensee’s payment for submetered electricity under this Section 6.1 shall be proportionately increased. Licensor reserves the right to contract with different Electricity Providers from time to time in its sole discretion, and without reference to whether any Electricity Provider selected by Licensor provides lower rates than any other electricity supplier. Licensee covenants that Licensee’s License Area Consumption shall not at any time exceed the capacity of any of the electrical facilities and installations in or otherwise serving or being used in the License Area and Licensee shall, upon the submission by Licensor to Licensee of written notice, promptly cease the use of any of Licensee’s electrical equipment which Licensor believes will cause Licensee to exceed such capacity. If, within twenty-four (24) hours of receiving such a notice from Licensor, Licensee shall fail to reduce its License Area Consumption to a level that complies with the terms of this Section 6.1, Licensor shall have the right to disconnect power to the applicable circuit. Any additional feeders, risers, electrical facilities and other such installations required for electric service to the License Area will require approval by Licensor and an amendment to this Agreement executed by both parties hereto. Licensee shall be billed for electricity based upon usage as monitored by Licensor using readings of one or more circuit monitors to be installed by Licensor, applied to Licensor’s Electricity Cost. The cost for installation of such circuit monitors shall be borne by Licensor if the License Area comprises an entire colocation area; otherwise, Licensee shall bear such cost as set forth in the Basic License Terms. Licensee shall pay on a monthly basis Licensor’s Electricity Cost for Licensee’s License Area Consumption for circuit power and cooling, as determined hereunder as measured and calculated by such circuit monitor or monitors including an increase by a factor not to exceed two (2), applied to the monitored totals to account for cooling electricity usage. In addition, Licensee shall pay to Licensor, as additional License Fees (i) the fees and expenses of Licensor’s electrical contractor for services rendered based upon readings of such contractor in the maintenance and repair of such circuit monitor(s), and (ii) the amount of any taxes or other impositions imposed by any Governmental Authority related to the electricity used or consumed by Licensee in connection with the License Area, including Licensee’s costs of cooling. 6.2 Environmental Controls. Licensor shall use commercially reasonable efforts to provide heating, ventilation and air conditioning (“HVAC”) to the License Area twenty-four (24) hours a day, seven (7) days a week, three hundred sixty-five (365) days a year, through use of the Building standard HVAC system. 6.3 Security. (a) Building Security. Licensor, or an independent contractor on behalf of Licensor, shall provide security services with respect to access to the Building twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Licensee acknowledges and agrees that neither Licensor’s agreement to provide such security services nor Licensor’s actual provision of the same pursuant to this Agreement shall directly or indirectly create any liability (and Licensee hereby waives any claim based on any such liability) on the part of Licensor to Licensee, any persons visiting the Building, or any other person or entity with respect to any loss by theft, injury or loss of life, or any other damage suffered or incurred in connection with any entry into the Building or any other breach of security with respect to the Building unless such claim results from Licensor’s failure to use commercially reasonable efforts to comply with its obligations under this Section 6.3. (b) License Area Security. 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