Internet Colocation Services Agreement - SoftAware Inc. and ValueClick Inc.
[LOGO] SOFTAWARE, INC.
4676 Admiralty Way Suite #217
Marina del Rey, California 90292
Tel: 310-305-0275
Fax: 310-305-9165
Web Site: www.softaware.com
SOFTAWARE SERVICE ORDER
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Customer Information
Sales Rep: Dennis Wojnar
ValueClick August 17, 1999
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Billing Name Requested Service Date
6450 Via Real
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P.O. Box 5008
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Carpinteria, CA 93014-5008
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Billing Address: City, State & Zip Code
Michael Bueno 805-684-6060
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Customer Contact Phone
Michael Bueno 805-684-6060
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Billing Contact Phone
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SERVICE INFORMATION (FILLED OUT BY ACCOUNT REP)
SERVICE TO BE PROVIDED:
Add'l shelves 4 shelves $750 each ($3,000) $0
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Service Type Quantity Monthly Rate Non-Recurring Charge
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| Note |
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THIS SERVICE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS OF YOUR SOFTAWARE
SERVICE AGREEMENT. CUSTOMER HAS READ AND UNDERSTANDS THE ORDER TERMS AND
AGREES TO BE BOUND BY THOSE CONDITIONS. ACCEPTANCE IS CONTINGENT UPON
SIGNATURE BY AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY.
SIGN AND RETURN TO SOFTAWARE BY FAX - 310-305-9165
Date: August 17, 1999 Date: August 17, 1999
Company Name: ValueClick Company Name: SoftAware, Inc.
Full Name & Title: John Schwenk, CTO Richard Gable, President - COO
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Signature /s/ JOHN SCHWENK Signature
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<PAGE>
VALUECLICK ("Client"), and SOFTAWARE, Inc. ("SoftAware"), agree to the following
terms and conditions regarding Internet Colocation Services ("Internet
Services"):
1. SOFTAWARE'S RESPONSIBILITIES
SoftAware will provide access to the Internet (at SoftAware's discretion as to
equipment and conditions), to the Client's computer located on SoftAware's
premises. SoftAware will house Client's computer in a secure computer room,
monitor data throughout and provide emergency support for Client at all times.
2. COSTS AND TERMS
Charges and additional terms for Internet Services are specified in the attached
Exhibit A, incorporated by reference.
3. WARRANTIES/LIMITATIONS OF LIABILITY
SOFTAWARE EXPLICITLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WHATSOEVER. Client acknowledges that SoftAware does not
warrant any privacy conditions and may provide access to any computer system on
its network if required by State of Federal law.
SoftAware is not liable for: (a) loss resulting from the use, installation, and
or discontinuation of the Internet Services, including but not limited to losses
resulting from delays, improper or incomplete delivery of information, computer
viruses, interruption of service or damage to equipment; (b) damages relating to
Client's failure to perform Client's responsibilities under this or any other
agreement; (c) lost profits or other consequential damages of Client or a third
party, even if SoftAware has been advised of the possibility of such damages;
(d) any claim against Client by a third party; (e) the monitoring or supervision
of content transmitted by Client or a third party, regardless of notice of
illegal or inaccurate matters; (f) the enforcement of its acceptable use policy,
or (g) performance of its obligations hereunder where delayed or hindered by
war, riots, embargoes, strikes or other concealed acts of workmen, casualties,
accidents, acts of nature (including floods and earthquakes), or other
occurrences beyond the SoftAware's control. SoftAware shall notify Client in the
event of any of the occurrences listed in (g), and should such occurrence
continue for more than sixty (60) days, SoftAware or Client may terminate this
agreement with no future obligations to be incurred.
If SoftAware provides hardware to Client, SoftAware makes no actual warranty of
its own, but will pass through to the Client the manufacturers warranty to the
extent that such warranty is provided. In the even that Client discovers a
product to be defective, SoftAware will assist the buyer in notifying the
manufacturer of such defect.
Periodically, SoftAware will conduct routine scheduled maintenance of its
network and facilities. During such time, Client's Equipment may be unable to
transmit and receive data and Client may be unable to access its Equipment.
Client agrees to cooperate with SoftAware during the scheduled maintenance so
that SoftAware may keep such period or time to a minimum.
4. PROHIBITED ACTIONS & ACCEPTABLE USE POLICY
Client is prohibited from engaging in: (a) Attempts to flood the network or
compromise the security or integrity of computers connected directly or
indirectly to the internet; (b) Attempts to increase traffic levels for a
malicious purpose or without a legitimate business purpose; (c) Any security
cracking or action which compromises SoftAware's system security or the security
of any computer system connected to said network in any way; (d) Harassment,
intimidation, or infringement of the privacy of any Internet users or user of
Internet access, including but not limited to electronic mail; (e) Operating a
domain name server without SoftAware approval. Client agrees to adhere by
SoftAware's Acceptable Use Policy as detailed in Exhibit B and incorporated by
reference.
5. INDEMNIFICATION
Client agrees to use the Internet Services in a manner permitted by applicable
local, state and federal laws. Client is prohibited from transmitting any
material in violation of local, state or federal law, including, but not limited
to, the use of copyrighted material without permission of the copyright holder,
material legally judged to be threatening or obscene, or material protected by
trade secret or trademark laws. Client agrees to indemnify and hold SoftAware
<PAGE>
harmless from any claims relating to direct or indirect damage to another party
by use of the Internet Services. Client further agrees to indemnify and hold
SoftAware harmless from all lawsuits, judgments, decrees, cost and expenses, and
any attorney fees relating to Client's use of the Internet Services or breach of
this or other contracts.
6. TERMINATION
SoftAware may discontinue any or all classes of service at its discretion for
any of the following reasons: protection of the integrity of its network; fraud;
willful misconduct; malfeasance; failure; neglect or refusal to perform duties
in any material respect; misfeasance or incompetence in any material respect;
violation of any law, rule or regulation (other than traffic violations or
similar minor infractions); material breach of any provision of this Agreement
(including, but not limited to, failure to keep Client's account current); or
any acts which would tend to threaten the financial integrity of SoftAware.
Before SoftAware discontinues service, SoftAware will use its best efforts to
notify the Client of any such problem, and attempt to resolve such problem.
7. GENERAL
(a) Client shall not assign or transfer any rights or obligations
under this Agreement without SoftAware's prior written
approval;
(b) Any legal action arising out of failure, malfunction or defect
of the Internet Services shall be brought within one year of
the occurrence, or is deemed waived;
(c) Breach of any contract provision by Client can only be waived
in writing;
(d) Waiver of any breach by Client shall not be deemed to be a
waiver of any other breach;
(e) This agreement constitutes the entire agreement between the
parties with respect to Internet Services, and can not be
modified without the express written consent of all parties;
(f) Neither Client nor SoftAware has made any promise,
representation, or warranty, explicit or implied, not set
forth in this contract;
(g) If any portion of this agreement is held by a Court of
competent jurisdiction or mutually agreed on authority, to be
invalid, void, or unenforceable, the remainder will
nevertheless continue in full force without impairment or
invalidation;
(h) This agreement shall be governed and interpreted by the laws
of California applicable to such contracts entirely made and
performed in said jurisdiction.
(i) Service Hours and Conditions: Client understands that
alterations to accounting status, service contract conditions
or removal of equipment must be processed during business
hours weekdays unless previously scheduled or approved.
SoftAware reserves the right the refuse service on those
matters during non-business hours, and to redirect customer
inquiries to staff available during the normal operating
schedule.
8. NONDISCLOSURES
Client shall not disclose to any third party, during the term of service, any of
the material terms and conditions set forth in this Agreement, unless such
disclosure is lawfully required by any government agency or is otherwise
required by law. Breach of this provision shall be cause for termination of
services, and shall subject Client to damages, including SoftAware's lost
profits, as a result of said breach.
9. COMPLIANCE WITH LAW/ RENEGOTIATION.
The parties intend to not violate any laws or governmental rules or regulations
or any ethical requirements. While both the parties believe that they have
accomplished this in structuring this agreement, both acknowledge that to the
extend that any portion of this agreement violates any laws, rules, regulations
or ethical requirements, both will promptly renegotiate any such provisions so
that it will be in full compliance with all laws, rules, regulations and ethical
requirements at all times. The parties agree to perform any further acts and
execute and deliver any documents that may be reasonably necessary to carry out
this Agreement.
<PAGE>
10. ARBITRATION
Any controversy or claim relating to this contract or breach thereof, unless
otherwise settled by agreement of the parties, will be settled by arbitration in
accordance with the Commercial Arbitration rules of the American Arbitration
Association, and judgment on the arbitrator's award may be entered in any Court
having jurisdiction thereof.
11. ATTORNEYS' FEES
Should any party hereto reasonably retain counsel for the purpose of enforcing
or preventing the breach of this Agreement, including, but not limited to,
instituting any arbitration or any action at law or in equity, including an
action for declaratory relief or for any other judicial remedy, then if said
matter is settled by judicial determination (which term includes arbitration),
the prevailing party (whether at trial or appeal), shall be entitled, in
addition to such other relief as may be granted, to be reimbursed by the losing
party for all costs and expenses incurred thereby, including, but not limited to
reasonable attorney's fees and costs for the services rendered to such
prevailing party.
If this Agreement is acceptable to Client, indicate said acceptance in the
appropriate space provided below.
Once signed by Client and SoftAware this Agreement will be binding upon
all parties hereto. These signatures apply to the above conditions, as well as
attachments and exhibits incorporated by reference, constituting the entire
agreement between the parties. By signing below, I affirm that I am a
responsible corporate office, acting within the scope of my authority, to bind
the corporation.
Corporate Office:
Date: 10/9/98
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<S> <C>
Company Name: Value Click Company Name: SoftAware, Inc.
Full name and Title (Print): Brian Coryat, President
Signature: /s/ BRIAN CORYAT Signature: /s/ RICHARD GABLE
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Richard Gable, Chief Operations
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<PAGE>
EXHIBIT A - PAYMENT TERMS
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<CAPTION>
SOFTAWARE COLOCATION
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Installation $ 0
Monthly fee Internet Services (100mb/s ethernet) $10,000
Monthly fee full standing rack $ 3,000
Monthly fee for each add'l shelf $ 750
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The initial term of this agreement will be one year and will commence on October
5th, 1998 (commencement date). Unless terminated as provided by this Agreement,
the agreement shall thereafter automatically renew for successive one year
terms. Either party may terminate this agreement at the end of the initial term
by giving the other party thirty (30) days prior written notice. SoftAware
reserves the right, at its discretion, to increase prices and alter terms at the
end of the initial contract term.
Client agrees to compensate SoftAware for providing the services expressed in
this agreement in the amount of $13,000 per month. Client will receive up to ten
megabits per second for the $13,000 Internet Service fee. Client agrees to pay
an additional $950 per megabit per second if bandwidth usage exceeds the first
ten (10) megabits per second. Bandwidth usage will be measured by taking an
average of the usage for the month. SoftAware may delay billing on bandwidth
changes until all data relevant to said charges is collected and analyzed.
Monthly payments for each month will be due by the fifteenth day of the
preceding month.
Interest at a rate equal to the greater of one and three quarter percent (1.75%)
per month or the highest rate permissible under applicable law, accrued daily,
will be due on all amounts not paid by the sixteenth of the month. Client will
pay or reimburse SoftAware for any and all sales and use taxes, duties, or
levies imposed by any authority, government or government agency in connection
with the Internet Services, except property taxes and SoftAware's income taxes.
Should termination occur due to: (a ) client's non-payment of sums due under
this Agreement, or (b) Client's termination of SoftAware's service; then the
remainder of the amount due for the term of the contract shall be accelerated
and due on the date of termination, in addition to any other remedies which may
be applicable.
Client agrees that any equipment, facilities modification, or Client provided
infrastructure or services that remain in the service area or impound area for
more than sixty (60) days beyond termination, regardless of reason or ownership
of said items, shall be deemed to be abandoned and SoftAware shall have the
right to remove and or dispose of said equipment, modifications or
infrastructure or services at its sole discretion.
Client is hereby on notice the passing of a check on insufficient funds shall
subject Client to (1) the amount of the check, and (2) treble damages not less
than $100, and (3) a service charge payable to SoftAware for an amount not to
exceed twenty-five dollars for the first check, and thirty-five dollars for the
second check. After the second dishonored check, payment for services will take
the form of cashier's check, money order, or some other secured form of payment
deemed acceptable by SoftAware.
As additional security for the enforcement of this Agreement: Client grants
SoftAware a lien upon any material used or stored at SoftAware's facility.
Client warrants that may equipment stored under this Agreement is lawfully owned
by Client. If said equipment is not owned by Client, Client shall specify such
in writing to SoftAware, providing the name, address, and telephone number of
the legal owner, as well as any identification or invoice numbers necessary to
establish the correct identify of the products. Client shall also inform the
legal owner of the existence to this lien.
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<S> <C>
Approved By:
Date: 10/9/98 Date:___________________
Company Name: Value Click Company Name: SoftAware, Inc.
Full Name & Title (Print): Brian Coryat, President Signature: /s/ RICHARD GABLE
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Signature: /s/ BRIAN CORYAT Richard Gable, Chief Operations
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</TABLE>
<PAGE>
ACCEPTABLE USE POLICY
EXHIBIT B
The purpose of the Acceptable Use Policy (AUP) is to provide clear expectations
for SoftAware customers and their authorized users. This policy complements your
SoftAware Service Agreement.
TERMS OF SERVICE AND OPERATING RULES: This policy applies to all customer,
Clients, employees, agents of SoftAware, and all authorized third parties that
are granted access to the services SoftAware provides.
CONDITIONS OF USE: By using any service SoftAware provides, you agree to observe
all of the provisions of these Terms of Service and Operating Rules as they may
be in effect from time to time. No acceptance of any purchase order from you
shall constitute acceptance by and control all dealing between SoftAware and
you. SoftAware reserves the right to make changes to this policy without prior
notification to users.
COMPLIANCE: All service users are required to comply with this Policy. You are
accountable for all violations of the SoftAware Acceptable Use Policy by any
third party using your network including your customers and they authorized
users.
INTERNET ETIQUETTE: You are expected to be familiar with end to practice good
Internet etiquette (Netiquette). You will comply with the rules appropriate
to any network to which SoftAware may provide access.
You will not post, transmit, or permit Internet access to information you desire
to keep confidential. You will not post or transmit any information or software
that contains a virus, illicit code or other harmful components. You will not
post any material that is illegal, libelous, torturous, or likely to result in
retaliation against SoftAware by offended users. SoftAware reserves the right to
refuse to terminate service at any time.
You will indemnify and hold SoftAware harmless from any damages to SoftAware's
business, service, equipment, network, operations, or reputation resulting from
your actions including without limitation any government actions, acts of
vandalism or other retaliation, and any claims of libel, unfair competition,
infringement of any patents, copyright, trademark, service mark, or other
intellectual property right, violation of privacy, or other tort.
APAM/UCE: SPAM/UCE mailing of any sort will not be permitted. Customer will be
held accountable for all actions including any SPAM/UCE originating from their
network, network device or any APAM/UCE mailing that causes SoftAware to respond
regardless of point or origin.
Upon Notification that such an act has occurred, SoftAware will warn the
customer on the first offence, and may in turn pass along any expenses the
customers have incurred. On the second, offense, SoftAware may give notice of
termination of service. Upon the receipt of notification by SoftAware that a
violation of the AUP has occurred, customers must provide written confirmation
of all compliance and enforcement actions they have taken within 48 hours.
PASSWORD PROTECTION: Users are responsible for protecting their password and for
any authorized or unauthorized use made of your password. You will not use or
permit anyone to use SoftAware's service to guess passwords or access other
systems or networks without authorization. In the event a network or network
device becomes compromised. SoftAware will assist in the tracking and/or
expulsion of said offender on the network level to an extent they find
reasonable. SoftAware is not responsible for securing a customer network or
device beyond the equipment SoftAware Installs.
ILLEGAL ACTIVITY: Use of SoftAware service for illegal or improper activity of
any kind, including unauthorized usage as previously described. Forged header or
user identification information and/or software piracy is prohibited. SoftAware
will fully cooperate with law enforcement authorities in the detection and
prosecution of illegal activity.
REMEDIES: All violations of this Acceptable Use Policy will be reviewed for the
appropriate action that can include immediate termination of access services.
Upon notification of any violation of the Acceptable Use Policy,
<PAGE>
users must provide a written response within 48 hours of all compliance
actions and/or enforcement actions with third parties they have undertaken.
Failure to provide such information may result in termination of service.
CONTACTS: Notifications of any violation of the SoftAware acceptable Use
Policy should be sent to abuse@SoftAware.com
<PAGE>
[LOGO]
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PROPOSED SOLUTION
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Internet | Verio
Co-Location Requirements | Monthly Recurring Fee
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0 - 20 Mbps | $750/Mbps
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21 - 30 Mbps | $700/Mbps
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31 - 40 Mbps | $650/Mbps
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Standard 19" rack in cage or cabinets | $250/rack
Boca Raton facility, Mountain View, or| ---------
Los Angeles
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Samples of outbound and inbound traffic are taken on 5 minute intervals over
a 24 hour period. These samples are compiled for the month, and the customer
is billed on the 95th percentile of the highest group of samples (inbound or
outbound). Pricing is based on a one-year contract.
ON-SITE CO-LOCATION FACILITY:
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- IP Addresses
- Secure Card Key Facility Access 24 x 7
- Private Cage or Cabinet
- Primary DNS
- Back-up diesel generators
- Back-up Air Conditioning Units
- 24 x 7 Network Operations Center Monitoring and Support and Maintenance
- System reboots
- On-site support - menu of services to follow
Agreed
/s/ JOHN SCHWENK Date 6-8-99
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John Schwenk
Title CTO
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