Service Agreement - Verio Inc. and Avenue A Inc.
Service Agreement -- Internet Services
Customer Name: Avenue A Media
Billing Address: 1100 Olive Way, Suite 1270
Seattle, WA 98101
Contact: Jack Valko
Telephone: 206-521-8800 288
Fax: 206-521-8808
Email: jackv@avenuea.com
Service(s):
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Product/Service Description Recurring Fees One-Time Fees
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Rack Space Full Cabinet Westin Bldg $1000.00 $1000.00
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Term Commitment (Check one) One Year [_] Two Years [_] Other [X] Specify:
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Month to Month
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Comments or Special Instructions (Please reference and include attachments as
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necessary):
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CABINET INSTALL BY EOB 3/4/1999.
Per Dave Toll, there is an additional
rack space being leased in '99.
4 in total (4 X 1,000 = 4,000).
tf 10/99
Terms and Conditions:
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1) This Agreement applies to the purchase of all services (collectively, the
"Services") ordered by Customer under this Service Agreement
("Agreement").
2) Customer shall pay the fees and other charges for each Service as
provided in this Agreement. Billing for Services will commence when a
VERIO hub and a telephone circuit/line are prepared to route IP packets
to Customer's location. Service charges shall be invoiced monthly, unless
otherwise agreed, and payment shall be due on the date specified in the
invoice ("Due Date"). Set-Up charges shall be invoiced upon installation
of Services by VERIO. Charges for equipment shall be invoiced upon
shipment. Unless otherwise specified, equipment prices do not include
shipping and handling. Customer will pay a late payment charge equal to
1.5% (or the highest amount permitted by law, whichever is lower) per
month or portion thereof on the outstanding balance of any invoice
remaining unpaid thirty (30) days after the Due Date. Accounts unpaid
thirty (30) days after the Due Date may have service suspended or
terminated. Such suspension or termination shall not relieve Customer of
its obligation to pay the monthly fee. Customer agrees to
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pay VERIO its reasonable expenses, including attorney's fees and
collection agency fees, incurred in enforcing its rights under this
Agreement. Customer shall pay all federal, state, and local sales, use,
value added, excise, duty and any other taxes assessed with respect to
the Services and the sale of equipment to Customer, except that taxes
based on VERIO's net income shall be the responsibility of VERIO. In
addition, Customer may also be required to pay telco installation and
recurring fees, domain name registration fees, and other equipment costs.
3) This Agreement will be automatically renewed on a month to month basis at
the end of the Term Commitment. In the event of early cancellation of a
Term Commitment, Customer will be required to pay 75% of VERIO's standard
monthly charge for each month remaining in the Term Commitment.
Termination at, or after, the end of the Term Commitment requires thirty
(30) days advanced written notice. VERIO reserves the right to change the
rates it charges for Services at the end of the Term Commitment. VERIO
will provide sixty (60) days notice of any such change.
4) Customer shall at all times adhere to the VERIO Acceptable Use Policy
located at http://www.verio.net/isite/policy.html, as amended from time
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to time by VERIO effective upon posting of the revised policy at the URL.
Notwithstanding anything to the contrary contained herein, VERIO may
immediately take corrective action, including disconnection or
discontinuance of any and all Services, or terminate this Agreement in
the event of notice of possible violation by Customer of the VERIO
Acceptable Use Policy.
5) VERIO exercises no control over, and accepts no responsibility for, the
content of the information passing through VERIO's host computers,
network hubs and points of presence (the "VERIO Network"). VERIO MAKES NO
WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT VERIO
PROVIDES. NEITHER VERIO, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY
INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE
SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE
SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION
SERVICED OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES.
VERIO IS NOT LIABLE FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR
FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF ITS CUSTOMERS VIA THE
SERVICE(S) PROVIDED BY VERIO.
6) VERIO is acting only as a reseller of the hardware and software offered
under this Agreement, which was manufactured by a third party
("Manufacturer"). VERIO shall not be responsible for any changes in
Service(s) that cause hardware or software to become obsolete, require
modification or alteration, or otherwise affect the performance of the
Services. Any malfunction or manufacturer's defects of equipment either
sold or provided by VERIO to Customer or purchased directly by Customer
in connection with the Service(s) will not be deemed a breach of VERIO's
obligations under this Agreement. Customer shall use its best efforts to
protect and keep confidential all intellectual property provided by VERIO
to Customer through any hardware or software and shall make no attempt to
copy, alter, reverse-engineer, or tamper with such intellectual property
or to use it other than in connection with the Services.
7) Any interruption in any Service(s) that is caused by the malfunction or
interruption of any telecommunications services or facility (including,
but not limited to, cables and fiber optic lines) ordered by VERIO on
behalf of Customer or purchased directly by Customer in connection with
the Service(s) will not be deemed a breach of VERIO's obligations under
this Agreement.
8) Customer will indemnify, save harmless, and defend VERIO and all
employees, officers, directors and agents of VERIO (collectively
"indemnified parties") from and against any and all claims, damages,
losses, liabilities, suits, actions, demands, proceedings (whether legal
or administrative) and expenses (including but not limited to reasonable
attorneys' fees) threatened, asserted, or filed by a third party against
any of the indemnified parties arising out of or relating to use of the
Services, including any violation of the VERIO Acceptable Use Policy.
9) IN NO EVENT SHALL VERIO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY
CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR
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STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF VERIO HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. In no event will VERIO's liability for
any damages, losses and causes of actions whether in contract or tort
(including negligence or otherwise) exceed the actual dollar amount paid
by Customer for the Service which gave rise to such damages, losses and
causes of actions during the 12-month period prior to the date the damage
or loss occurred or the cause of action arose. VERIO shall not be liable
for failure or delay in performing its obligations hereunder if such
failure or delay is due to circumstances beyond its reasonable control,
including, without limitation, acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood, strike or other labor
disturbance, interruption of or delay in transportation, interruption or
delay in telecommunications services or inability to obtain raw
materials, supplies, or power used in or equipment needed for provision
of the Services.
10) The validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the law
of the State of Colorado. This Agreement may not be amended except upon
the written consent of the parties; provided that the VERIO Acceptable
Use Policy may be amended from time to time by VERIO. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, or
power provided herein or by law or in equity. The waiver by any party of
the time for performance of any act or condition hereunder shall not
constitute a waiver of the act or condition itself. This Agreement shall
be binding upon and inure to the benefit of the parties and their
respective successors, and assigns. Customer may not assign this
Agreement without the prior written consent of VERIO. If any provision of
this Agreement shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this Agreement shall
remain in full force and effect.
This Agreement supersedes all previous representations, understandings or
agreements and shall prevail notwithstanding any variance with the terms
and conditions of any order submitted. Acceptance of this Agreement by
VERIO may be subject, in VERIO's absolute discretion, to satisfactory
completion of a credit check. Activation of service shall indicate
VERIO's acceptance of this Agreement. Use of the VERIO Network
constitutes acceptance of this Agreement.
_______________________________________________ _________________________________________
Signature (Authorized Customer Representative) Signature
_______________________________________________ _________________________________________
Name & Title (please print) VERIO Northwest Sales Representative
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Tax ID Number
_______________________________________________ _____________________________________
Date Date
If applicable, check as appropriate and enter company name of
VERIO ASP [ ]/Referral Partner [ ]
Partner Name: N/A VERIO Partner #: N/A
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