Internet Data Center Services Agreement - Exodus Communications Inc. and 911 Gifts Inc.
EXODUS COMMUNICATIONS, INC.
INTERNET DATA CENTER SERVICES AGREEMENT
THIS INTERNET DATA CENTER SERVICES AGREEMENT (this "Agreement") is made
effective as of the Submission Date (October 23, 1998) indicated in the initial
Internet Data Center Services Order Form accepted by Exodus, by and between
Exodus Communications, Inc. ("Exodus") and the customer identified below
("Customer").
PARTIES:
CUSTOMER NAME: 911 Gifts, Inc.
ADDRESS: 832 Sansome Street
San Francisco, CA 94111
PHONE: 415-732-7520
FAX: 415-732-7196
EXODUS COMMUNICATIONS, INC.
2831 Mission College Blvd
Santa Clara, CA 95054
Phone: (408) 346-2200
Fax: (408) 346-2420
1. 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 services described in the
Internet Data Center Services Order Form(s) ("IDC Services Order Form(s)")
accepted by Exodus, or substantially similar services if such substantially
similar services would provide Customer with substantially similar benefits
("Internet Data Center Services"). All IDC Services Order Forms accepted by
Exodus are incorporated herein by this reference, each as of the Submission Date
indicated in such form.
2. FEES AND BILLING.
2.1 Fees. Customer will pay all fees due according to the IDC Services
Order Form(s).
2.2 Billing Commencement. Billing for Internet Data Center Services, other
than Setup Services indicated in the initial IDC Services Order Form shall
commence on the earlier to occur of (i) the "Installation Date" indicated in the
initial IDC Services Order Form, regardless of whether Customer has commenced
use of the Internet Data Center Services, unless 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, then billing will not begin until
the date Exodus has remedied such fault and (ii) the date the "Customer
Equipment" (Customer's computer hardware and other tangible equipment, as
identified in the Customer Equipment List which is incorporated herein by this
reference) is placed by Customer in the "Customer Area" (the portion(s) of the
Internet Data Centers, as defined in Section 3.1 below, made available to
Customer hereunder for the placement of Customer Equipment) and is operational.
All Setup Fees will be billed upon receipt of a Customer signed IDC Services
Order Form. In the event that Customer orders 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 or as
otherwise agreed to by Customer and Exodus.
2.3 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. 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 full
payment before the provision of Internet Data Center Services or other
assurances to secure Customer's payment obligations hereunder.
2.4 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.
3. CUSTOMER'S OBLIGATIONS
3.1 Compliance with Law and Rules and Regulations. Customer agrees that
Customer will comply at all times with all applicable laws and regulations and
Exodus' general rules and regulations relating to its provision of Internet Data
Center Services, as updated by Exodus from time to time ("Rules and
Regulations"). Customer acknowledges that Exodus exercises no control whatsoever
over the content of the information passing through its sites containing the
Customer Area and equipment and facilities used by Exodus to provide Internet
Data Center Services ("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.
3.2 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 and except as
otherwise expressly provided herein) it incurs in connection with this
Agreement.
3.3 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 the 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 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 in the Customer Registration Form,
as amended from time to time, which is hereby incorporated by this reference
("Representatives").
3.4 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.
3.5 Insurance.
(a) Minimum Levels. Customer will keep in full force and effect during the
term of this Agreement: (i) comprehensive general liability insurance in an
amount not less than $1 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 an amount
not less than that required by applicable law. Customer also agrees that it
will, and will be solely responsible for ensuring that its agents (including
contractors and subcontractors) 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.
4. CONFIDENTIAL INFORMATION.
4.1 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.
4.2 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.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Warranties by Customer.
(a) Customer Equipment. 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. 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
Manufacturer's environmental and other specifications.
(b) Customer's Business. Customer represents and warrants that Customer's
services, products, materials, data, information and Customer Equipment used by
Customer in connection with this Agreement as well as Customer's and its
permitted customers' and users' use of the Internet Data Center Services
(collectively, "Customer's Business") does not as of the Installation Date, and
will not during the term of this Agreement operate in any manner that would
violate any applicable law or regulations.
(c) 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.
(d) Breach of Warranties. In the event of any breach, or reasonably
anticipated breach, of any of the foregoing warranties, in addition to any other
remedies available at law or in equity, Exodus will have the right immediately,
in Exodus' sole discretion, to suspend any related Internet Data Center Services
if deemed reasonably necessary by Exodus to prevent any harm to Exodus and its
business.
5.2 Warranties and Disclaimers by Exodus.
5.2(a) Service Level Warranty. In the event Customer experiences any
of the following 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 (including Customer Equipment and
third party equipment), Exodus will, upon
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Customer's request in accordance with paragraph (iii) below, credit Customer's
account as described below:
(i) Inability to Access the Internet (Downtime). If Customer is unable
to transmit and receive information from Exodus' Internet Data Centers (i.e.,
Exodus' LAN and WAN) to other portions of the Internet because Exodus failed to
provide the Internet Data Center Services for more than fifteen (15) consecutive
minutes, Exodus will credit Customer's account the pro-rata connectivity charges
(i.e., all bandwidth related charges) for one (1) day of service, up to an
aggregate maximum credit of connectivity charges for seven (7) days of service
in any one calendar (1) month. 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. For purposes of the foregoing, "unable to transmit and
receive" shall mean sustained packet loss in excess of 50% based on Exodus'
measurements.
(ii) Packet Loss and Latency. Exodus does not proactively monitor the
packet loss or transmission latency of specific customers. Exodus does, however,
proactively monitor the aggregate packet loss and transmission latency within
its LAN and WAN. In the event that Exodus discovers (either from its own efforts
or after being notified by Customer) that Customer is experiencing packet loss
in excess of one percent (1%) ("Excess Packet Loss") or transmission latency in
excess of 120 milliseconds round trip time (based on Exodus' measurements)
between any two Internet Data Centers within Exodus' U.S. network (collectively,
"Excess Latency", and with Excess Packet Loss "Excess Packet Loss Latency"), and
Customer notifies Exodus (or confirms that Exodus has notified Customer), Exodus
will take all actions necessary to determine the source of the Excess Packet
Loss/Latency.
(A) Time to Discover Source of Excess Packet Loss Latency;
Notification of Customer. Within two (2) hours of discovering the existence of
Excess Packet Loss/Latency, Exodus will determine whether the source of the
Excess Packet Loss/Latency is limited to the Customer Equipment and the Exodus
equipment connecting the Customer Equipment to Exodus' LAN ("Customer Specific
Packet Loss: Latency"): If the Excess Packet Loss/Latency is not a Customer
Specific Packet Loss/Latency, Exodus will determine the source of the Excess
Packet Loss/Latency within two (2) hours after determining that it is not a
Customer Specific Packet Loss/Latency. In any event, Exodus will notify Customer
of the source of the Excess Packet Loss/Latency within sixty (60) minutes after
identifying the source.
(B) Remedy of Excess Packet Loss Latency. If the Excess Packet
Loss/Latency remedy is within the sole control of Exodus, Exodus will remedy the
Excess Packet Loss/Latency within two (2) hours of determining the source of the
Excess Packet Loss/Latency. If the Excess Packet Loss/Latency is caused from
outside of the Exodus LAN or WAN, Exodus will notify Customer and will use
commercially reasonable efforts to notify the party(ies) responsible for the
source and cooperate with it (them) to resolve the problem as soon as possible.
(C) Failure to Determine Source and or Resolve Problem. In the
event that Exodus is unable to determine the source of and remedy the Excess
Packet Loss/Latency within the time periods described above (where Exodus was
solely in control of the source), Exodus will credit Customer's account the
pro-rata connectivity charges for one (1) day of service for every two (2) hours
after the time periods described above that it takes Exodus to resolve the
problem, up to an aggregate maximum credit of connectivity charges for seven (7)
days of service in any one (1) month.
(iii) Customer Must Request Credit: To receive any of the credits
described in this section 5.2(a), Customer must notify Exodus within three (3)
business days from the time Customer becomes eligible to receive a credit.
Failure to comply with this requirement will forfeit Customer's right to receive
a credit.
(iv) Remedies Shall Not Be Cumulative: Maximum Credit: In the event
that Customer is entitled to multiple credits hereunder arising from the same
event, such credits shall not be cumulative and Customer shall be entitled to
receive only the maximum single credit available for such event. In no event
will Exodus be required to credit Customer in any one (1) calendar month
connectivity charges in excess of seven (7) days of service. A credit shall be
applied only to the month in which there was the incident that resulted in the
credit. Customer shall not be eligible to receive any credits for periods in
which Customer received any Internet Data Center Services free of charge.
(v) Termination Option for Chronic Problems: If, in any single
calendar month, Customer would be able to receive credits totaling fifteen (15)
or more days (but for the limitation in paragraph (iv) above) resulting from
three (3) or more events during such calendar month or, if any single event
entitling customer to credits under paragraph 5.2(a)(i) exists for a period of
eight (8) consecutive hours, then, Customer may terminate this Agreement for
cause and without penalty by notifying Exodus within five (5) days following the
end of such calendar month. Such termination will be effective thirty (30) days
after receipt of such notice by Exodus.
THIS WARRANTY DOES NOT APPLY TO ANY INTERNET DATA CENTER SERVICES THAT EXPRESSLY
EXCLUDE THIS WARRANTY (AS DESCRIBED IN THE SPECIFICATION SHEETS FOR SUCH
PRODUCTS). THIS SECTION 5.2(a) STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.
No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET OUT IN SUBSECTION
(a) ABOVE, THE INTERNET DATA CENTER SERVICES ARE PROVIDED ON AN "AS IS" BASIS,
AND CUSTOMER'S USE OF THE INTERNET DATA CENTER SERVICES 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, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES ARISING FORM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
(C) Disclaimer of Actions Caused by and or Under the Control of Third
Parties. EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM EXODUS'
INTERNET DATA CENTERS AND 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' NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
SUCH PERSONS DURING SUCH A VISIT.
6.2 Damage to Customer Equipment or Business. EXODUS ASSUMES NO LIABILITY
FOR ANY DAMAGE TO, OR LOSS RELATING TO, CUSTOMER'S BUSINESS RESULTING FROM ANY
CAUSE WHATSOEVER. 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.
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
ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, CUSTOMER EQUIPMENT,
CUSTOMER'S BUSINESS OR OTHERWISE, AND 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'S BUSINESS, 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 or relating to
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, defend and
hold Customer harmless from and against any and all costs, liabilities, losses,
and expenses (including, but not limited to, reasonable attorneys' fees)
(collectively, "Losses") resulting from any claim, suit, action, or proceeding
(each, an "Action") brought against Customer alleging (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 or
Customer Equipment) and (ii) personal injury to Customer's Representatives from
Exodus' gross negligence or willful misconduct.
7.2 Customer's Indemnification of Exodus. Customer will indemnify, defend
and hold Exodus, its affiliates and customers harmless from and against any and
all Losses resulting from or arising out of any Action brought by or against
Exodus, its affiliates or customers alleging: (a) with respect to the Customer's
Business: (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; (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 damages arising from the Customer
Equipment or Customer's Business.
7.3 Notice. Each party will provide the other party prompt written notice
upon 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 first (1st) anniversary of the
Installation Date by providing ninety (90) days' prior written notice to the
other party at any time thereafter.
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(b) For Cause. Either party will have the right to terminate this Agreement
if: (i) the other party breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days after receipt of
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.
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
under this Agreement 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 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 Customer Equipment as Security. In the event that Customer fails to pay
Exodus all amounts owed Exodus under this Agreement when due, Customer Agrees
that upon written notice, Exodus may take possession of any Customer Equipment
and store it, at Customer's expense, until taken in full or partial satisfaction
of any lien or judgment, all without being liable to prosecution or for damages.
8.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8 and 9.
9. MISCELLANEOUS PROVISIONS.
9.1 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.
9.2 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 (i) it has been granted only a license to occupy
the Customer Space and use the Internet Data Centers and any equipment provided
by Exodus in accordance with this Agreement, (ii) Customer has not been granted
any real property interest in the Customer Space or Internet Data Centers, and
(iii) Customer has no rights as a tenant or otherwise under any real property or
landlord/tenant laws, regulations, or ordinances. For good cause, including the
exercise of any rights under Section 8.5 above, Exodus may suspend the right of
any Representative or other person to visit the Internet Data Centers.
9.3 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 9.3.
9.4 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.
9.5 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, Customer agrees that it will not, and
will ensure that its affiliates do not, directly or indirectly, solicit or
attempt to solicit for employment any persons employed by Exodus during such
period.
9.6 Governing Law: Dispute Resolution. Severability; Waiver. This agreement
is made under and will be governed by and construed in accordance with the laws
of the State of California (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. Any
dispute relating to the terms, interpretation or performance of this Agreement
(other than claims for preliminary injunctive relief or other pre-judgment
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 arbitration will
proceed even if such a person is unavailable. 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 full force and
effect. 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.
9.7 Assignment; Notices. Customer may not assign its rights or delegate
its duties under this Agreement either in whole or in part without the prior
written consent of Exodus, except that Customer may assign this Agreement in
whole as part of a corporate reorganization, consolidation, merger, or sale of
substantially all of its assets. Any attempted assignment or delegation without
such consent will be void. Exodus may assign this Agreement in whole or part.
This Agreement will bind and inure to the benefit of each party's successors
and permitted assigns. Any 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, whichever is earlier.
9.8 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.
9.9 Entire Agreement; Counterparts. This Agreement, including all
documents incorporated herein by 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. 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.
Customer's and Exodus' authorized representatives have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
Signature: /s/ Hilary Billings Signature: /s/ [illegible]
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Print Name: Hilary Billings Print Name: Sallie McLean
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Title: President and CEO Title: Contracts Manager
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ORDER FORM
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Customer Bill to:
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<S> <C> <C> <C> <C>
RedEnvelope, Inc. RedEnvelope, Inc.
911002 201 Spear Street
Third Floor
San Francisco CA 84105
USA
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Quote Date: April 18, 2003 DC: : Santa Clara Payment : Net 30
Form # : 1-1GUNOO Revision : 1 Sales Person : Vicki Alexander
Valid From: 4/17/2003 Through : 5/17/2003 Order Status : Final
Partner
Purchase Order No. No PO Required
|-----------------------------------------------------------------------------------|
|Requested Service Date : 05/10/2003 Initial Terms : 12 Months|
|-----------------------------------------------------------------------------------|
------------------------------------------------------------------------------------------------------------------------------------
</Table>
<Table>
<Caption>
Monthly Extended Extended
Recurring Non-Recurring Monthly Non-Returning
Description* IDC Qty Cost Cost Fees Fees
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
7 EXO-FH-VDCCage VDC-Cage Santa 3 [*] [*] [*] [*]
Clara
------------------------------------------------------------------------------------------------------------------------------------
8 EXO-BW-BASE-U10 Bandwidth Base - 10 Santa 1 [*] [*] [*] [*]
Mbps - 10 Clara
------------------------------------------------------------------------------------------------------------------------------------
10 EXO-BW-ASSET-FE Fast Ethernet Line Santa 1 [*] [*] [*] [*]
Asset Clara
------------------------------------------------------------------------------------------------------------------------------------
11 EXO-TELCO-11 Monthly recurring fee Santa 1 [*] [*] [*] [*]
for the circuit from Clara
the Telco.
------------------------------------------------------------------------------------------------------------------------------------
Variable Usage EXO-BW-BASE-UV 0
above base
EXO-BW-BASE-UV Variable Bandwidth Santa [*]
Price/Mbps Above Clara
Base
------------------------------------------------------------------------------------------------------------------------------------
Group Total [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
Cancel Services
------------------------------------------------------------------------------------------------------------------------------------
1 EXC-VDC Visual Data Center Santa -3 [*] [*] [*] [*]
(7ft X 8ft) Clara
------------------------------------------------------------------------------------------------------------------------------------
2 EXO-BW-BASF-U1O Bandwidth Base - 10 Santa -1 [*] [*] [*] [*]
Mbps Clara
------------------------------------------------------------------------------------------------------------------------------------
3 EXO-BW-ASSET-FE Fast Ethernet Line Santa -1 [*] [*] [*] [*]
Asset Clara
------------------------------------------------------------------------------------------------------------------------------------
6 EXO-TELCO-T1 Monthly Recurring fee Santa -1 [*] [*] [*] [*]
for the circuit from Clara
the Telco.
------------------------------------------------------------------------------------------------------------------------------------
Variable Usage above Base EXO-BW-BASE-UV 0
EXO-BW-BASE-UV Variable Bandwidth Santa [*]
Price/Mbps Above Clara
Base
------------------------------------------------------------------------------------------------------------------------------------
Group Total [*] [*]
------------------------------------------------------------------------------------------------------------------------------------
</Table>
* Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this
exhibit has been filed separately with the Securities and Exchange
Commission.
Order Form
Order Form Terms and Conditions:
--------------------------------
(1) Customer hereby orders and Cable & Wireless Internet Services, Inc. ("C&W")
hereby agrees to provide the services, hardware and/or software described
in this Order Form (collectively, "the Services").
(2) THE SERVICES ARE PROVIDED PURSUANT TO THE TERMS AND CONDITIONS OF THIS
ORDER FORM AND THE TERMS AND CONDITIONS OF THE FOLLOWING C&W DOCUMENTS:
a) Specification sheet(s).
b) Statement of work signed by Customer and C&W.
c) The appropriate services agreement between Customer and C&W whether it
be a Master Services Agreement, Internet Data Center Services Agreement.
Global Services Agreement, End User Agreement and/or Professional
Services Agreement.
(3) The Customer representative signing below hereby acknowledges and agrees
that in the event that Customer does not issue a purchase order prior to
the requested service date, this Order Form shall serve as Customer's
purchase order. Customer further acknowledges that any additional or
conflicting terms and conditions contained in Customer's purchase order
shall not be applicable to the services to be provided hereunder, even if
C&W uses such purchase order for invoicing purposes.
(4) Customer will not be bound by this Order Form until it has been signed by
an authorized representative of Customer. Acceptance of the Order Form is
subject to C&W credit approval.
(5) The Customer representative signing below hereby acknowledges and agrees
that: (a) Customer shall have ten (10) business days from the date that
Customer verbally accepts the newly installed services to return to C&W an
executed Customer Acceptance Form ("CAF") confirming acceptance or delivery
of the services on the CAF (the "CAF Services"); (b) in the event Customer
does not return the CAF to C&W in accordance with this paragraph, a C&W
customer representative will speak with Customer in an attempt to resolve
outstanding issues relating to the acceptance of the CAF Services; (c) if
Customer fails to submit an executed CAF within five (5) days after
speaking with the C&W customer representative regarding any uninstalled CAF
Services, C&W may terminate the CAF Services; and (d) in the event C&W
terminates the CAF Services due to Customer's failure to accept the
services in writing, Customer will be charged, and Customer agrees to pay,
for any and all setup fees, de-installation fees or charges for the
services terminated in accordance with this paragraph.
(6) THERE ARE IMPORTANT TERMS AND CONDITIONS, WARRANTY DISCLAIMERS, LIABILITY
LIMITATIONS AND SERVICE DESCRIPTIONS CONTAINED IN THE APPLICABLE SERVICES
AGREEMENT, SPECIFICATION SHEET(S) AND STATEMENTS OF WORK. DO NOT SIGN THIS
ORDER FORM BEFORE YOU HAVE READ ALL THE TERMS OF THE APPLICABLE SERVICES
AGREEMENT, SPECIFICATION SHEET(S) AND/OR STATEMENTS OF WORK WHICH PERTAIN
TO THIS ORDER. YOUR SIGNATURE BELOW INDICATES THAT YOU HAVE READ THE TERMS
OF THIS ORDER FORM AND THE ADDITIONAL TERMS IN THE APPLICABLE SERVICES
AGREEMENT, SPECIFICATION SHEET(S) AND/OR STATEMENTS OF WORK AND AGREE TO BE
BOUND BY THEM.
--------------------------------------------------------------------------------
CUSTOMER CABLE & WIRELESS INTERNET SERVICES, INC.
Signature: /s/ John W. Roberts Signature:
--------------------------- ------------------------------
Print Name: John W. Roberts Print Name:
-------------------------- -----------------------------
Title: VP of IS Title:
------------------------------- ----------------------------------
Date: 4/21/03 Date:
-------------------------------- ----------------------------------
--------------------------------------------------------------------------------
Customer's Initials
-----
Order Form: 1-1GUNCO Rev: 1
Proprietary and Confidential Page 4 of 4