Internap Standard Terms and Conditions - Internap Network Services Corp. and Recruitsoft Inc.
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INTERNAP STANDARD TERMS AND CONDITIONS
This Agreement, with an Effective Date of September 1, 2002 ("Effective Date"),
is between Internap Network Services Corporation, including its affiliates and
subsidiaries ("Internap"), 601 Union St., Ste. 1000, Seattle, WA 98101, and
Recruitsoft Inc., including its affiliates and subsidiaries, having offices at
182 Second Street, 5th Floor, San Francisco, California 94105 ("Customer"). In
addition to these Standard Terms and Conditions, the following attached
documents are deemed part of this Agreement: SALES ORDER FORM (including all
such forms executed hereafter by Customer for Services (defined below) under
this Agreement (together, the "Sales Order Form")) - ATTACHMENT A; SERVICE LEVEL
AGREEMENT - ATTACHMENT B; SERVICE DESCRIPTION - ATTACHMENT C; and COLLOCATION
SPACE SUBLICENSE - ATTACHMENT D (if applicable). Both Internap and Customer are
referred to herein individually as a "Party" and collectively as the "Parties."
1. SERVICES. Customer agrees to purchase the Internet connectivity services and
collocation services (if applicable) described in the attached Sales Order Form
and Service Description ("Services"). Internap agrees to provide such Services
in accordance with the attached Service Level Agreement and the Internap Network
Operations Center ("NOC") Guide as currently in effect.
2. TERM AND TERMINATION. The term of this Agreement ("Term") commences on the
Effective Date and continues for two years (or longer, per the Sales Order Form)
from the commencement of Services billing (as described in Section 4). The Term
automatically renews for one-year renewal periods, upon mutual consent.
Termination for cause by either Party may occur upon: (a) unremediated material
breach by the other Party of any term herein or in any attached document after
thirty days written notice; (b) the other Party's failure to function as a going
concern or operate in the ordinary course; (c) assignment by the other Party for
the benefit of creditors; (d) voluntary or involuntary bankruptcy filing by or
against the other Party; or (e) breach of the confidentiality restrictions in
Section 5. Except where early termination occurs due to lack of agreement on new
pricing (Section 3) or force majeure (Section 11(b)) or termination for cause by
Customer as outlined in this Section 2, or if Customer exercises its termination
right as described in the Service Level Agreement, in which case Customer will
not incur the Cancellation Fee (defined below), if Customer terminates this
Agreement prior to the end of the Term (as same may be renewed in accordance
herewith), Customer shall pay all amounts then due and unpaid plus fifty percent
of the amount Customer would otherwise have had to pay to Internap over the
remainder of the Term for each current Sales Order Form (the "Cancellation
Fee"), calculated based on the remaining number of months of the Term, at a
monthly rate based on the greater of (i) the monthly average billings hereunder
during the Term and (ii) the minimum monthly billing tier amount. The
Cancellation Fee also applies at Internap's election upon its termination of
this Agreement for Customer's material breach, without any offset or mitigation
of damages required therefor. Customer agrees to pay any Cancellation Fee within
ten days of any specified early termination event. Customer acknowledges that
such Cancellation Fee is not a penalty but is in the nature of liquidated
damages.
3. FEES AND INVOICING. Customer shall pay the fees and charges set forth in the
Sales Order Form, as well as the costs of third party services or products,
including increases thereto, purchased by Internap on Customer's behalf at
Customer's request (collectively, the "Fees"). Fees shall be invoiced together
with any applicable sales, use or other taxes at the beginning of each month
during which the Services are to be provided or at the end of the month if the
Services are usage based, which Fees shall be determined in accordance with
Internap's customary method of calculation. Fees and all applicable taxes shall
be paid to Internap at its address first above written or at such other place as
Internap may designate in writing. Undisputed payments are due net thirty days
from the date of Internap's invoice and are subject to late charges thereafter,
calculated at the lesser of 1.5% interest per month or the maximum rate
permitted by law. Internap may suspend performance or provision of the Services
or terminate this Agreement for late or non-payment of Fees and Customer shall
be liable for any attorneys or collection agency fees incurred by Internap in
connection therewith. If Customer is delinquent in its payments, Internap may
upon written notice to Customer, modify the payment terms to require full
payment before the further provision of any Services or require other assurances
to secure Customer's payment obligations hereunder. Internap shall provide
Customer, at its request, with a schedule of any additional fees for additional
services not covered in the Sales Order Form. Internap may price such additional
services in its sole discretion. Any Services upgrades requested by Customer may
result in additional fees or other charges. Internap may reclassify service
levels, revise product or Services descriptions, or modify published prices. If
the Parties fail to agree on a reclassification or modification of such Services
or prices, either Party may terminate this Agreement without liability therefor
except for accrued Fees.
4. BILLING COMMENCEMENT. Billing for Internap port fees commences upon the
earliest of (a) activation of the port circuit at Internap's service point; (b)
thirty days from delivery of any applicable local loop/Telco connection; and (c)
the expiration of the standard install interval specified in the Sales Order
Form. Billing for any applicable local loop/Telco fees commences upon delivery
of the local loop/Telco connection. Billing for any applicable collocation space
fees commences upon the earlier of (i) the expiration of the standard install
interval specified in the Sales Order Form; and (ii) the date Customer takes
possession of the Space (as defined in the attached Collocation Space
Sublicense).
5. CONFIDENTIALITY. In connection with this Agreement, the Parties might obtain
information of the other Party which is confidential or proprietary in nature
("Confidential Information"). With respect to Internap, such Confidential
Information shall include, without limitation, any specifications, protocols,
router configuration syntax and routing data and tables related to its P-NAP
facilities, ASsimilator technology and network services; and with respect to
both parties: (a) any processes, methods, ideas, techniques, drawings, works of
authorship, inventions, know-how, software, algorithms and formulae related to
the products or services of either party; (b) information concerning research,
development, financials, procurement, customer lists, investors, employees,
third party relationships, forecasts and marketing plans of either party; (c)
any other information or material that is proprietary to either party; and (d)
any other information that is marked confidential, restricted, proprietary or
with a similar designation. Such information shall be deemed Confidential
Information, whether or not described as such at the time of communication. The
Parties agree: (i) to take all reasonable steps necessary to maintain the
confidentiality of any such Confidential Information and not to disclose such
Confidential Information without the other Party's prior written consent; (ii)
to not use or copy any Confidential Information for any purpose other than in
direct furtherance of the purposes of this Agreement; and (iii) that their
obligations under this Section 5 shall survive the termination of this Agreement
for a period of three years. Notwithstanding the foregoing, each Party's
confidentiality obligations shall not apply to the extent that disclosed
Confidential Information: (1) is already known to the other Party without an
obligation of confidentiality; (2) becomes publicly available through no fault
of the other Party; (3) is received from a third party rightfully and without
restriction; (4) is independently developed without exposure to the Confidential
Information; or (5) is required to be disclosed by law, provided the
non-disclosing Party is provided reasonable notice prior to the disclosure and
the disclosing Party reasonably cooperates in any attempt by the non-disclosing
Party to quash the legal requirement or otherwise prevent disclosure of its
Confidential Information through legal means. The terms and conditions of this
Agreement shall be deemed to be Confidential Information.
6. ACCEPTABLE USE AND LICENSE. Customer shall not use, nor shall it permit
others to use, the Services: (a) for any unlawful, immoral, invasive,
infringing, defamatory, fraudulent or obscene purpose; (b) to send unsolicited
email of any kind, regardless of the content or nature of the messages or post
the same or similar message to one or more newsgroups that result in notices or
complaints to Internap; (c) to send any virus, worm, trojan horse or harmful
code; (d) to alter, steal, corrupt, disable, destroy, trespass or violate any
security or encryption of any computer file, database or network; (e) so as to
interfere with the use of the Internap network by other customers or authorized
users; (f) in a manner that is inconsistent with Internap routing policies,
after prior written notice to Customer; (g) or in violation of the acceptable
use policies of Internap's backbone providers. Customer further agrees that it
shall not, nor shall it permit others to: (i) alter, tamper with, adjust, repair
or circumvent any aspect of the Services; or (ii) resell, pass-through,
sublicense, rent, lease, timeshare or rebrand the Services or otherwise provide
the Services to any party not within Customer's enterprise and related
personnel. If Customer, or a third party through Customer, violates any of the
foregoing prohibitions, Internap may immediately suspend the Services and/or
terminate this Agreement without further liability or obligation to Customer.
Customer's rights to use the Services are non-exclusive, non-transferable and
subject to compliance with the terms and conditions herein. As between Internap
and Customer, all intellectual property and proprietary rights relating to the
Services, including but not limited to any specifications, protocols, IP
addresses, configurations and routing data related to the Services belong solely
and exclusively to Internap. Customer shall reproduce and include any of
Internap's proprietary notices on any whole or partial copy of Internap's
intellectual property or Confidential Information, regardless of the media on
which such copy is made.
7. PROVISION AND MAINTENANCE OF SYSTEMS. Customer shall, at its own expense,
provide all necessary preparations required to connect to the Services and
comply with Internap's installation and maintenance specifications for delivery
of the Services. If Customer multihomes to the Internap network, Customer shall
implement Internap's Diversity Plus service. Customer shall be responsible for
the costs of relocation or removal of connectivity that results from Customer's
actions. Customer shall provide Internap or its agents with reasonable access to
Customer's premises to perform any acts required under this Agreement. In
accordance with Internap's and any other relevant equipment manufacturer's
specifications, Customer shall maintain a suitable environment for any Internap
equipment housed on Customer's premises and/or on premises rented by Customer or
under its control. Customer shall be liable for any and all damages to
Internap-owned or leased property that may be located on such premises,
excluding reasonable wear and tear. If Customer has Internap-owned or leased
property located on its premises, Customer shall obtain and maintain insurance
designating Internap as a loss payee under Customer's property policy and as an
additional insured under Customer's general liability policy. All such policies
of insurance obtained by Customer shall name Internap, its parent, subsidiaries
and affiliated companies as additional insureds therein.
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Customer's insurance shall be primary over Internap's insurance. Customer agrees
to waive and to require its insurers to waive any rights of subrogation or
recovery they may have against Internap, its agents, officers, directors and
employees. Customer shall deliver to Internap annual certificates reflecting
that Customer has obtained and is maintaining the required insurance coverages
in the appropriate amounts. Upon expiration or termination of this Agreement,
Customer shall surrender to Internap all equipment or other property owned or
leased by Internap that has been provided to Customer. Internap shall not be
responsible: (a) for the installation, operation or maintenance of any hardware,
software, cabling or services not provided by Internap in connection with the
Services; or (b) if any changes in the Services cause hardware, software,
cabling or services not provided by Internap to become obsolete or to require
modification. Customer shall be responsible for the selection, use and
compatibility of hardware, software, cabling and services not provided by
Internap, and if such items impair Customer's use of the Services, Customer
shall remain liable for payment to Internap for the Services. Upon notice from
Internap that any such component is reasonably likely to cause or has caused a
hazard, interference or obstruction of the Services, Customer shall eliminate
such item immediately, and Internap may disconnect the Services until such
elimination occurs. If requested by Customer, Internap may, at its then current
rates, trouble-shoot difficulties caused by such items. Unless otherwise agreed
in writing, if Customer provides its own router in conjunction with the Services
(e.g., a remote frame relay or private line connection from Customer's premises
to an Internap facility), then Customer is fully responsible for the
installation, maintenance and configuration of such Customer-provided router.
Subject to Internap's approval, Customer is required to use a router capable of:
(i) dealing with a full Internet routing table; (ii) speaking BGP4 in compliance
with the current Internet RFC; (iii) receiving standard BGP communities; and
(iv) using such communities to effect Internap's routing policy.
8. INTERNAP WARRANTY AND DISCLAIMER. Subject to the limitations contained
herein, Internap warrants that its proprietary P-NAP facilities and ASsimilator
technology in the Services will, in all material respects, conform to the
requirements of the Service Description, Service Level Agreement and Sales Order
Form, as well as to any other applicable terms and conditions contained in this
Agreement. Customer's sole and exclusive remedy for breach of the above warranty
or any claim related to the Services shall be repair or replacement of the
Services in accordance with the Service Description, Service Level Agreement and
NOC Guide, credits pursuant to the Service Level Agreement, or termination
pursuant to Section 2 above. For equipment provided by Internap under the
Customer Premise Equipment program, Internap's responsibility shall be strictly
as set forth in the agreements covering such program, and if none, then all such
responsibility and any representation or warranty, is hereby expressly
disclaimed, whether express or implied, to the maximum amount allowed by law.
WITH RESPECT TO THE SERVICES, ANY EQUIPMENT AND/OR THE SUBJECT MATTER OF THIS
AGREEMENT, THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT
ALLOWED BY LAW.
9. LIMITATION OF LIABILITY. Under no circumstances shall Internap be liable,
either in contract, tort, warranty, strict liability, negligence or under any
statute, regulation or any other theory for: (a) unauthorized access,
alteration, theft, corruption, or destruction of or to Customer's or its
customer's or end user's computer files, databases, network, transmission
facilities or equipment; or (b) the content, accuracy or quality of the data
transmitted through the Services. For any claim arising under or related to the
Services or this Agreement, both parties' damages or recovery shall be limited
to those actually proven as directly attributable to the other party, subject to
the following limitations: (i) neither party shall not be liable under any
circumstances for any indirect, incidental, reliance, special, punitive or
consequential damages including, but not limited to, lost profits, lost
opportunities, diminished stock price or damages for lost data or business
interruption, even the party has been advised of the possibility of such
damages; and (ii), except in the event of either parties' gross negligence or
willful misconduct or breach of section 7, neither party shall in no event be
liable to the other party for an amount greater than the amount paid by Customer
to Internap for the Services in the six months prior to notice of the claim
under which damage is claimed; provided, however that the foregoing limitation
on liability shall not apply to a violation of the confidentiality obligations
set forth in Section 5 above or personal injury claims.
10. INDEMNITY. Customer will indemnify and save Internap harmless from and
against all loss, liability, damage and expense, including reasonable attorneys
fees, caused by Customer's officers, employees, agents, vendors or contractors
arising from claims or demands: (a) for damages to property or for injury or
death to persons, including without limitation any disability, death or Worker's
Compensation benefits; (b) arising from data transmitted, received or stored on
or over Internap's network by or through Customer in violation of the provisions
of Section 6 above; (c) arising from Customer's violation of the provisions of
Section 7 above; (d) for any damages or loss incurred directly by Internap as a
result of a failure of any Customer-provided equipment installed within
Internap's facilities or on Customer's premises, including, but not limited to,
failures resulting in fire, electrical malfunction, and heat and/or water
damage, even when such Customer-provided equipment was installed with the
permission or assistance of Internap; (e) of infringement of a third party's
proprietary rights based on any information, materials or access to property
provided by Customer; or (f) arising out of or relating to the conduct of
Customer's business, including without limitation, claims by any customer or end
user of Customer's products or services, and claims relating to the acquisition
or use by Customer of any work product or Services to be provided under this
Agreement. Internap will indemnify and save Customer harmless from and against
all loss, liability, damage and expense, including reasonable attorneys fees,
caused by Internap's officers, employees, agents, vendors or contractors arising
from claims or demands: (i) for damages to property or for injury or death to
persons, including without limitation any disability, death or Worker's
Compensation benefits; or (ii) that Customer's use of the Services according to
the terms and conditions herein infringe any third party's United States patent,
copyright, or trade secret; provided that Customer notifies Internap promptly of
such claim, turns over control of the defense or settlement of such claim to
Internap in its sole discretion, and cooperates reasonably and at its expense
with Internap regarding defense of such claim. In the event that an injunction
is, or Internap believes that an injunction will be, obtained against Customer
prohibiting use of the Service by reason of infringement of a United States
patent, copyright or trade secret, Internap will, at its option and expense,
either procure the right for Customer to continue using the Service, or procure
alternative service, or direct Customer to return or rescind the Service
provided by Internap, and in such event, terminating by mutual consent this
Agreement for the Service without any further obligation or liability
therefor.THIS SECTION 10 STATES THE ENTIRE OBLIGATION OF THE PARTIES WITH
RESPECT TO ANY CLAIM REGARDING INDEMNIFICATION AND STATES THE PARTIES' SOLE AND
EXCLUSIVE REMEDY WITH RESPECT THERETO.
11. MISCELLANEOUS.
(a) This Agreement shall be binding on the Parties and their respective
successors and permitted assigns. Either Party may assign and transfer this
Agreement in whole or in part and may delegate its duties or assign its rights
hereunder to any parent company, company under its or any common ownership or
control, where ownership or control is represented by ownership of at least
fifty percent of an entity's equity or voting securities or shares, or any
company that acquires all or substantially all of the stock or assets of it.
Notwithstanding this Section 11(a), Customer may terminate this Agreement upon
not less than 90 days written notice in the event that Internap assigns the
Agreement to a direct competitor of Customer or its parent.
(b) In the event that Customer purchases Services outside the United
States, Customer shall purchase Services to be provided in the United Kingdom
from Internap Network Services U.K. Limited and Services to be provided in the
Netherlands from Internap Network Services B.V. Sales Order Forms for the
Services shall be executed by such Internap entities and Customer.
(c) Internap shall not be liable for any delay or failure in performance
due to war, riots, embargoes, strikes, casualties, accidents, fire, earthquake,
flood, acts of God, supplier or vendor failure, outage or malfunction of local
or longhaul telecommunications services, utility outage or other occurrence
beyond Internap's direct control (each, a "Force Majeure Event"). Internap shall
notify Customer of a Force Majeure Event and if a Force Majeure Event continues
for more than fifteen days, Internap or Customer may cancel this Agreement with
no further liability (except for any amounts due and not paid by Customer) as a
result of such Force Majeure Event.
(e) The Parties shall attempt to resolve all disputes arising out of, or
related to, this Agreement through good faith negotiations. Any disputes or
claims arising out of or relating to this Agreement must be brought within one
year of the occurrence of any such dispute or accrual of any such claim. The
substantially prevailing Party shall be entitled to its costs, including
reasonable attorneys fees, in connection with any action arising from this
Agreement.
(f) This Agreement shall be governed by the internal laws of the State of
Washington, as applied to contracts entered into in Washington, by and between
its residents for exclusive performance therein. The Parties hereby irrevocably
consent to the sole and exclusive jurisdiction of and venue in the district
courts for the Western District of Washington, in Seattle, Washington, or if
federal subject matter jurisdiction does not exist, then in the courts of the
State of Washington, located in King County.
(g) This Agreement is the entire and complete Agreement between the Parties
with respect to the Services and subject matter hereof and supersedes any prior
or contemporaneous agreements or understandings between the Parties, whether
written or oral, and may not be modified in any way unless by means of written
addendum, signed and dated by the duly authorized representatives of the
Parties. In the event of any conflict between these Standard Terms and
Conditions and any of the Attachments, these Standard Terms and Conditions shall
control unless expressly stated to the contrary. If any portion of this
Agreement is found to be invalid or unenforceable, the remaining provisions
shall remain in effect and the Parties shall immediately begin negotiations to
replace any invalid or unenforceable portions that are essential parts of this
Agreement. Any provision hereof that contemplates continuing obligations on a
Party shall survive the expiration or termination of this Agreement.
04.02.01
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[INTERNAP LOGO]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on and as of
the day and year first above written.
INTERNAP NETWORK SERVICES CORPORATION: CUSTOMER:
By: /s/ Joe Cimitile By: /s/ Jean Lavigueur
Title: Market Manager Title: CFO
Printed Name: Joe Cimitile Printed Name: Jean Lavigueur