Internet Services Agreement - Verio Inc. and ValueClick Inc.
VERIO
Pacific Headquarters
1777 Botelho Drive, Suite 130
Walnut Creek, CA 94596
October 6, 1999
Verio ValueClick
345 East Middlefield Rd. 6450 Via Real
Mountain View, CA 94043 Carpinteria, CA 93014-5008
(650) 944-8253 (805) 684-6060
(650) 966-9090 (805) 566-0190
Stacy D'Amico John Schwenk
VERIO INTERNET SERVICES
<TABLE>
<CAPTION>
Service Description No. Pricing Monthly One-Time Product Code Site
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Verio Co-Location 1 Manual $15,000.00 $0.00 VERIO-OOR-COLO 1
None 1 Auto 1
None 1 Auto 1
None 1 Auto 1
None 1 Auto 1
4 racks at $250 per $ 1,000.00
Boca-Raton
Total Vario Internet Services $16,000.00 $0.00
</TABLE>
VERIO NETWORKING EQUIPMENT
<TABLE>
<CAPTION>
Item Description No. Service Cost Total Hardware Order Code Site
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
None 1 1
None 1 1
None 1 1
None 1 1
None 1 1
None 1 1
Total Vario Networking Equipment
</TABLE>
<TABLE>
<CAPTION>
FEATURES OF THE SELECTED VARIO INTERNET SERVICES IP ITEM
<S> <C>
Verio Co-Location (out-of-region features may vary, see comments) 1
2
3
4
5
</TABLE>
ASSOCIATED TELCO SERVICES REQUIRED
<TABLE>
<CAPTION>
Site Telco Connectivity Service No Carrier Monthly One-Time Verio Pop NPA/nxx
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1 Ethernet X-Connect 1 $0.00 $0.00 None
1 None None
1 None None
1 None None
1 None None
TOTAL TELCO SERVICES $0.00 $0.00
</TABLE>
<PAGE>
VERIO
Pacific Headquarters
1777 Botelho Drive, Suite 130
Walnut Creek, CA 94596
October 6, 1999
Verio ValueClick
345 East Middlefield Rd. 6450 Via Real
Mountain View, CA 94043 Carpinteria, CA 93014-5008
Stacy D'Amico John Schwenk
SUMMARY PRICING FOR SELECTED VERIO SERVICES AND PRODUCTS
<TABLE>
<CAPTION>
Service Description Monthly One-Time Comments
<S> <C> <C> <C> <C>
Verio Total Internet Charges $16,000.00 $0.00
Total Telco Charges
Total Network Equipment
Other Charges or Credits (VERIO)
Other Charges or Credits Tax%
Tax 8.25%
Totals $16,000.00 $0.00
</TABLE>
TERMS AND CONDITIONS
This quote for Verio services and products is valid for 30 days (promotions may
expire earlier). After 30 days, this quote may be honored by Verio at its sole
discretion. To accept this quote and order the services and/or products
represented here, you must sign this quote, choose a payment method, and return
this document to Verio or one of its authorized agents. Signature indicates
acceptance of Verio's "ACCESS SERVICE AGREEMENT TERMS AND CONDITIONS" (attached)
, as well as the pricing, products, and services indicated on this quote.
Telephone company pricing included in this quote is believed to be accurate, but
is not guaranteed by Verio.
<TABLE>
<S> <C> <C>
/s/ JOHN SCHWENK [ILLEGIBLE]
---------------------------- -----------------------------
Signature Accepted For: Title of Representative
John Schwenk June 8, 1999
ValueClick
6450 Via Real
Carpinteria, CA 93014-5008
Contract Term: 1 year
</TABLE>
ADDITIONAL COMMENTS OR SPECIAL CONDITIONS
Verio commits to installing an OC-3 within 90 days in the Boca-Raton, Florida
facility. Pricing per Mbps is based upon the attached Proposed Solution. Verio
commits to installing a DS-3 in the Boca Raton facility within 30 days.
Please sign this agreement after reading the terms and conditions and additional
stipulations below:
1. Set-up includes installation fees and associated set-up and
configuration of equipment
2. 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) order by Verio on
behalf of Customer or purchased directly by Customer in connection with
Service(s) will not be deemed a breach of Verio's obligations under
this Agreement.
3. 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 niot be responsible for any changes in
services 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. Prices do not include the cost of shipping and handling
of equipment.
4. Customer may incur early termination charges from the Telephone Company
in the event services are cancelled prior to completion of contract
terms.
<PAGE>
VERIO
ValueClick
6450 Via Real
Carpinteria, CA 93014-5008
John Schwenk
Phone: (805)684-6060 Fax:(805)566-0190
IP INFORMATION:
The InterNIC requires that Verio provide complete justification for any IP
numbers that are allocated to Verio customers. The information below must be
completed to receive IP numbers from Verio.
<TABLE>
<S> <C>
Number of hosts (devices needing an IP #) on your network currently: 40
Number of hosts added with this connection: 30
Number of total hosts anticipated within the next 12 months: 45
Number of total hosts anticipated within the next 24 months: 100
Quantity of IP Numbers requested with this connection: 32
IP numbers allocated (to be completed by Verio personnel):
</TABLE>
DOMAIN NAME INFORMATION:
Customer (has/requests/does not have) a domain name: HAS
Enter the current domain name to the right: VALUECLICK.COM
Which ISP currently does DNS for this domain name?:
You will continue to be billed for your Domain Name maintenance by Network
Solutions.
Please attach a network diagram to this form.
<PAGE>
VERIO CUSTOMER LOCATION AND BILLING INFORMATION
<TABLE>
<CAPTION>
SERVICE ADDRESS 1 IP SERVICE SERVICE DESCRIPTION
<S> <C> <C>
Company Name: ValueClick TECH CONTACT
Address: 6450 Via Real E-MAIL
City, State, Zip: Carpinteria, CA 93014-5008 PHONE
Customer Contact: John Schwenk Page
Customer Phone: 805-684-6060 SVC PHONE #
Customer Fax: 805-566-0190 JACK/MPOE
Customer E-Mail:
<CAPTION>
SERVICE ADDRESS 2 IP SERVICE SERVICE DESCRIPTION
<S> <C>
Company Name: TECH CONTACT
Address: E-MAIL
City, State, Zip: PHONE
Customer Contact: Page
Customer Phone: SVC PHONE #
Customer Fax: JACK/MPOE
Customer E-Mail:
<CAPTION>
SERVICE ADDRESS 3 IP SERVICE SERVICE DESCRIPTION
<S> <C>
Company Name: TECH CONTACT
Address: E-MAIL
City, State, Zip: PHONE
Customer Contact: Page
Customer Phone: SVC PHONE #
Customer Fax: JACK/MPOE
Customer E-Mail:
<CAPTION>
SERVICE ADDRESS 4 IP SERVICE SERVICE DESCRIPTION
<S> <C>
Company Name: TECH CONTACT
Address: E-MAIL
City, State, Zip: PHONE
Customer Contact: Page
Customer Phone: SVC PHONE #
Customer Fax: JACK/MPOE
Customer E-Mail:
</TABLE>
Payment Option (Visa/AMEX/MC/Corporate PO/Check/Other) Check
Make Check Payable to Verio, Inc. Acct# ____________________________________
BILLING ADDRESS:
ValueClick
6450 Via Real
Carpinteria, CA 93014-5008
Contact: John Schwwenk (805) 684-6060/(805)566-0190
<PAGE>
VERIO
1. This agreement applies to the purchase of all services (collectively, the
"Services") ordered by Customer under this Agreement.
2. Customer shall pay the fees and other charges for each Service as provided
in this Agreement. VERIO reserves the right to change rates by notifying the
customer sixty (60) days in advance of the effective date of the change;
provided that VERIO shall not change rates during the term of any Term
Commitment. 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 incvoiced monthly, and payment shall be
due on the date specified in the invoice ("Due Date"). Set-up and equipment
charges shall be invoiced upon acceptance of this Agreement by VERIO.
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 suspenison or termination shall not
relieve Customer of its obligation to pay the monthly fee. Customer agrees to
pay VERIO its reasonable expanses, including attorney's fees and collection
agency fees, incurred in enforcing its rights under this Agreement. Customer
shall pay all federal, state, and local state taxes assessed with respect to
the Services and the sale of equipment to Customer, except that taxesbased on
VERIO's net income shall be the responsibility of VERIO.
3. This Agreement will be automatically renewed on a month-to-month basis at
the end of the Term Commitment unless Customer provides ninety (90) days
written notice to VERIO of termination of this Agreement. 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.
4. Customer shall at all times adhere to the VERIO Acceptable Use Policy at
http://www.verio.net/isite/policy.html, as amended from time-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 WARRENTIES
OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTIBILITY 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 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 O FANY DATA TRANSFERRED WHETHER TO OR FROM CUSTOMER OR STORED BY
CUSTOMER OR ANY OF ITS CUSTOMERS VIA THE SERVICE(S) PROVIDED BY VERIO.
6. 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 attorney's fees)
threatened, asserted, or filed by a third party against any of the
indemnified parties arising out of or relasting to the use of the Services,
including any violation of the VERIO Acceptable Use Policy.
7. 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
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 the 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 or delay in
telecommunications services or inability to obtain raw materials, supplies,
or power used in or equipment needed for provision of the Services.
8. The validity, interpretationm enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the laws of
the State of Colorado. This Agreement may not be amended except upon written
consent of the parties; provided that the VERIO Acceptable Use Policy may be
amended form 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 successors, and assigns. Customer may not assign this Agreement
without the prior consent of VERIO. If any provision of 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 supercedes 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 acceptanxce of this agreement.
<PAGE>
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PROPOSED SOLUTION
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Internet Co-Location Requirements Verio Monthly Recurring Fee
<S> <C>
0 - 20 Mbps $750/Mbps
21 - 30 $700/Mbps
31 - 40 $650/Mbps
Standard 19" rack in cage or cabinets $250/rack
Boca Raton facility, Mountain View, or Los Angeles
</TABLE>
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:
- 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
X_________________________________ Date_________________________
Title______________________________
<PAGE>
SERVICE LEVEL AGREEMENT: AVAILABILITY GUARANTEE
Verio guarantees to have the Verio available to the Client for 99.9% of the
time. Verio will credit Client's account if Verio fails to meet this
availability guarantee during any given calendar month. "Network Unavailability"
consists of the number of minutes that the Verio network is not available to the
Client, but does not include unavailability continuing for an hour of less which
Client fails to report to Verio within 3 business days.
Client shall not receive any credit if Network Unavailability is:
(a) caused by Client's applications, equipment or facilities;
(b) caused by negligence, willful misconduct, or the use of the Verio
services in breach of Verio's Terms and Conditions and Acceptable
Use Policy, by Client or others authorized by Client;
(c) due to a failure of power, facilities, equipment, applications,
systems or connections not provided by Verio;
(d) caused by the failure of access circuits to Verio's network, unless
such failure is solely caused by Verio;
(e) a result of scheduled Verio maintenance;
(f) associated with DNS issues outside the direct control of Verio;
(g) a result of other National networks/exchanges that adversely affect
the ability to pass IP traffic on the Internet as a whole; or
(h) for any reason beyond the control of Verio.
In the event that Verio's Network Availability is less than 99.9% uptime in any
calendar month, Verio will provide a credit on its IP charges to Client. For
every hour, or fraction thereof, of Network unavailability as defined above, a
credit for one day's pro-rated service will be applied to the next monthly
invoice. This amount shall not exceed 7 day's credit for any outage(s) during
any single 24-hour period. Total credits for any outage(s) in any calendar month
will not exceed the amount of the client's regular monthly bill for IP services.
LATENCY GUARANTEE
Verio will guarantee the latency for average round-trip transmission times
between Verio designated backbone routers located in California and the East
Coast. "Average Latency" is defined as the average of samples taken between the
specified backbone routers during a calendar month. In the event that the
Average Latency exceeds 100 milliseconds during a calendar month, Verio will
provide a credit on its IP charges for one day's pro-rated service on the next
monthly invoice.