{"id":42165,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/concentric-host-server-solutions-service-agreement-concentric.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"concentric-host-server-solutions-service-agreement-concentric","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/concentric-host-server-solutions-service-agreement-concentric.html","title":{"rendered":"Concentric Host Server Solutions Service Agreement – Concentric Network Corp. and Corio Corp."},"content":{"rendered":" CONCENTRIC NETWORK CORPORATION\n\n 10590 N. TANTAU AVENUE, CUPERTINO, CA 95014\n\n CONCENTRIC HOST SERVER SOLUTIONS SERVICE AGREEMENT\n\nThis Concentric Host Server Solutions Service Agreement (\"Agreement\") is made\nand entered into on this 29th day of January, 1999 (\"Effective Date\"), by and\nbetween Concentric Network Corporation, Inc., a Delaware corporation\n(\"Concentric\"), and Corio Corporation (\"Customer\"), a Delaware corporation with\nits principal place of business at 700 Bay Road, Suite 210, Redwood City, CA\n94063.\n\nThe Parties hereto agree as follows:\n\n1.0 SERVICES\n\nSubject to the terms and conditions of this Agreement, during the term of this\nAgreement, Concentric will provide to Customer the goods and services\n(collectively, the \"Services\") as described and selected in the applicable\nCo-location Order Form(s), and\/or the Managed Server Order Form(s) (each an\n\"Order Form\") attached hereto as Exhibit A.\n\n2.0 PAYMENT AND INVOICES\n\n2.1 Fees. Customer shall pay Concentric all fees indicated on the applicable\nOrder Form. These fees and charges may include a one-time set-up charge, as well\nas certain monthly fees. During the term of this Agreement the fees shall be\nfixed; however, should Concentric's general fees for the Services decrease\nduring the term, Customer's fees will be adjusted accordingly.\n\n2.2 Payment Terms. Concentric shall invoice Customer monthly, at the end of\neach month, for the fees payable under this Agreement pursuant to the applicable\nOrder Form, and Customer shall pay Concentric such fees no later than thirty\n(30) days after the invoice date. If Concentric does not receive payment in full\nfor each invoice within thirty (30) days after the invoice date, Concentric may\nadd to Customer's account a late charge of 1.5% per month, or the maximum amount\nallowed by law, whichever is less.\n\n2.3 Taxes. All fees are in United States dollars and exclude any applicable\ntaxes. Customer shall pay, indemnify and hold Concentric harmless from all\nsales, use, value added or other taxes of any nature, other than taxes on\nConcentric's net income, including penalties and interest, and all government\npermit or license fees assessed upon or with respect to any fees due under this\nAgreement (except to the extent Customer provides Concentric with a valid tax\nexemption certificate). If any applicable foreign law requires Customer to\nwithhold amounts from any payments to Concentric hereunder: (a) Customer shall\naffect such withholding, remit such amounts to the appropriate taxing\nauthorities and promptly furnish Concentric with tax receipts evidencing the\npayments of such amounts; and (b) the sum payable by Customer upon which the\ndeduction or withholding is based shall be increased to the extent necessary to\nensure that, after such deduction or withholding, Concentric receives and\nretains, free from liability for such deduction or withholding, a net amount\nequal to the amount Concentric would have received and retained in the absence\nof such required deduction or withholding.\n\n3.0 REPRESENTATIONS AND WARRANTIES\n\n3.1 General. Each party represents and warrants that it has the right and\nauthority to enter into this Agreement, and that by entering into this\nAgreement, it will not violate, conflict with or cause a material default under\nany other contract, agreement, indenture, decree, judgment, undertaking,\nconveyance, lien or encumbrance to which it is a party or by which it or any of\nits property is or may become subject or bound. Each party shall, at its own\nexpense, make, obtain, and maintain in force at all times during the term of\nthis Agreement, all applicable filings, registrations, reports, licenses,\npermits and authorizations necessary to perform its obligations under this\nAgreement.\n\n3.2 Compliance with Laws. Customer represents and warrants that no consent,\napproval or authorization of or designation, declaration or filing with any\ngovernmental authority is required in connection with the valid execution,\ndelivery and performance of this Agreement. Each party shall, at its own\nexpense, comply with all laws, regulations and other legal requirements that\napply to it and this Agreement, including copyright, privacy and communications\ndecency laws.\n\n3.3 Acceptable Use.\n\n(a) Customer is solely responsible for the content of any postings, data or\ntransmissions using the Services, or any other use of the Services by Customer\nor by any person or entity Customer permits to access the Services. Customer\nrepresents and warrants that it will: (a) not use any Concentric equipment or\nservices in a manner that: (i) is prohibited by any law or regulation or\nConcentric policy, or to facilitate the violation of any law or regulation or\nsuch policy; or (ii) will disrupt third parties' use or enjoyment of any\ncommunications service or outlet; (b) not violate or tamper with the security of\nany Concentric computer equipment or program; and (c) enter into an agreement\nwith each of its end-users sufficient to comply with the terms herein. If\nConcentric has reasonable grounds to believe that Customer is utilizing the\nServices for any such illegal purpose, as stated above in (a)(i), or disruptive\npurpose, as stated above in (a)(ii) or (b), Concentric may suspend or terminate\nServices immediately upon notice to Customer. Except for actions requiring\nimmediate action as required by government regulation or by law, or required to\nprotect Concentric's network, Concentric will make best efforts to notify\nCustomer in advance of actions it may take to limit Customer's or its User's\naccess to the network.\n\n(b) Customer acknowledges and expressly agrees that Concentric will not be\nliable to Customer or its customers for any action Concentric takes to remove or\nrestrict access to obscene, indecent or offensive content made available by\nCustomer, not for\n\n* Certain information on this page has been omitted and filed \n separately with the Commission. Confidential treatment has \n been requested with respect to the omitted portions.\n\nServerSolutions092298 Confidential Page 1 of 5\n\n\n\n 2\nany action taken to restrict access to material made available in violation of\nany law, regulation or rights of a third party, including but not limited to,\nrights under the copyright law and prohibitions on libel, slander and invasion\nof privacy.\n\n3.4 Facilities\n\nConcentric warrants that the data center facilities in which Customer's\nserver(s) reside will maintain the following features:\n\n* Secure, scalable areas including cabinets, racks, shelves, locked cages\n and suites\n\n* Telco hardened\n\n* Environmental controls\n\n* Redundant heating, ventilation and air condition systems'\n\n* Physically secure with escorted access at all times\n\n* Fire Master 200 Fire Suppression System\n\n* Redundant, built-in, clean, continuous power distribution units to\n servers\n\n* Redundant power: UPS and diesel generator power back-up\n\n3.5 DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY\nWARRANTIES MADE BY CONCENTRIC. CONCENTRIC MAKES NO OTHER WARRANTIES OF ANY KIND,\nEXPRESS OR IMPLIED, WITH RESPECT TO ITS SERVICES, ANY RELATED SERVICE OR\nSOFTWARE, OR THE FITNESS OF THE SPACE FOR CUSTOMER'S USE CONCENTRIC HEREBY\nEXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A\nPARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM A\nCOURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN\nBY CONCENTRIC, ITS EMPLOYEES, LICENSORS OR THE LIKE WILL CREATE A. WARRANTY.\n\n4.0 LIMITATION OF LIABILITY\n\nEXCEPT FOR CUSTOMER'S OBLIGATIONS TO PROVIDE NON LIABILITY FOR CONCENTRIC\nPURSUANT TO SECTION 3.3(b), UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL\n(A) EITHER PARTY OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR\nPROVIDING THE SERVICES, OR (B) WITH REGARD TO THIRD-PARTY SOFTWARE, THE\nAPPLICABLE LICENSOR, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR\nCONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE\nSERVICES, OR, IF APPLICABLE, THE THIRD-PARTY SOFTWARE, INCLUDING BUT NOT LIMITED\nTO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES,\nOMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES,\nDELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION\nOR UNAUTHORIZED ACCESS TO CONCENTRIC'S RECORDS, PROGRAMS OR SERVICES, EVEN IF\nSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF\nANY BREACH BY CONCENTRIC OF THIS AGREEMENT, CONCENTRIC'S LIABILITY TO CUSTOMER\nWILL NOT EXCEED THE AMOUNT PAID TO CONCENTRIC BY CUSTOMER DURING THE PREVIOUS\nTWELVE MONTHS. IN THE EVENT OF ANY BREACH BY THE THIRD-PARTY LICENSOR OF THIS\nAGREEMENT, SUCH LICENSOR'S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID\nFOR SUCH THIRD-PARTY SOFTWARE.\n\n5.0 CONFIDENTIAL INFORMATION\n\n5.1 Definition. For purposes of this Agreement \"Confidential Information\"\nshall mean information including, without limitation, computer programs, code,\nalgorithms, names and expertise of employees and consultants, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics\nand other technical, business, financial and product development plans,\nforecasts, strategies and information marked \"Confidential\", or if disclosed\nverbally, is identified as confidential at the time of disclosure. In addition\nto the foregoing, with respect to Third-Party Software (as defined below),\nConfidential Information shall also include any source or object codes,\ntechnical data, data output of such software, Documentation (as defined below),\nor correspondence owned by the applicable Licensor. Confidential Information\nexcludes information that: (i) was or becomes publicly known through no fault of\nthe receiving party; (ii) was rightfully known or becomes rightfully known to\nthe receiving party without confidential or proprietary restriction from a\nsource other than the disclosing party; (iii) is independently developed by the\nreceiving party without the participation of individuals who have had access to\nthe Confidential Information; (iv) is approved by the disclosing party for\ndisclosure without restriction in a written document which is signed by a duly\nauthorized officer of such disclosing party; and (v) the receiving party is\nlegally compelled to disclose; provided, however, that prior to any such\ncompelled disclosure, the receiving party will (a) assert the privileged and\nconfidential nature of the Confidential Information against the third party\nseeking disclosure and (b) cooperate fully with the disclosing party in\nprotecting against any such disclosure and\/or obtaining a protective order\nnarrowing the scope of such disclosure and\/or use of the Confidential\nInformation. In the event that such protection against disclosure is not\nobtained, the receiving party will be entitled to disclose the Confidential\nInformation, but only as, and to the extent, necessary to legally comply with\nsuch compelled disclosure.\n\n5.2 Nondisclosure. Until the later of three (3) years from the Effective\nDate, or the expiration of the then current term as set forth on the Order From,\neach party agrees to maintain all Confidential Information in confidence to the\nsame extent that it protects its own similar Confidential Information, but in no\nevent less than reasonable care, and to use such Confidential Information only\nas permitted under this Agreement; in addition, with respect to the Confidential\nInformation of the Third-Party Software Licensor, Customer agrees that it shall\nnot use or disclose such information at any time either during the Term or after\nthe termination of this Agreement, except as required by law. Each party agrees\nto take all reasonable precautions to prevent any unauthorized disclosure or use\nof Confidential Information including, without limitation disclosing\nConfidential Information only to its employees: (a) with a need to know to\nfurther permitted uses of such information: (b) who are parties to appropriate\nagreements sufficient to comply with this Section 5; and (c) who are informed of\nthe nondisclosure\/non-use obligations imposed by this Section 5; and both\nparties shall take appropriate steps to implement and enforce such\nnon-disclosure\/non-use obligations.\n\n5.3 Terms of Agreement Confidential. Subject to Section 7.1, each of the\nparties agrees not to disclose to any third party the terms of this Agreement\nwithout the prior written consent of the other party hereto, except to advisors,\ninvestors and others on a need-to-know basis under circumstances that reasonably\nensure the confidentiality thereof, or to the extent required by law.\n\n5.4 Injunctive Relief. In the event of an actual or threatened breach of the\nabove confidentiality provisions, the nonbreaching party will have no adequate\nremedy at law and will\n\nServerSolutions092298 Confidential Page 2 of 5\n\n\n\n 3\nbe entitled to immediate injunctive and other equitable relief, without bond and\nwithout the necessity of showing actual money damages.\n\n6.0 TERM AND TERMINATION\n\n6.1 Term. The term of this Agreement will commence on the Effective Date and\ncontinue for the term for five (5) years. Upon written notice thirty (30) days\nor more prior to the expiration of the initial term, Customer will indicate\nwhether to extend the term for an additional five (5) years or such term as\nCustomer may request, or let the Agreement expire. Absent written notice by\neither party thirty (30) days prior to the end of the initial term, this\nAgreement will automatically renew for successive one (1) year terms under the\nprices then in effect for the Services.\n\n6.2 Termination. A party may terminate this Agreement upon written notice to\nthe other party;\n\n(a) For any material breach of this Agreement, which the defaulting party\nfails to cure within thirty (30) days following written notice by the\nnon-defaulting party of such breach; or\n\n(b) Upon the other party's insolvency or liquidation as a result of which\nsuch party ceases to do business for a continuous period of at least three (3)\nmonths.\n\n6.3 Effect of Termination.\n\n(a) If Customer terminates this Agreement for its convenience prior to the\nexpiration of the initial term or any renewal term, Customer will be liable for\nand pay Concentric the difference between the fees paid and calculated at the\ndiscount level corresponding to the term elected by Customer and the fees paid\nand calculated at the discount level earned.\n\n(b) Customer shall comply with all applicable procedures related to\nequipment removal upon termination. The obligations of Sections 3, 4, 5, 6.3 and\n9 will survive any expiration or earlier termination of this Agreement. In the\nevent of any expiration or earlier termination of this Agreement, Customer will\n(a) if applicable, immediately stop using the Third-Party Software, and in the\napplicable Licensor's sole discretion, return or destroy all copies of the\nThird-Party Software, Documentation (each as defined below) and data output of\nsuch software; and (b) be obligated to pay to Concentric fees and charges\nincurred prior to termination. In addition, if Customer fails to pay any\ninvoice(s) for forty five (45) days or more from the date of such invoice,\nCustomer shall be denied access to the Space (as defined below) until such time\nas the invoice(s) has been paid in full. Finally, within ten (10) days after the\ntermination of this Agreement, if requested, Customer shall return to the\ndisclosing party all originals and copies of all Confidential Information which\nhas been fixed in any tangible medium of expression. If return of digital copies\nis impractical, Customer may destroy the digital copies and send the disclosing\nparty written certification of such destruction.\n\n7.0 MARKETING AND PROMOTION\n\n7.1 Press Release. The parties may agree to cooperate to prepare and release\na joint press release regarding this Agreement, subject to the approval of each\nparty, which must not be unreasonably withheld or delayed.\n\n8.0 FACILITIES\n\n8.1 The following terms and conditions will apply only if Customer has\nfilled out the Co-Location Order Form:\n\n(a) License to Occupy. For purposes of this Agreement, \"Space\" means the\nConcentric facilities where Customer's hardware and software are stored and\noperated. Concentric grants to Customer a non-exclusive license to occupy the\nSpace. Customer acknowledges that it has been granted only a license to occupy\nthe Space and that it has not been granted any real property interests in the\nSpace.\n\n(b) Services. Concentric will provide Customer with the services\n(\"Services\") as specified in the Order Form (i.e., \"Remote Hands\").\n\n(c) Exclusions. Services shall not include services for problems arising out\nof modification, alteration or addition or attempted modification, alteration or\naddition of hardware undertaken by persons other than Concentric or Concentric's\nauthorized representatives.\n\n(d) Material and Changes. Customer shall comply with all applicable rules\nand regulations, including equipment installation or de-installation, and\nalteration of the Space. Customer shall not make any changes or material\nalterations to the interior or exterior portions of the Space, including any\ncabling or power supplies for its hardware. Customer agrees not to erect any\nsigns or devices to the exterior portion of the Space.\n\n(e) Damage. Customer agrees to reimburse Concentric for all reasonable\nrepair or restoration costs associated with damage or destruction caused by\nCustomer's personnel, Customer's agents, Customer's suppliers\/contractors, or\nCustomer's visitors during the term or as a consequence of Customer's removal of\nits hardware or property installed in the Space.\n\n(f) Insurance. Unless otherwise agreed, Customer shall maintain, at\nCustomer's expense, (i) Comprehensive General Liability Insurance in an amount\nnot less than one million dollars ($1,000,000) per occurrence for bodily injury\nor property damage; (ii) Employer's Liability in an amount not less than one\nmillion dollars ($1,000,000) per occurrence, (iii) Worker's Compensation in an\namount not less than that prescribed by statutory limits and (iv) Property\nInsurance on an \"all risk\" form covering equipment and personal property owned\nor leased by Customer and used or stored on Concentric's premises. Such\nComprehensive General Liability Insurance shall have an additional insured\nendorsement naming Concentric Network Corporation, and shall be primary and\nnon-contributing with any insurance policies carried by Concentric. Customer\nshall also maintain insurance covering the equipment or property owned or leased\nby Customer against loss or physical damage. If so requested, Customer will\nprovide CNC written evidence of insurance coverage consistent with the\nrequirements of this subsection.\n\n(g) Customer Duties. Customer shall document and promptly report all errors\nor malfunctions of the hardware to Concentric. Concentric shall take all steps\nnecessary to carry out procedures for the rectification of errors or\nmalfunctions within a reasonable time. Customer shall maintain a current backup\ncopy of all programs and data. Customer shall properly train its personnel in\nthe use of the hardware.\n\nServerSolutions092298 Confidential Page 3 of 5\n\n 4\n(h) Third-Party Software. For purposes of this Agreement, \"Third-Party\nSoftware\" means those products indicated as such on the Order Form. If Customer\npurchases any Third-Party Software, Customer hereby agrees to be bound by the\nfollowing terms and conditions, and further agrees to enter into all applicable\nagreements, if any, which such third-party requires of Concentric:\n\ni. Customer is granted a non-exclusive, nontransferable right to install\nand use the Third-Party Software in object code form only, accompanying\ndocumentation (\"Documentation\"), and data output of such software solely for\nCustomer's internal use. Such license is not transferable or assignable by\nCustomer, in whole or in part, whether voluntarily or by merger, consolidation\nor sale, or otherwise by operation of law. Customer may make one backup copy of\nthe Third-Party Software for archival purposes only.\n\nii. Title to the Third-Party Software shall be retained by the applicable\nLicensor of such software. No right, title, or interest in the Third-Party\nSoftware or Documentation is granted or conveyed to Customer by implication or\notherwise.\n\niii. Customer acknowledges that the applicable Licensor can only control such\nLicensor's servers and therefore such Licensor cannot guarantee delivery of all\ndata output requested by Customer in any given time period.\n\niv. Except for any backup archival copies permitted herein, Customer may\nnot, and shall not allow others to, copy, modify, translate, disassemble,\ndecompile, reverse engineer or create derivative works of the Third-Party\nSoftware, Documentation or data output of such software.\n\nv. Customer shall not disclose the results of any, benchmark tests of the\nThird-Party Software or data output of such software to any third party; provide\nthird parties access to the Third-Party Software, Documentation or data output;\nsublicense, rent, lease, barter, sell, or otherwise distribute the Third-Party\nSoftware, Documentation or any data output; or use any technical information in\nany way related to or acquired by use of the Third-Party Software for the\nprospective economic advantage of any third-party. Notwithstanding the\nforegoing, Customer may publish and disseminate summaries of the data output\nperformed and transmitted by the Third-Party Software provided that Customer\nattributes the applicable Licensor as the source of the data output or\ninformation on which such summaries are based.\n\nvi. CUSTOMER HEREBY ACCEPTS THE SOFTWARE AND DATA \"AS IS\" WITH NO EXPRESS OR\nIMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION,\nWARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE\nAPPLICABLE LICENSOR NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME\nFOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SOFTWARE, DATA OR ANY OTHER\nINFORMATION, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE\nDELIVERY, INSTALLATION, SUPPORT OR USE OF THE SOFTWARE, INFORMATION OR DATA.\nSUCH LICENSOR DOES NOT WARRANT THE RESULTS OF ANY PROGRAM OR SERVICE OR THAT ANY\nERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL MEET\nCUSTOMER'S REQUIREMENTS OR EXPECTATIONS. SUCH LICENSOR CANNOT GUARANTEE AND DOES\nNOT WARRANT THE ACCURACY OF THE DATA DELIVERED TO CUSTOMER OR THAT DATA IS\nTRANSMITTED TO CUSTOMER WITHOUT INTERRUPTION OR DELAY. Customer asserts and\nacknowledges that prior to execution of this Agreement, Customer had sufficient\nopportunity to evaluate the Third-Party Software, Documentation, and data output\ndelivery of such software to become familiar with their performance and\noperation.\n\n8.2 The following terms and conditions will apply only if Customer has\nfilled out the Managed Server Order Form:\n\n(a) Services, Concentric will provide Customer with the services as\nspecified in the Order Form.\n\n(b) Service Level Agreement. Concentric agrees that its Managed Server\ndowntime will not exceed 4.33 minutes per day, or 30.3 minutes per week, or 130\nminutes per month. If in any calendar month. Customer's server is down for more\nthan 130 minutes (exclusive of (i) scheduled maintenance windows and (ii)\ncustomer enabled faults), Concentric will credit to Customer's account\ntwenty-five percent (25%) of such month's Managed Server fee, as set forth in\nthe Order Form.\n\n8.3 Regulations. Customer shall comply with all applicable operational rules\nand regulations, while on Concentric's premises and while under Concentric\nescort. Concentric may, in its sole discretion, limit Customer's access to a\nreasonable number of authorized Customer employees or designees. Customer shall\nnot interfere with any other customers of Concentric, or such other customers'\nuse of Concentric's facilities.\n\n8.4 Assumption of Risk. Customer hereby assumes any and all risks associated\nwith Customer, its agents (including contractors and sub-contractors) or\nemployees' use of the Space and shall indemnify, defend and hold harmless\nConcentric from any and all claims, liabilities, judgments, causes of action,\ndamages, costs, and expenses (including reasonable attorneys' and experts'\nfees), caused by or arising in connection with such use.\n\n9.0 GENERAL PROVISIONS\n\n9.1 Assignment. This Agreement will be binding upon, and inure to the\nbenefit of, the parties hereto and their respective successors and assigns.\nNotwithstanding the above, neither party may assign its rights or obligations\nunder this Agreement without the prior written consent of the other party. Any\nassignment in violation of this Section shall be null and void. Notwithstanding\nthe above, either party, without approval from the other party, may reassign\nthis Agreement through merger or acquisition where a third party acquires a\nmajority interest in the assets of such party.\n\n9.2 Independent Contractors. The parties will have the status of independent\ncontractors, and nothing in this Agreement should be deemed to place the parties\nin the relationship of employer-employee, principal-agent, or partners or in a\njoint venture.\n\n9.3 Waiver. The failure of either party to enforce at any time any of the\nprovisions of this Agreement, or the failure to require at any time performance\nby the other party of any of the provisions of this Agreement, should in no way\nbe construed to be a present or future waiver of such provisions, nor in any way\naffect the right of either party to enforce each and every such provision\nthereafter. The express waiver by either party of any provision, condition or\nrequirement of this Agreement will not constitute a waiver of any future\nobligation to comply with such provision, condition or requirement.\n\nServerSolutions092298 Confidential Page 4 of 5\n\n\n\n 5\n9.4 Severability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable under present or\nfuture laws, such provision will be struck from the Agreement and the remaining\nprovisions of this Agreement shall remain in full force and effect.\n\n9.5 Indemnity.\n\n(a) Customer shall indemnify, defend and hold harmless Concentric, and\/or,\nif applicable, the Licensor of the Third-Party Software, from any and all\ndamages, liabilities, costs and expenses (including but not limited to\nreasonable attorneys' fees) incurred (a) by Concentric as a result of any\nthreatened or actual suit against Concentric arising out of or in connection\nwith information or content provided, accessed or made available by Customer on\nConcentric's network; and (b) by the applicable Third-Party Software Licensor as\na result of any threatened or actual suit against such Licensor arising from\nCustomer's use, summarization, or dissemination of any data output of such\nsoftware, including, without limitation, trade libel and slander.\n\n(b) Each of Concentric and Customer shall indemnify, defend and hold\nharmless the other, from any and all damages, liabilities, costs and expenses\n(including but not limited to reasonable attorneys' fees) incurred by the other\nparty's gross negligence or deliberate wrongdoing in performance under this\nAgreement.\n\n9.6 Force Majeure. Either party will be excused from any delay or failure to\nperform any obligation under this Agreement if such failure is caused by the\noccurrence of any event beyond the reasonable control of such party, including\nbut not limited to, acts of God, earthquake, labor disputes and strikes, riots\nor war. The obligations and rights of the party so excused shall be extended on\na day-to-day basis for the period of time equal to that of the underlying cause\nof the delay.\n\n9.7 Governing Law. This Agreement will be deemed to have been made in the\nState of California, and the provisions and conditions of this Agreement will be\ngoverned by and interpreted in accordance with the laws of the State of\nCalifornia, without regard to conflict of laws principles thereof.\n\n9.8 Arbitration. Any dispute or claim arising out of or in connection with\nthis Agreement or the performance, breach or termination thereof, will be\nfinally settled by binding arbitration in San Jose, California under the Rules\nof Arbitration of the American Arbitration Association by an arbitrator\nappointed in accordance with those rules. Judgment on the award rendered by the\narbitrators may be entered in any court having jurisdiction thereof.\nNotwithstanding the foregoing, either party may apply to any court of competent\njurisdiction for equitable relief without breach of this arbitration provision.\n\n9.9 Entire Agreement. This Agreement sets forth the entire agreement and\nunderstanding of the parties with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings between the parties, whether\nwritten or oral with respect to the subject matter hereof. No modification of\nthis Agreement shall be binding upon the parties hereto unless evidenced in\nwriting duly signed by authorized representatives of the respective parties\nhereto.\n\n9.10 Notices. Any required notices hereunder shall be given in writing via\nelectronic mail and by certified mail or overnight express delivery service\n(such as DHL) at the address of each party above or as indicated on the\napplicable Order Form, or to such other address as either party may from time to\ntime substitute by written notice. Notice shall be deemed served when delivered\nor, if delivery is not accomplished by reason of some fault of the addressee,\nwhen tendered.\n\nCustomer and Concentric's authorized representatives have read the foregoing and\nall documents incorporated therein and agree and accept such terms.\n\nCUSTOMER REPRESENTATIVE CONCENTRIC NETWORK CORPORATION\n(Corio Corporation)\n\nBy: \/s\/ Signature Illegible By: \/s\/ Signature Illegible\n (Authorized Signature) (Authorized Signature)\n\nPrint Name: Jonathan Lee Print Name: W.C. Etheredge\n ------------------- -------------------------\n\nTitle: CEO Title: Sr. V.P.\n ----------------------- -----------------------------\n\nServerSolutions092298 Confidential Page 5 of 5\n\n\n\n 6\n Exhibit A - Products and Services Quotation\n\n Server Co-location\n Enterprise 5 year\n\n Issue Date: 1\/27\/99\n Expiration Date: 2\/27\/99\n\n\n<\/pre>\n
\n\n Customer Information
\n
\nCorio VAR Torry Da La Cruz Quota ID:
\n Source Email
\n Voice URL
\nScott Albro Fax Voice
\n Fax
\nSite Information
\nSite Location
\nNPA\/NXX
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n\n\nOne Time Set Up Fees List Price Qty Subtotal Discount Total<\/p>\n
\nInstallation
\n————<\/p>\nCo-location Server Setup [*] [*] [*] [*] [*] <\/p>\n
Options Setup
\n————-<\/p>\n
Aquas Bazaar 2.0 [*]
\nBalanced Server – Setup [*]
\nDally System Back-up [*] [*]<\/p>\n
<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\nMonthly Recurring Fees List Price Qty Subtotal Discount Total<\/p>\n
\nMonthly Fees
\n————<\/p>\n500Kbps Bandwidth [*] [*] [*] [*] [*]
\nBurstable Service* 500Kbps – 10Mbps [*]
\nRack space [*] [*] [*] [*] [*]<\/p>\n
Options
\n——-<\/p>\n
Keynote 10 City [*]
\nKeynote 25 City [*]
\nBalanced Server – Local [*]
\nBalanced Server – Global [*] <\/p>\n
[*]
\n<\/c><\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\nOther Fees List Price Discount Net Price<\/p>\n
\nRemote Hands
\n————<\/p>\nService Level 1000 [*]
\nService Level 2000 [*]
\nService Level 3000 [*]
\n [*] [*]
\nAdd 1.5 hours\/month [*] [*]
\nAdd 1.10 hours\/month [*] [*]
\nAdd 1.15 hours\/month [*] [*]
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
These discounts shall apply to the Burstable pricing.<\/p>\n
\n\nOrder Volume Discount Applied
\n
\n$1.5M\/month [*]
\n<\/c><\/s><\/caption>\n<\/table>\n Signature: \/s\/ Signature Illegible
\n Date: 1-29-99<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7174,7212],"corporate_contracts_industries":[9510,9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42165","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-concentric-network-corp","corporate_contracts_companies-corio-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42165","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42165"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42165"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42165"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42165"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}