\n Ex-ColNet-Dl0 10 Mbps Ethernet connection 1 $[***]
\n—————————————————————————————————————
\n Exo-ColNet-U1OSU Collocation backbone setup and Configuration 1 $[***]
\n—————————————————————————————————————
\n Exo-cage-R78 Basic 7×8 cage 1 $[***]
\n—————————————————————————————————————
\n Exo-Cage-R785U 7×8 cage setup 1 $[***]
\n—————————————————————————————————————
\n Exo-cage-R148 Basic 14×8 cage 1 $[***]
\n—————————————————————————————————————
\n Exo-Cage-R148SU 14×8 cage setup 1 $[***]
\n—————————————————————————————————————
\n Exo-Rack-100 Full Rack 1 $[***] $[***]
\n—————————————————————————————————————<\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
[***] Confidential treatment requested for redacted portion. <\/p>\n
10<\/p>\n
ATTACHMENT 2<\/p>\n
TERMS AND CONDITIONS<\/p>\n
1 DEFINITIONS.<\/p>\n
1.1 “Customer Area” means the portion of the Internet Data Centers made
\navailable to Customer hereunder for the placement of Customer Equipment.<\/p>\n
1.2 “Customer’s Business” means Customer’s services and\/or products to be made
\navailable via the Internet in connection with this Agreement.<\/p>\n
1.3 “Customer Equipment” means Customer’s computer hardware, peripheral, and
\nother tangible equipment justified in Attachment 4, as amended from time to
\n ————
\ntime, that Customer places in the Customer Area pursuant to this Agreement. All
\nchanges in Customer Equipment, including but not limited to installation and
\nremoval of Customer Equipment, must be approved by Exodus, which shall not be
\nunreasonably withheld or delayed. As between Exodus and Customer, the parties
\nacknowledge and agree that all Customer Equipment is owned by Customer.<\/p>\n
1.4 “Customer Materials” means all software, data, information contained in
\ndocumentation, and other information and intangibles used by Customer to
\noperate, install, and\/or maintain Customer’s Business through the Customer
\nEquipment or provided to Exodus by Customer for such purposes or otherwise
\npursuant to this Agreement. As between Exodus and Customer, the parties
\nacknowledge and agree that all Customer Materials are owned by Customer.<\/p>\n
1.5 “Installation Date” means the date the Customer Equipment is actually
\ninstalled and approved by Customer as operational.<\/p>\n
1.6 “Internet Data Centers” means the sites owned or leased by Exodus
\ncontaining the Customer Area and equipment used by Exodus to provide Internet
\nData Center Services.<\/p>\n
1.7 “Internet Data Center Services” means the services and other benefits to be
\nprovided by Exodus to Customer under this Agreement, as described in Attachment
\n ———-
\n1, as amended from time to time, or substantially similar services if, in the
\n–
\nreasonable opinion of Exodus, such substantially similar services would provide
\nCustomer with substantially similar benefits.<\/p>\n
1.8 “Representatives” means the individuals identified and authorized by
\nCustomer to have access to the Internet Data Centers and the Customer Area in
\naccordance with this Agreement, whose names are listed in Section 4.4 herein.
\nThe Representatives may be changed by Customer from time to time by written
\nnotice to Exodus.<\/p>\n
1.9 “Rules and Regulations” means the general rules and regulations issued by
\nExodus relating to its provision of Internet Data Center Services to its
\ncustomers, the current version of which is attached as Attachment 3, which may
\n ————
\nbe supplemented by Exodus from time to time, provided, however, that Customer
\nshall not be bound by any changes made by Exodus until Exodus has notified
\nCustomer in writing of any changes and Customer has agreed to be bound thereto.<\/p>\n
11<\/p>\n
2 INTERNET DATA CENTER SERVICES.<\/p>\n
Subject to the terms and conditions of this Agreement, including but not limited
\nto Customer’s timely payment to Exodus of all fees specified in this Agreement
\nand Customer’s compliance with the Rules arid Regulations, Exodus will provide
\nto Customer the Internet Data Center Services.<\/p>\n
3 FEES AND BILLING.<\/p>\n
3.1 Fees. Customer will pay all fees due hereunder according to the Services
\nand Price Form attached as Attachment 1, as amended from time to time by the
\n ————
\nparties.<\/p>\n
3.2 Billing Commencement. Except for any fees required to be paid prior to or
\non the Installation Date (as indicated in the Services and Price Form), billing
\nfor Internet Data Center Services indicated in the initial Services and Price
\nForm shall commence on the Installation Date. In the event that the Services and
\nPrice Form is amended after the Installation Date to include additional Internet
\nData Center Services, billing for such services shall commence on the date
\nExodus first provides such additional Internet Data Center Services to Customer.<\/p>\n
3.3 Billing and Payment Terms. Customer will be billed monthly in advance of
\nthe provision of Internet Data Center Services, and payment of such fees will be
\ndue within thirty (30) days of the date of each Exodus invoice. Customer shall
\nnot be responsible for any fees, costs or any other charges that are not billed
\nby Exodus and received by Customer within ninety (90) days of the date that such
\nfees, costs or charges are incurred. In the event of a disputed invoice, the
\nparties agree to document any dispute settlements in writing. All payments will
\nbe made in U.S. dollars at Exodus’ address set forth in this Agreement or at
\nsuch other address, or to such other bank account, as Exodus may from time to
\ntime indicate by proper notice to Customer. Late payments hereunder will accrue
\ninterest at a rate of one and one-half percent (1 1\/2%) per month, or the
\nhighest rate allowed by applicable law, whichever is lower. If after
\nconsultation with Customer and based on reasonable information Exodus determines
\nthat Customer is not creditworthy or is otherwise not financially secure, Exodus
\nmay, upon written notice to Customer with an adequate opportunity to provide
\nevidence of credit worthiness, modify the payment terms to require full payment
\nbefore the provision of Internet Data Center Services or other assurances to
\nsecure Customer’s payment obligations hereunder.<\/p>\n
3.4 Taxes. All payments required by this Agreement are exclusive of all
\nnational, state, municipal or other governmental excise, sales, value-added,
\nuse, personal property, and occupational taxes, excises, withholding taxes and
\nobligations and other levies now in force or enacted in the future, all of which
\nCustomer will be responsible for and will pay in full, except for taxes based on
\nExodus’ net income.<\/p>\n
4 CUSTOMER’S OBLIGATIONS.<\/p>\n
4.1 Compliance with Law. Customer agrees that in connection with the exercise
\nof its rights and performance of its obligations under this Agreement, Customer
\nwill comply in all material respects with all applicable laws and regulations.
\nCustomer acknowledges that Exodus exercises no control whatsoever over the
\ncontent of the information passing through its Internet Data Centers, and that,
\nas between Exodus and Customer, it is the sole responsibility of Customer to
\nensure that the information it transmits and receives complies with all<\/p>\n
12<\/p>\n
applicable laws and regulations.<\/p>\n
4.2 Compliance with Rules and Regulations. Customer agrees that it will comply
\nat all times with Exodus’ Rules and Regulations in existence from time to time
\nand of which it has been notified.<\/p>\n
4.3 Customer’s Costs. CUSTOMER AGREES THAT IT WILL BE SOLELY RESPONSIBLE, AND
\nAT EXODUS’ REQUEST WILL REIMBURSE EXODUS, FOR ALL COST AND EXPENSES (OTHER THAN
\nTHOSE INCLUDED AS PART OF THE INTERNET DATA CENTER SERVICES AND EXCEPT AS
\nOTHERWISE EXPRESSLY PROVIDED HEREIN) IT INCURS IN CONNECTION WITH THIS
\nAGREEMENT, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 3.3. EXODUS SHALL
\nNOTIFY CUSTOMER WHEN ANY SUCH EXPENSES ARE EXPECTED TO BE INCURRED. EXODUS WILL
\nBE SOLELY LIABLE FOR COSTS INCURRED BY EXODUS AT EXODUS’ INITIATION THAT ARE NOT
\nPRE-APPROVED BY CUSTOMER.<\/p>\n
4.4 Access and Security. CUSTOMER WILL BE FULLY RESPONSIBLE FOR ANY CHARGES,
\nCOSTS, EXPENSES, AND THIRD PARTY CLAIMS THAT MAY RESULT FROM ITS USE OF, OR
\nACCESS TO, THE INTERNET DATA CENTERS AND\/OR CUSTOMER AREA, INCLUDING BUT NOT
\nLIMITED TO ANY UNAUTHORIZED USE OF ANY ACCESS DEVICES PROVIDED TO CUSTOMER BY
\nEXODUS HEREUNDER, EXCEPT RESULTING DIRECTLY FROM EXODUS’ OR ITS EMPLOYEES’
\nNEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT WITH THE ADVANCED WRITTEN CONSENT OF
\nEXODUS, CUSTOMER’S ACCESS TO THE INTERNET DATA CENTERS WILL BE LIMITED SOLELY TO
\nITS REPRESENTATIVES LISTED ON THE REGISTRATION FORM ATTACHED HERETO AS
\nATTACHMENT 5, AS AMENDED FROM TIME TO TIME.<\/p>\n
4.5 No Competitive Services. Customer may not at any time permit any Internet
\nData Center Services to be utilized for the provision of any services that
\ncompete with any Exodus services, without Exodus’ prior written consent. Exodus
\nagrees that none of the services currently provided by Customer competes with
\nany Exodus services.<\/p>\n
4.6 Insurance.<\/p>\n
(a) Minimum Levels. Each party will keep in force and effect during the
\nterm of this Agreement: (i) comprehensive general liability insurance in an
\namount not less than $1 million per occurrence for bodily injury and property
\ndamage; (ii) employer’s liability insurance in any amount not less than $1
\nmillion per occurrence; and (iii) workers’ compensation insurance in any amount
\nnot less than that required by applicable law. Each party also agrees that it
\nand its agents (including contractors and subcontractors) will maintain other
\ninsurance at levels no less than those required by applicable law and customary
\nin each party’s and its agents’ industries.<\/p>\n
(b) Certificates of Insurance. Prior to installation of any Customer
\nEquipment in the Customer Area, or access to the Internet Data Centers, Customer
\nwill furnish Exodus with certificates of insurance which evidence the minimum
\nlevels of insurance set forth above.<\/p>\n
(c) Naming the other Party as an Additional Insured. Each party agrees
\nthat prior to the installation of any Customer Equipment, it will cause its
\ninsurance provider(s) to name the other party as an additional insured and
\nnotify the other party in writing of the effective date thereof.<\/p>\n
13<\/p>\n
5 REPRESENTATIONS AND WARRANTIES.<\/p>\n
5.1 Warranties by Customer.<\/p>\n
(a) Customer Equipment and Customer Materials. Customer represents and
\nwarrants that it owns or has the legal right and authority, and will continue to
\nown or maintain the legal right and authority during the term of this Agreement,
\nto place and use the Customer Equipment not purchased from Exodus as
\ncontemplated by this Agreement, and to use, modify, transmit, and distribute the
\nCustomer Materials without infringing, misappropriating, or otherwise violating
\nany intellectual property rights of any third party. Customer further represents
\nand warrants that its placement, arrangement, and use of the Customer Equipment
\nnot purchased from Exodus in the Internet Data Centers complies with the
\nCustomer Equipment and Customer Materials Manufacturer’s environmental and other
\nspecifications.<\/p>\n
(b) Rules and Regulations. Intentionally omitted.<\/p>\n
(c) Customer’s Business. Customer is familiar with the laws and
\nregulations applicable to Customer’s Business. Customer represents and warrants
\nthat Customer’s Business does not as of the Installation Date, and will not
\nduring the term of this Agreement, contain or transmit any material that would
\nviolate any applicable local state, national, foreign or international law. In
\nthe event of any breach, or reasonably anticipated breach, of such warranty, in
\naddition to any other remedies available at law or in equity, Exodus will have
\nthe right after notice to Customer with an adequate opportunity to cure based on
\nthe specific circumstances, in Exodus’ sole discretion: (i) to terminate or
\nrestrict access to any such materials in any manner, and\/or (ii) to suspend any
\nrelated Internet Data Center Services provided Exodus takes the minimal
\naction(s) necessary to address the specific violation.<\/p>\n
5.2 Warranties and Disclaimers by Exodus.<\/p>\n
(a) Service Level Warranty. In the event Customer is unable to transmit
\nand receive information from Exodus’ Internet Data Centers to other portions of
\nthe Internet and Customer notifies Exodus immediately of such event and Exodus
\ndetermines in its reasonable judgment that such inability was caused by Exodus’
\nfailure to provide Internet Data Center Services for reasons within Exodus’
\nreasonable control and not as a result of any actions or inactions of Customer
\nor any third parties, Exodus will, upon Customer’s request, credit Customer’s
\naccount as follows: If Exodus failed to provide the Internet Data Center
\nServices for (i) more than two (2) consecutive hours in a calendar month, Exodus
\nwill credit Customer’s account the pro-rata connectivity charges for one (1) day
\nof service; and (ii) more than eight (8) consecutive hours in a calendar month,
\nExodus will credit Customer’s account the prorata connectivity charges for one
\n(1) week of service. Exodus’ scheduled maintenance of the Internet Data Centers
\nand Internet Data Center Services, as described in the Rules and Regulations,
\nshall not be deemed to be a failure of Exodus to provide Internet Data Center
\nServices. THIS SECTION 5.2(A) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR
\nANY FAILURE BY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.<\/p>\n
(b) Internet Data Center Services. Exodus represents and warrants that it
\nhas the legal right and authority, and will continue to maintain the legal right
\nand authority during the term of this Agreement, <\/p>\n
14<\/p>\n
to provide the Internet Data Center Services to Customer as contemplated by this
\nAgreement, and without infringing, misappropriating, or otherwise violating any
\nintellectual property rights of any third party. Exodus further represents and
\nwarrants that its provision of Internet Data Center Services complies with the
\nequipment Manufacturer’s environmental and other specifications.<\/p>\n
(c) Exodus represents that it exercises no control over the content of the
\ninformation passing through its Internet Data Centers.<\/p>\n
(d) Exodus represents and warrants that, with respect to Customer
\nEquipment and Customer Materials sold or otherwise provided to Customer by
\nExodus and based solely on Exodus’ knowledge and reliance in part on any
\nmanufacturer’s and\/or licensor’s express representations and warranties
\nregarding such Customer Materials,<\/p>\n
(i) Customer owns or has the legal right and authority to place and use
\nthe Customer Equipment as contemplated by this Agreement, and to use, modify,
\ntransmit, and distribute the Customer Materials without infringing,
\nmisappropriating, or otherwise violating any intellectual property rights of any
\nthird party; and<\/p>\n
(ii) The placement, arrangement, and use of the Customer Equipment and
\nCustomer Materials in the Internet Data Centers, as permitted by Exodus,
\ncomplies with the Customer Equipment and Customer Materials Manufacturer’s
\nenvironmental and other specifications.<\/p>\n
(e) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN
\nSUBSECTIONS (A), (B), (C) AND (D) ABOVE, ALL SERVICES PERFORMED AND PRODUCTS
\nPROVIDED AND SPACE MADE AVAILABLE BY EXODUS HEREUNDER ARE PERFORMED, PROVIDED,
\nAND MADE AVAILABLE ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE INTERNET DATA
\nCENTERS IS AT ITS OWN RISK. EXODUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND
\nALL OTHER EXPRESS AND\/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
\nNONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR
\nTRADE PRACTICE. EXODUS DOES NOT WARRANT THAT THE INTERNET DATA CENTER SERVICES
\nPROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.<\/p>\n
(f) Disclaimer of Actions Caused by and\/or Under the Control of Third
\nParties. WHILE EXODUS’ INTERNET DATA CENTER SERVICES PROVIDE CUSTOMERS WITH
\nCONNECTIVITY TO THE INTERNET, EXODUS DOES NOT AND CANNOT CONTROL THE FLOW OF
\nINFORMATION TO OR FROM EXODUS’ INTERNET DATA CENTERS TO OTHER PORTIONS OF THE
\nINTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET
\nSERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR
\nINACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH EXODUS’
\nCUSTOMERS’ CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR
\nDISRUPTED. ALTHOUGH EXODUS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE
\nACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, EXODUS CANNOT
\nGUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, EXODUS DISCLAIMS ANY AND ALL
\nLIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.<\/p>\n
15<\/p>\n
6 LIMITATIONS OF LIABILITY.<\/p>\n
6.1 Personal Injury. EACH REPRESENTATIVE, AND ANY OTHER PERSONS, VISITING THE
\nINTERNET DATA CENTERS DOES SO AT ITS OWN RISK AND EXODUS ASSUMES NO LIABILITY
\nWHATSOEVER FOR ANY HARM TO SUCH PERSONS RESULTING FROM ANY CAUSE OTHER THAN
\nEXODUS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN PERSONAL INJURY TO
\nSUCH PERSONS DURING SUCH A VISIT.<\/p>\n
6.2 Damage to Customer Equipment or Materials.<\/p>\n
(a) CERTAIN CUSTOMER EQUIPMENT, INCLUDING BUT NOT LIMITED TO CUSTOMER
\nEQUIPMENT LOCATED ON RACKS, MAY BE DIRECTLY ACCESSIBLE BY OTHER CUSTOMERS.
\nEXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY CUSTOMER
\nEQUIPMENT RESULTING FROM ANY CAUSE OTHER THAN EXODUS’ NEGLIGENCE OR WILLFUL
\nMISCONDUCT. TO THE EXTENT EXODUS IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, THE
\nCUSTOMER EQUIPMENT FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY TO THE
\nTHEN-CURRENT VALUE OF THE CUSTOMER EQUIPMENT.<\/p>\n
(b) EXODUS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY
\nCUSTOMER MATERIALS RESULTING FROM ANY CAUSE WHATSOEVER, EXCEPT AS A RESULT OF
\nEXODUS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.<\/p>\n
6.3 Exclusions. EXCEPT AS SPECIFIED IN SECTIONS 6.1 AND 6.2, IN NO EVENT WILL
\nEXODUS BE LIABLE TO CUSTOMER, ANY REPRESENTATIVE, OR ANY THIRD PARTY FOR ANY
\nCLAIMS ARISING OUT OF OR RELATED TO THE CUSTOMER EQUIPMENT, THE CUSTOMER
\nMATERIALS, THE CUSTOMER’S BUSINESS, OR OTHERWISE.<\/p>\n
6.4 No Liability for Consequential Damages. NOTWITHSTANDING ANYTHING TO THE
\nCONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EXODUS BE LIABLE FOR ANY LOST
\nADVERTISING OR OTHER REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF
\nTECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL
\nDAMAGES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR OF ANY
\nCUSTOMER EQUIPMENT OR CUSTOMER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF
\nSUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
\nPRODUCTS LIABILITY OR OTHERWISE.<\/p>\n
6.5 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
\nAGREEMENT, EXODUS’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN
\nCONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY
\nCUSTOMER TO EXODUS HEREUNDER.<\/p>\n
6.6 Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges
\nthat Exodus has set its prices and entered into this Agreement in reliance upon
\nthe limitations of liability and the disclaimers of warranties and damages set
\nforth herein, and that the same form an essential bask of the bargain between
\nthe parties. The parties agree that the limitations and exclusions of liability
\nand disclaimers specified in this Agreement will survive and apply even if found
\nto have failed of their essential purpose.<\/p>\n
16<\/p>\n
7 INDEMNIFICATION.<\/p>\n
7.1 Customer’s Indemnification of Exodus.<\/p>\n
(a) Customer will indemnity and hold Exodus, its affiliates, shareholders,
\nofficers, directors, employees, agents, representatives, and customers harmless
\nfrom and against any and all costs, liabilities, losses, and expenses
\n(including, but not limited to, reasonable attorneys’ fees arid fees of experts)
\narising out of any claim, suit, action or proceeding (each, an “Action”), and
\nCustomer will pay any settlement reached or judgment entered thereon against
\nExodus or such third party, to the extent such Action arises from an allegation
\nthat any of the following has occurred or will occur:<\/p>\n
(i) with respect to the Customer’s Business, Customer Materials, or
\nCustomer Equipment: (A) infringement of any intellectual property rights; (B)
\nmisappropriation of any intellectual property rights; (C) defamation, libel,
\nslander, obscenity, pornography, or violation of the rights of privacy or
\npublicity; or (D) flaming, spamming, or any other offensive, harassing or
\nillegal conduct or violation of the Rules and Regulations; or<\/p>\n
(ii) any damage or destruction to the Customer Area, the Internet Data
\nCenters or the equipment of Exodus or any other customer by Customer or
\nRepresentative(s) or Customer’s designees resulting from Customer’s or
\nCustomer’s Representative’s or Invitee’s negligence or willful misconduct; or<\/p>\n
(iii) any other damage arising from the Customer Equipment, Customer
\nMaterials, or Customer’s Business, except to the extent such damage is caused by
\nExodus, its employees or other customers.<\/p>\n
(b) Exodus will give Customer prompt written notice of the existence of
\nany such Action of which Exodus becomes aware, and an opportunity to participate
\nin the defense thereof at Customer’s expense.<\/p>\n
7.2 Exodus’ Indemnification of Customer.<\/p>\n
(a) Exodus will indemnify and hold Customer, its affiliates, shareholders,
\nofficers, directors, employees, agents, and Representatives harmless from and
\nagainst any and all reasonable costs, liabilities, losses, and expenses
\n(including, but not limited to, reasonable attorneys’ fees) arising out of (i)
\nthe infringement of any third party registered U.S. copyright or issued U.S.
\npatent resulting from the provision of Internet Data Center Services pursuant to
\nthis Agreement and (ii) personal injury to Customer’s Representatives from
\nExodus’s negligence or willful misconduct.<\/p>\n
(b) Customer will give Exodus prompt written notice upon of the existence
\nof any such event of which it becomes aware, and an opportunity to participate
\nin the defense thereof at Exodus’ expense.<\/p>\n
8 TERM AND TERMINATION.<\/p>\n
8.1 Term. This Agreement will be effective for a period of one (1) year from
\nthe Installation Date, unless earlier terminated according to the provisions of
\nthis Section 8. The Agreement will automatically renew for additional terms of
\none (1) year each.<\/p>\n
8.2 Termination.<\/p>\n
(a) For Convenience. Either party may terminate this Agreement for
\nconvenience at any time effective after the first (1st) anniversary of the
\nInstallation Date by providing ninety (90) days’ prior written <\/p>\n
17<\/p>\n
notice to the other party.<\/p>\n
(b) For Cause. Either party will have the right to terminate this
\nAgreement if: (i) the other party materially breaches any term or condition of
\nthis Agreement, including but not limited to the payment of fees, and fails to
\ncure such breach within thirty (30) days after written notice of the same; (ii)
\nthe other party becomes the subject of a voluntary petition in bankruptcy or any
\nvoluntary proceeding relating to insolvency, receivership, liquidation, or
\ncomposition for the benefit of creditors; or (iii) the other party becomes the
\nsubject of an involuntary petition in bankruptcy or any involuntary proceeding
\nrelating to insolvency, receivership, liquidation, or composition for the
\nbenefit of creditors, if such petition or proceeding is not dismissed within
\nsixty (60) days of filing.<\/p>\n
8.3 No Liability for Termination. Neither party will be liable to the other for
\nany termination or expiration of this Agreement in accordance with its terms.<\/p>\n
8.4 Effect of Termination. Upon the effective date of expiration or termination
\nof this Agreement:<\/p>\n
(a) Exodus will immediately cease providing the Internet Data Center
\nServices;<\/p>\n
(b) any and all payment obligations of Customer which have accrued as of
\nsuch expiration or termination will become due immediately;<\/p>\n
(c) within thirty (30) days after such expiration or termination, each
\nparty will return all Confidential Information of the other party in its
\npossession at the time of expiration or termination and will not make or retain
\nany copies of such Confidential Information except as required to comply with
\nany applicable legal, accounting, or administrative record keeping requirement;
\nand<\/p>\n
(d) Customer will remove from the Internet Data Centers all Customer
\nEquipment, Customer Materials, and any of its other property within the Internet
\nData Centers within five (5) business days of such expiration or termination and
\nreturn the Customer Area to Exodus in the same condition as it was on the
\nInstallation Date, normal wear and tear excepted. If Customer does not remove
\nsuch property within such five-day period, Exodus will have the option to (i)
\nmove any and all such property to secure storage and charge Customer for the
\ncost of such removal and storage, and\/or (ii) after a final notice to Customer,
\nliquidate the property in any reasonable manner.<\/p>\n
(e) Notwithstanding the foregoing, Customer shall be entitled to retain
\ncontrol over the route of all IP addresses used by Customer during the preceding
\nninety (90) days for thirty (30) days following the termination of this
\nAgreement.<\/p>\n
8.5 Survival. The following provisions will survive any expiration or
\ntermination of the Agreement: Sections 3, 4, 5, 6, 7, 8, 9, and 10.<\/p>\n
9 CONFIDENTIAL INFORMATION.<\/p>\n
9.1 Confidential Information. Each party acknowledges that it will have access
\nto certain confidential information and materials of the other party concerning
\nthe other party’s business, plans, customers, technology, and products,
\nincluding the terms and conditions of this Agreement (“Confidential
\nInformation”). Confidential Information will include, but not be limited to,
\neach party’s proprietary software and customer information. Each party agrees<\/p>\n
18<\/p>\n
that it will not use in any way, for its own account or the account of any third
\nparty, except as expressly permitted by this Agreement, nor disclose to any
\nthird party (except as required by law or to that party’\/s attorneys,
\naccountants and other advisors as reasonably necessary), any of the other
\nparty’s Confidential Information and will take reasonable precautions to protect
\nthe confidentiality of such information.<\/p>\n
9.2 Exceptions. Information will not be deemed Confidential Information
\nhereunder if such information: (i) is known to the receiving party prior to
\nreceipt from the disclosing party directly or indirectly from a source other
\nthan one having an obligation of confidentiality to the disclosing party; (ii)
\nbecomes known (independently of disclosure by the disclosing party) to the
\nreceiving party directly or indirectly from a source other than one having an
\nobligation of confidentiality to the disclosing party; (iii) becomes publicly
\nknown or otherwise ceases to be secret or confidential, except through a breach
\nof this Agreement by the receiving party; or (iv) is independently developed by
\nthe receiving party.<\/p>\n
9.3 Remedies. Notwithstanding anything to the contrary in this Agreement, in
\nthe event of any intentional breach of this Section 9, the non-breaching party
\nwill be entitled to any remedies available at law and\/or in equity.<\/p>\n
10 GENERAL PROVISIONS.<\/p>\n
10.1 Governing Law. This Agreement is made under and will be governed by and
\nconstrued in accordance with the laws of the State of California, United States
\nof America (except that body of law controlling conflicts of law) and
\nspecifically excluding from application to this Agreement that law known as the
\nUnited Nations Convention on the International Sale of Goods.<\/p>\n
10.2 Arbitration. The parties will in good faith attempt to resolve any disputes
\nrelating to the terms, interpretation or performance of this Agreement (other
\nthan claims for preliminary injunctive relief or other prejudgment remedies)
\nthrough mutual consultation before resorting to any other dispute resolution
\nmechanisms. If mutual consultation fails to resolve any dispute, such dispute
\nwill be resolved at the request of either party through binding arbitration.
\nArbitration will be conducted in Santa Clara County, California, under the rules
\nand procedures of the Judicial Arbitration and Mediation Society (“JAMS”). The
\nparties will request that JAMS appoint a single arbitrator possessing knowledge
\nof online services agreements; however the arbitration will proceed even if such
\na person is unavailable.<\/p>\n
10.3 Force Majeure. Except for the obligation to pay money, neither party will
\nbe liable for any failure or delay in its performance under this Agreement due
\nto any cause beyond its reasonable control, including act of war, acts of God,
\nearthquake, flood, embargo, riot, sabotage, labor shortage or dispute,
\ngovernmental act or failure of the Internet, provided that the delayed party:
\n(a) gives the other party prompt notice of such cause, and (b) uses its
\nreasonable commercial efforts to correct promptly such failure or delay in
\nperformance.<\/p>\n
10.4 No Lease. This Agreement is a services agreement and is not intended to and
\nwill not constitute a lease of any real or personal property. Customer
\nacknowledges and agrees that it has been granted only a license to occupy the
\nCustomer Space and use the Internet Data Centers in accordance <\/p>\n
19<\/p>\n
with this Agreement, Customer has not been granted any real property interest in
\nthe Customer Space or Internet Data Centers, and Customer has no rights as a
\ntenant or otherwise under any real property or landlord\/tenant laws,
\nregulations, or ordinances. For good cause (eg, violation or threatened
\nviolation of applicable law or Rules and Regulations), Exodus may suspend the
\nright of any Representative or other Customer personnel to visit the Internet
\nData Centers.<\/p>\n
10.5 Inherently Dangerous Applications. The Internet Data Center are not
\nintended nor provided for use in connection with, and Customer will not use them
\nfor, any nuclear, aviation, mass transit, life-support, or any other inherently
\ndangerous applications or services, the failure of which could result in death,
\npersonal injury, catastrophic damage, or mass destruction.<\/p>\n
10.6 Marketing. Customer agrees that Exodus may refer to Customer by trade name
\nand trademark, and may briefly describe Customer’s Business, in Exodus’s
\nmarketing materials and web site. Customer hereby grants Exodus a license to use
\nany Customer trade names, trademarks or service marks solely in connection with
\nthe rights granted to Exodus pursuant to this Section 10.6.<\/p>\n
10.7 Government Regulations. Customer will not export, re-export, transfer, or
\nmake available, whether directly or indirectly, any regulated item or
\ninformation to anyone outside the U.S. in connection with this Agreement without
\nfirst complying with all export control laws and regulations which may be
\nimposed by the U.S. Government and any country or organization of nations within
\nwhose jurisdiction Customer operates or does business.<\/p>\n
10.8 Severability. In the event any provision of this Agreement is held by a
\ntribunal of competent jurisdiction to be contrary to the law, the remaining
\nprovisions of this Agreement will remain in full force and effect.<\/p>\n
10.9 Waiver. The waiver of any breach or default of this Agreement will not
\nconstitute a waiver of any subsequent breach or default, and will not act to
\namend or negate the rights of the waiving party.<\/p>\n
10.10 Assignment. Neither party may assign its rights or delegate its duties
\nunder this Agreement either in whole or in part without the prior written
\nconsent of the other party, except that this Agreement may be assigned in whole
\nas part of a corporate reorganization, consolidation, merger, or sale of
\nsubstantially all of its assets, provided that it has notified such other party
\nwithin thirty (30) days subsequent to the effective date of such event. Any
\nattempted assignment or delegation without such consent will be void. This
\nAgreement will bind and inure to the benefit of each party’s successors and
\npermitted assigns.<\/p>\n
10.11 Notices. Any notice or communication required or permitted to be given
\nhereunder may be delivered by hand, mailed by registered or certified mail,
\nreturn receipt requested, postage prepaid, or sent by confirmed facsimile, in
\neach case to the address of the receiving party indicated on the signature page
\nhereof, or at such other address as may hereafter be furnished in writing by
\neither party hereto to the other. Such notice will be deemed to have been given
\nas of the date it is delivered, or confirmed by facsimile, whichever is earlier.<\/p>\n
10.12 Counterparts. This Agreement may be executed in two or more counterparts,
\neach of which will be deemed an original, <\/p>\n
20<\/p>\n
but all of which together shall constitute one and the same instrument.<\/p>\n
10.13 Relationship of Parties. Exodus and Customer are independent contractors
\nand this Agreement will not establish any relationship of partnership, joint
\nventure, employment, franchise or agency between Exodus and Customer. Neither
\nExodus nor Customer have the power to bind the other or incur obligations on the
\nother’s behalf without the other’s prior written consent, except as otherwise
\nexpressly provided herein.<\/p>\n
10.14 Priority. The following order of precedence will govern any conflict or
\ndiscrepancy between any portions of this Agreement:<\/p>\n
(1) Attachment 6.<\/p>\n
(2) Attachment 2.<\/p>\n
(3) Attachment 3.<\/p>\n
(4) Signature Page.<\/p>\n
(5) Attachment 4.<\/p>\n
(6) Subsequent Attachment (s) 1.<\/p>\n
(7) Initial Attachment 1.<\/p>\n
(8) Attachment 5.<\/p>\n
21<\/p>\n
ATTACHMENT 3<\/p>\n
RULES AND REGULATIONS<\/p>\n
Each Exodus Customer and its Representatives, employees, contractors,
\ncustomers, agents and users of Customer’s online facilities are subject to these
\nRules and Regulations in connection with their use of Exodus’ Internet Data
\nCenter Services.<\/p>\n
ACCESS TO INTERNET DATA CENTERS<\/p>\n
. Only those individuals identified by Customer as its Representatives may
\n access the Internet Data Centers. Customer may not allow any unauthorized
\n persons to access the Internet Data Centers.<\/p>\n
. Customer will notify Exodus in writing of any change in Customer’s
\n Representatives.<\/p>\n
. Customer agrees to adhere at all times to security measures that have been
\n established by Exodus to protect the Internet Data Centers, its equipment
\n and its Customers’ equipment.<\/p>\n
USE OF INTERNET DATA CENTER FACILITY<\/p>\n
Customer must keep the Customer Area clean at all times. Customer may
\nnot store any paper products or materials of any kind in the Customer Area
\n(other than equipment manuals).<\/p>\n
Customer may not bring, or make use of, any of the following into the
\nFacility:<\/p>\n
. Food or drink. . Alcohol or other intoxicants.
\n. Tobacco products. . Electro-magnetic devices.
\n. Explosives. . Radioactive materials.
\n. Weapons. . Photographic or recording
\n. Chemicals. equipment of any kind
\n. Illegal drugs. (other than tape back-up
\n equipment).<\/p>\n
EQUIPMENT AND CONNECTIONS<\/p>\n
. All Customer Equipment must be clearly labeled with Customer’s name (or
\n code name provided to Exodus) and individual component identification.<\/p>\n
. Customers may not connect or disconnect any Customer Equipment or other
\n equipment except as specifically pre-approved by an authorized employee of
\n Exodus, at least 48 hours in advance of proposed installation, except as
\n otherwise approved by Exodus.<\/p>\n
. All connections to and from Customer Equipment must be clearly labeled.<\/p>\n
. Customer Equipment must be configured and run at all times in compliance
\n with the manufacturer’s specifications, including clearance requirements.<\/p>\n
. Exodus makes available at its Data Centers certain equipment for the
\n temporary use by Customers at the Internet Data Centers. This equipment is
\n provided on an “AS IS” basis without any warranties of any kind. Customer
\n may borrow and\/or use any Exodus property or equipment, at its own risk,
\n after receiving permission from Exodus.<\/p>\n
22<\/p>\n
SCHEDULED MAINTENANCE<\/p>\n
Periodically, Exodus will conduct routine scheduled maintenance of its Internet
\nData Centers and Internet Data Center Services pursuant to a schedule posted on
\nExodus’ World Wide Web site (http:\/\/www.exodus.net\/exo maintenance frame.html).
\nDuring such time, Customer’s Equipment may be unable to transmit and receive
\ndata and Customer may be unable to access its Equipment. Customer agrees to
\ncooperate with Exodus during the scheduled maintenance so that Exodus may keep
\nsuch period or time to a minimum.<\/p>\n
MISCONDUCT<\/p>\n
Customer and its Representatives may not:<\/p>\n
. Misuse or abuse any Exodus property or equipment;<\/p>\n
. Make any unauthorized use or interfere with any property or equipment of
\n any other Exodus customer;<\/p>\n
. Harass any individual, including Exodus personnel and representatives of
\n other customers of Exodus; or<\/p>\n
. Engage in any activity that is in violation of the law, or aid in criminal
\n activity while on Exodus property or in connection with the Internet Data
\n Center Services.<\/p>\n
ONLINE CONDUCT<\/p>\n
Customer will not, and will not permit any persons using Customer’s
\nonline facilities (including but not limited to Customer’s Web site(s) and
\ntransmission capabilities), to do any of the following:<\/p>\n
. Send Spam (unsolicited commercial messages or communications in any form)<\/p>\n
. Infringe or misappropriate the intellectual property rights of others. This
\n includes posting copyrighted materials without appropriate permission,
\n using trademarks of others without appropriate permission or attribution,
\n and posting or distributing trade secret information of others in violation
\n of a duty of confidentiality.<\/p>\n
. Violate the personal privacy rights of others. This includes using and
\n distributing information about Internet users without their permission,
\n except as permitted by applicable law.<\/p>\n
. Send, post or host harassing, abusive, libelous or obscene materials or
\n take any similar actions.<\/p>\n
. Intentionally omit, delete, forge or misrepresent transmission information,
\n including headers, return addressing information and IP addressees or take
\n any other actions intended to cloak Customer’s or its users’ identity or
\n contact information.<\/p>\n
. Use the online facilities for any illegal purposes.<\/p>\n
. Assist or permit any persons in engaging in any of the activities described
\n above. If Customer becomes aware of any such activities, Customer will take
\n all actions necessary to stop such activities immediately, including, if
\n necessary, terminating Customer’s user’s access to Customer’s online
\n facilities.<\/p>\n
23<\/p>\n
MODIFICATION OF RULES AND REGULATIONS<\/p>\n
Exodus reserves the right to change these Rules and Regulations at any
\ntime. Customer is responsible for regularly reviewing these Rules and
\nRegulations. Continued use of the Internet Data Center Services following any
\nsuch changes shall constitute the Customer’s acceptance of such changes.<\/p>\n
24<\/p>\n
ATTACHMENT 4<\/p>\n
CUSTOMER EQUIPMENT<\/p>\n
\n\nItem Date In\/Out Customer Initials Exodus Initials
\n—- ———– —————– ————— <\/p>\n
\n
\n
\n
\n1. In:
\n Out:
\n2. In:
\n Out:
\n3. In:
\n Out:
\n4. In:
\n Out:
\n5. In:
\n Out:
\n6. In:
\n Out:
\n7. In:
\n Out:
\n8. In:
\n Out:
\n9. In:
\n Out:
\n10. In:
\n Out:
\n11. In:
\n Out:
\n12. In:
\n Out:
\n13. In:
\n Out:
\n14. In:
\n Out:<\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
25<\/p>\n
ATTACHMENT 5<\/p>\n
REGISTRATION FORM<\/p>\n
COMPANY INFORMATION
\n——————————————————————————–
\nCompany Name: Date:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–<\/p>\n
BILLING INFORMATION
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nPurchase Order No.:
\n——————————————————————————–<\/p>\n
INSTALLATION SITE
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nContact Hours and Notes:
\n——————————————————————————–<\/p>\n
FIRST TECHNICAL CONTACT
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nContact Hours and Notes:
\n——————————————————————————–<\/p>\n
SECOND TECHNICAL CONTACT
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nContact Hours and Notes:
\n——————————————————————————–<\/p>\n
26<\/p>\n
THIRD TECHNICAL CONTACT
\n——————————————————————————–
\nContact Name: Title: Email:
\n——————————————————————————–
\nPhone: Fax: Pager:
\n——————————————————————————–
\nAddress:
\n——————————————————————————–
\nCity: State: Zip:
\n——————————————————————————–
\nContact Hours and Notes:
\n——————————————————————————–<\/p>\n
TECHNICAL INFORMATION
\n——————————————————————————–
\nNumber of Host Computers or
\nIP Subnet Address space required: (1)<\/p>\n
——————————————————————————–
\nCurrently assigned IP Subnet
\nAddress or Not Applicable:<\/p>\n
——————————————————————————–
\nCircuit Demarcation
\nInformation: (2)<\/p>\n
——————————————————————————–<\/p>\n
Exists (Yes or No) Exodus DNS Support
\n (Primary or Secondary)
\n——————————————————————————–
\nFirst Choice Domain Name:
\n——————————————————————————–
\nSecond Choice Domain Name:
\n——————————————————————————–
\nCurrent Internet Service Provider:
\n——————————————————————————–<\/p>\n
Notes:<\/p>\n
1. This information is used to determine the number of subnets and IP address
\n space that will be required.<\/p>\n
2. A network diagram is required if the number of host computers or requested
\n address space is greater than 254.<\/p>\n
3. Required for point to point circuits, i.e., T1.
\n For example: Room 105, Jack 34.<\/p>\n
27<\/p>\n
ATTACHMENT 6<\/p>\n
NEGOTIATED CHANGES<\/p>\n
A. The following replaces and supersedes Sect on 5.2(a) of Attachment 2 (Terms
\n and Conditions):<\/p>\n
5.2(a) Efforts to Avoid Customer Service Interruption or Disruption; Remedies<\/p>\n
(i) Establishment of a Problem Resolution Committee. The parties
\nacknowledge and agree that maintaining Internet connectivity at the levels
\ncontracted for by Customer pursuant to the internet Data Center Services is
\ncritical to Customer’s business. The parties also recognize that the individual
\nand joint efforts of both parties are necessary to ensure that such levels are
\nmaintained and any problems relating thereto are addressed and resolved
\nexpeditiously. Accordingly, Exodus and Customer hereby establish a Problem
\nResolution Committee (the “Committee”) comprised of two representatives each
\nfrom Exodus and Customer. Upon execution of this Agreement, each party will
\nprovide the other with the names and contact information of its representatives
\nto the Committee. The Committee shall meet periodically at times and places
\nmutually agreed to by both parties to address and resolve any anticipated
\nproblems or other issues that could adversely impact Customer’s ability to
\nreceive the Internet Data Center Services, including but not limited to steps
\nbeing taken by Exodus to ensure that Exodus can provide Internet Data Center
\nServices at future levels anticipated by Customer. At least one representative
\nfrom each party also shall meet (either in person or by telephone) immediately
\nupon the occurrence of any event that prevents Customer from receiving Internet
\nData Center Services. Exodus and Customer each agrees to take all reasonable
\nactions, including immediately notifying the other party of any actual or
\npotential problems relating to the Internet Data Center Services, to resolve any
\nactual problems and avoid any potential problems. Exodus will not charge
\nCustomer any additional fees for performing its obligations under this Section
\n5.2(a)(i) unless the problems to be resolved result from Customer’s negligence
\nand require significant time commitments from Exodus.<\/p>\n
(ii) Packet Loss and Packet Collision. To prevent packet loss and packet
\ncollision, Exodus to provide to Customer, in connection with every 100 Mbps of
\nsustained bandwidth or fraction thereof utilized by Customer, Exodus will
\nprovide two (2) connections on two switches to connect Customer’s equipment to
\nExodus’ network.<\/p>\n
(iii) Service Level Warranty. In the event Customer experiences any of the
\nfollowing and Customer notifies Exodus of such event and Exodus determines in
\nits reasonable judgment that such inability was caused by Exodus’ failure to
\nprovide Internet Data Center Services for reasons within Exodus’ reasonable
\ncontrol and not as a result of any actions or inactions of Customer or any third
\nparties (including Customer Equipment and third party equipment), Exodus will,
\nupon Customer’s request, credit Customer’s account as described below:<\/p>\n
28<\/p>\n
(A) Inability to Access the Internet (Downtime). If Customer is unable to
\ntransmit and receive information from Exodus’ Internet Data Centers (ie, Exodus’
\nLAN and WAN) to other portions of the Internet because Exodus failed to provide
\nthe Internet Data Center Services for (i) more than [***] in a calendar month,
\nExodus will credit Customer’s account the pro-rata connectivity charges for
\n[***] of service, up to an aggregate maximum credit of connectivity charges for
\n[***] of service in any [***]. Exodus’ scheduled maintenance of the Internet
\nData Centers and Internet Data Center Services, as described in the Rules and
\nRegulations, shall not be deemed to be a failure of Exodus to provide Internet
\nData Center Services provided the aggregate amount of time that Exodus causes
\nCustomer to be unable to access the Internet as a result of such maintenance
\ndoes not exceed [***]. For purposes of the foregoing, “unable to transmit and
\nreceive” shall mean sustained packet loss in excess of 50% based on a sampling
\nof at least 100 packets per destination per minute.<\/p>\n
(B) Packet Loss and Latency. Exodus does not proactively monitor the
\npacket losses or transmission latency of specific customers. Exodus does,
\nhowever, proactively monitor the packet losses and transmission latencies of all
\nof its customers within its LAN and WAN. In the event that Exodus discovers
\n(either from its own efforts or after being advised by Customer) that Customer
\nis experiencing packet loss in excess of 2% (based on a sampling of at least 100
\npackets per destination) (“Excess Packet Loss”) or transmission latency in
\nexcess of 30 milliseconds within Exodus’ LAN, 120 milliseconds within Exodus’
\nWAN within the United States (and 400 milliseconds for the WAN outside the
\nUnited States) (collectively, “Excess Latency,” and with Excess Packet Loss
\n“Excess Packet Loss\/Latency”), Exodus will take all actions necessary to
\ndetermine the source of the Excess Packet Loss\/Latency.<\/p>\n
(1) Time to Discover Source of Excess Packet Loss\/Latency;
\nNotification of Customer. Within one (1) hour of discovering the existence of
\nExcess Packet Loss\/Latency, Exodus will determine whether the source of the
\nExcess Packet Loss\/Latency is limited to the Customer Equipment and the Exodus
\nequipment connecting the Customer Equipment to Exodus’ LAN (“Customer Specific
\nPacket Loss Latency”). If the Excess Packet Loss\/Latency is not a Customer
\nSpecific Packet Loss\/Latency, Exodus will determine the source of the Excess
\nPacket Loss\/Latency within two (2) hours after determining that it is not a
\nCustomer Specific Packet Loss\/Latency. In any event, Exodus will notify Customer
\nof the source of the Excess Packet Loss Latency within thirty (30) minutes after
\nidentifying the source.<\/p>\n
(2) Resolution of Cause of Excess Packet Loss\/Latency. If the Excess
\nPacket Loss\/Latency is a Customer Specific Packet Loss\/Latency, and the remedy
\nis within the control of Exodus, Exodus will remedy’ the Excess Packet
\nLoss\/Latency within two (2) hours of determining the source of the Excess Packet
\nLoss\/Latency. If the Excess Packet Latency is caused from within Exodus’ LAN
\nand\/or WAN, Exodus will remedy the Excess Packet Loss\/Latency within one (1)
\nhour of determining the source of the Excess Packet Loss\/Latency. If the Excess
\nPacket Loss\/Latency is caused from outside of the Exodus LAN or WAN, Exodus will
\nnotify Customer and will use commercially reasonable efforts to notify the
\nparty(ies) responsible for the source and cooperate with it(them) to resolve the
\nproblem as soon as possible.<\/p>\n
[***] Confidential treatment requested for redacted portion.<\/p>\n
29<\/p>\n
(3) Failure to Determine Source and\/or Resolve Problem. In the event
\nthat Exodus is unable to determine the source of and remedy the Excess Packet
\nLoss\/Latency within the time periods described above (where Exodus was in
\ncontrol of the source), Exodus will credit Customer’s account the pro-rata
\nconnectivity charges for [***] of service for every [***] after the time periods
\ndescribed above that it takes Exodus to resolve the problem, up to an aggregate
\nmaximum credit of connectivity charges for [***] of service in any [***].<\/p>\n
(iv) Remedies Shall Not Be Cumulative; Minimum Credit. In the event that
\nCustomer is entitled to multiple remedies hereunder arising from the same event,
\nsuch remedies shall not be cumulative and Customer shall be entitled to receive
\nonly the maximum single remedy available for such event. In no event will Exodus
\nbe required to credit Customer in any [***] connectivity charges in excess of
\n[***] of service. A credit shall be applied only to the month in which there was
\nthe incident that resulted in the credit. Customer shall not be eligible to
\nreceive any credits for periods in which Customer received any Internet Data
\nCenter Services free of charge. The parties agree that without imposing any
\naffirmative obligations on Customer and Exodus, if there are any instances where
\nCustomer would be entitled to receive more credits, but for the [***]
\nlimitation, Exodus and Customer shall meet and discuss whether Exodus can
\ncompensate Customer for any losses incurred.<\/p>\n
THIS SECTION 5.2(a) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE
\nBY EXODUS TO PROVIDE INTERNET DATA CENTER SERVICES.<\/p>\n
B. Additional Provisions.<\/p>\n
Provided Customer continues to purchase Internet Data Center services at
\nlevels not materially less than those described in the initial Service and Price
\nOrder Form, Exodus agrees to provide the following services, for no additional
\ncharge to Customer, and such services shall be deemed Internet Data Center
\nServices for purposes of this Agreement:<\/p>\n
1. Until such time as Exodus commences direct private peering
\nrelationships with MCI, Sprint and ANS, Exodus will provision a direct transit
\nDS3 circuit (or other level of bandwidth as may be mutually agreed to from time
\nto time between Exodus and Customer) directly to the Internet Data Center
\ncontaining the Customer Area from an Internet Service Provider that has direct
\nprivate peering relationships with MCI, Sprint and ANS. Exodus agrees to use its
\nbest efforts to commence private peering relationships with MCI, Sprint and ANS
\nas soon as possible, and Exodus currently desires to complete such relationships
\nby the second quarter of 1998.<\/p>\n
2. Exodus will provide tape data back-up and restore services for
\nCustomer Materials such that Exodus and Customer will have the capability to
\nrefresh Customer Materials at a rate of not less than 10GB\/hour. Exodus will
\nprovide daily logs of back-ups, to include start time, end time, data location,
\nand total amount backed up.<\/p>\n
[***] Confidential treatment requested for redacted portion.<\/p>\n
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