Exhibit 10.7
Internet Services and Co-Location Agreement
Please read this Internet Services and Co-Location Agreement (this "Agreement")
carefully before signing, since by signing this Agreement, you consent to all of
its terms and conditions. This Agreement is made by and between AboveNet
Communications, Inc. ("AboveNet") and Customer. This Agreement is effective upon
AboveNet's acceptance as indicated by its signature below on the date below (the
"Effective Date"). This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together shall
constitute one and the same instrument.
Customer Signature /s/ Jim Heintz Customer ID#_________________
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(print name) Jim Heintz Contract No. C______________
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Title C T O Effective Date___/____/_____
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Date 4/7/99 AboveNet Signature
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Company Name DAI (print name)_________________
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Address 124 S. Halcyon
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Arroyo Grande, CA 93420
Phone (805) 542-6793
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Fax (805) 473-4022
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Thank you for choosing AboveNet to provide your Internet co-location services.
As used in this Agreement, the term "you" and "Customer" refers to the
above-named corporation, partnership or other business entity that enters into
this Agreement, and "Service" means the transmission of data to and from the
Internet through the network of routers, switches and communication channels
owned and controlled by AboveNet ("Network") together with co-location services
including 24x7 connectivity to the Internet and Co-location Space, as further
defined in this Agreement and in your Order for AboveNet Services Form (the
"Order Form"). The initial Order Form is attached to this Agreement as Exhibit
A. AboveNet and Customer may enter into subsequent Order Forms, which may
supercede or complement prior Order Forms. As used in this Agreement, the term
"Customer Equipment" refers to any and all computer equipment, software,
networking hardware or other materials placed by or for Customer in the
Co-location Space, other than AboveNet Equipment.
AboveNet will begin installation, initiation and Service after it receives and
accepts: (1) your Order Form; (2) a copy of this Agreement signed by your
authorized representative and (3) payment of amounts due under Section 1.1
below, detailed on your Order Form.
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1. Service Fees And Billing. Customer agrees to pay the Service Activation
Charges, Monthly Service Fees, and other fees indicated on the Order Form
(collectively, "Service Fees").
1.1 Activation Charges. AboveNet will bill Customer for all Service
Activation Charges and first and last month Service Fees (the
"Activation Charges") upon AboveNet's acceptance of this Agreement
and the Order Form. AboveNet will not commence installation,
initiation and Service unless and until it either has received
payment in full of all Activation Charges or has agreed, at its sole
option, to extend credit to Customer.
1.2 Recurring Fees. AboveNet will begin billing for recurring Service
Fees on the date that is the earlier of: (a) the Installation Date
specified in the Order Form; and (b) the date that Customer places
Customer Equipment in AboveNet's premises. If, however, Customer is
unable to use the Services commencing on the Installation Date
solely as a result of delays caused by AboveNet, then the
Installation Date specified in the Order Form shall be extended one
day for each day of delay caused by AboveNet. On or about the first
day of each month, AboveNet will bill Customer for Network services
provided during the previous month, and for co-location services to
be provided in the current month. Recurring Service Fees do not
include monthly telephone company charges which are billed
separately by the local telephone company(s).
1.3 Payment. All Fees and charges will be due, in U.S. dollars, within
twenty (20) days of the date of each AboveNet invoice. Late payments
will accrue interest at a rate of one and one-half percent (1 1/2%)
per month, or the highest rate allowed by applicable law, whichever
is lower. If in its judgment AboveNet determines that Customer lacks
financial resources, AboveNet may, upon written notice to Customer,
modify the payment terms to secure Customer's payment obligations
before providing Services.
1.4 Taxes. All payments required by this Agreement are exclusive of
applicable taxes and shipping charges. Customer will be liable for
and will pay in full all such amounts, other than taxes based on
AboveNet' net income.
2. Co-Location.
2.1 Installation. AboveNet grants you the right to operate Customer
Equipment at the Co-location Space, as specified on your Order Form.
The Co-location Space is provided on an "AS-IS" basis and you may
use the Co-location Space only for the purposes of maintaining and
operating Customer Equipment as necessary to support local access
communications facilities and links to AboveNet and to third
parties. Customer will install Customer Equipment in the Co-location
Space after obtaining the appropriate authorization from AboveNet to
access AboveNet premises. Customer will remove and be solely
responsible for all packaging for Customer Equipment.
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2.2 Access. You may access the Co-location Space only in accordance with
the AboveNet Co-Location Access Policies located at
HTTP://WWW.ABOVE.NET/HTML/SECURITY.HTML, as updated from time to
time. Customer may not provide or make available to any third party
any portion of the Co-location Space without AboveNet's prior
written consent, which consent AboveNet may withhold in its sole
discretion.
2.3 Removal of Customer Equipment. Customer will provide AboveNet with
written notification two (2) days before Customer wishes to remove
any Customer Equipment. Before authorizing the removal of any
Customer Equipment, AboveNet's accounting department will verify
that Customer has no payments due to AboveNet. Once AboveNet
authorizes removal of Customer Equipment, Customer will remove such
Customer Equipment, and will be solely responsible to bring
appropriate packaging and moving materials. Should Customer use an
agent or other third party (for example, but without limitation, a
common carrier such as U.P.S.) to remove Customer Equipment,
Customer will be solely responsible for the acts of such party, and
any damages caused by such party to Customer Equipment or otherwise.
At Customer's option, AboveNet will remove and package Customer
Equipment, and place such Customer Equipment in a designated area
for pick-up, on the condition that Customer either provides all
packaging needed or pays AboveNet to package Customer Equipment.
Customer may thereafter remove Customer Equipment from the
designated area, or may arrange for a carrier to remove and ship
such equipment with any necessary insurance to be paid by Customer.
3. Security. AboveNet does not guarantee security of Customer Equipment, the
Co-Location Space or of the Network. AboveNet requires that you and your
employees comply with all Co-Location Security Procedures, as modified
from time to time, in order to maximize the security of the Network and
AboveNet premises. AboveNet's current Co-Location Security Procedures are
located at http://www.above.net/html/security.html. In particular, you
must establish a password with AboveNet for purposes of requesting any
support services with respect to Customer Equipment or your Network
connection, either by telephone or email. Information detailing password
requirements is available on the World Wide Web at
HTTP://WWW.ABOVE.NET/HTML/AUG.HTML. Only individuals whom you have
identified as "Customer Representatives" in writing to AboveNet will be
permitted to enter the Co-location Space, to request Services on your
behalf, or to request any support services with respect to Customer
Equipment or your Network connection, either by telephone or email (for
example, but without limitation, instructing AboveNet to modify or
reconfigure its Services or to remove Customer Equipment). For good cause,
AboveNet may suspend the right of any Customer Representative or other
person to visit the AboveNet premises and/or the Co-location Space.
AboveNet will assist in Network security breach detection or
identification, but shall not be liable for any inability, failure or
mistake in doing so.
4. Local and Long Distance Carriers. AboveNet will provide Customer with a
list of approved third party carriers for data communications and
telecommunications. Customer is responsible for ordering all local and
long-distance lines from such third
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party carriers and ordering any and all necessary cross-connects from
AboveNet. AboveNet Service Fees for such cross-connects are as indicated
on the Order Form. The carriers will install such circuits in Customer's
name. Customer will be solely responsible for such circuits and for all
payments due to the carriers. Customer will notify the carrier directly
when Customer wishes to terminate or modify such circuit.
5. Domain Information and Registration Application. If Customer has not
registered the domain name that it wishes to use, Customer may complete
the applicable sections of the Order Form to request registration or a
change in domain name.
6. Other Networks; Approval and Usage. Services include the ability to
transmit data beyond AboveNet's Network, through other networks, public
and private. Use of or presence on other networks may require approval of
the respective network authorities and will be subject to any acceptable
usage policies such networks may establish. Customer will not hold
AboveNet responsible for, and AboveNet will not be liable for, such
approval or for violation of such policies. Customer understands that
AboveNet does not own or control other networks outside of its Network,
and AboveNet is not responsible or liable for performance (or
non-performance) within such networks or within interconnection points
between the Service and other networks that are operated by third parties.
7. Resale. Customer may resell the Service after receiving AboveNet's prior
written approval as to the nature and scope of such resale as set forth in
Section 2.2. Should Customer resell any portion of the Service to any
other party, Customer assumes all liabilities arising out of or related to
such third party sites and communications. Customer agrees to enter into
written agreements with any and all parties to which it resells any
portion of the Services with terms and conditions at least as restrictive
and as protective of AboveNet's rights as the terms and conditions of this
Agreement, including, without limitation, Sections 2.3, 3, 6, 8, 9.6-9.8,
10, 11, 12, 14 and 16, and naming AboveNet as a third party beneficiary.
8. Acceptable Use Guidelines. Customer must at all times conform its use of
the Service to AboveNet's Acceptable Use Guidelines and Anti-SPAM Policy,
as AboveNet may update such Guidelines and Policy from time to time. The
current version of AboveNet's Acceptable Use Guidelines can be found at
HTTP://WWW.ABOVE.NET/HTML/AUG.HTML. AboveNet's Anti-SPAM Policy is located
at HTTP://WWW.ABOVE.NET/HTML/ANTI-SPAM.HTML. If AboveNet is informed by
government authorities or other parties of inappropriate or illegal use of
AboveNet's facilities (including but not limited to the Network) or other
networks accessed through AboveNet, or AboveNet otherwise learns of such
use or has reason to believe such use may be occurring, then Customer will
cooperate in any resulting investigation by AboveNet or government
authorities. Any government determinations will be binding on Customer. If
Customer fails to cooperate with any such investigation or determination,
or fails to immediately rectify any illegal use, AboveNet may immediately
suspend Customer's Service. Further, upon notice to Customer, AboveNet may
modify or suspend Customer's Service as necessary to comply with any law
or regulation as reasonably determined by AboveNet. This includes,
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without limitation, any use contrary to the Digital Millennium Copyright
Act of 1998, 17 U.S.C. 512.
9. Limited Service Level Warranty. AboveNet warrants that it will use its
commercially reasonable efforts to minimize Excess Packet Loss and
Latency, and to avoid Downtime, and that AboveNet will provide the
following remedies to Customer: (Excess Packet Loss, Latency and Downtime
are defined below)
9.1 Packet Loss and Latency. AboveNet does not proactively monitor the
packet loss or transmission latency of specific customers. AboveNet
does, however, proactively monitor the aggregate packet loss and
transmission latency within its LAN and WAN. In the event that
AboveNet discovers (either from its own efforts or after being
notified by Customer) that Customer is experiencing packet loss in
excess of five percent (5%) ("Excess Packet Loss") or transmission
latency in excess of 120 milliseconds round-trip time based on
AboveNet's measurements ("Latency") between any two routers within
the continental United States portion of the Network on average for
each hour, and Customer notifies AboveNet (or AboveNet has notified
Customer), then AboveNet will use its commercially reasonable
actions to determine the source of the Excess Packet Loss or Latency
and correct the problem.
9.2 Remedy for Failure. If either Excess Packet Loss or Latency occurs
and it stems from a source within the Network and not from the
Customer or beyond the Network, and if AboveNet fails to correct the
Excess Packet Loss or Latency after using its commercially
reasonable efforts for a period of twenty four (24) hours after the
onset of such Excess Packet Loss or Latency, then AboveNet will
credit Customer's account the pro-rata Bandwidth Fees (as set forth
in the applicable Order Form) for the continuous duration of such
Excess Packet Loss or Latency; provided that all such credits will
not exceed an aggregate maximum credit of Bandwidth Fees otherwise
due from Customer for one (1) calendar month for failures in any one
(1) calendar month.
9.3 Inability to Access the Internet (Downtime). AboveNet will use its
commercially reasonable efforts to avoid Downtime for 99.9% of the
hours as an average calculated over each calendar year. If Customer
is unable to transmit and receive information from the Network to
other portions of the Internet because AboveNet failed to provide
Network access Services ("Downtime") for more than four (4)
continuous hours, then AboveNet will credit Customer's account the
pro-rata Bandwidth Fees (as set forth in the applicable Order Form)
for the continuous duration of such Excess Packet Loss or Latency;
provided that all such credits will not exceed an aggregate maximum
credit of Bandwidth Fees otherwise due from Customer for one (1)
calendar month for failures in any one (1) calendar month. For
purposes of the foregoing, "unable to transmit and receive" shall
mean sustained packet loss in excess of fifty percent (50%) based on
AboveNet' measurements.
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9.4 Year 2000. AboveNet hereby incorporates its Year 2000 Compliance
Disclosure found at HTTP://WWW.ABOVE.NET/HTML/Y2K.HTML into this
Agreement. If Customer experiences any Excess Packet Loss, Latency
or Downtime due to AboveNet's failure to be Year 2000 compliant (as
defined in the Year 2000 Compliance Disclosure), Customer will have
the remedies set forth in this Section 9, and the limitations set
forth in this Section 9, Section 11 and the Year 2000 Compliance
Disclosure. The Year 2000 Compliance Disclosure, as incorporated
into this Agreement, is provided as a "Year 2000 Readiness
Disclosure" as defined in the Year 2000 Information and Readiness
Disclosure Act of 1998 (Public Law 105-271, 112 Stat. 2386) enacted
on October 19, 1998.
9.5 Customer Must Request Credit. Customer must notify AboveNet within
three (3) business days from the time Customer becomes eligible to
receive a credit under this Section 9 to receive such credit.
Failure to comply with this requirement will forfeit Customer's
right to receive a credit.
9.6 Limitation on Remedies. If Customer is entitled to multiple credits
under this Section 9, such credits shall not be cumulative beyond a
total of credits for one (1) calendar month of Bandwidth Fees in any
one (1) calendar month in any event. AboveNet will not apply a
credit under Section 9.2 for any Excess Packet Loss or Latency for
which Customer received a credit under Section 9.3. AboveNet will
only apply a credit to the month in which the incident occurred.
Further, AboveNet will not apply a credit for any period in which
Customer received any bandwidth Services free of charge. Sections
9.2 and 9.3 above state Customer's sole and exclusive remedy for any
failure by AboveNet to provide Services or adequate Service levels,
including but not limited to any outages or Network congestion.
AboveNet's blocking of data communications in contravention of its
Anti-SPAM Policy or Acceptable Use Guidelines shall not be deemed to
be a failure of AboveNet to provide adequate Service levels under
this Agreement.
9.7 No Other Warranty. Except for the express warranty set out in this
Section 9 above, the Services are provided on an "AS IS" basis, and
Customer's use of the Services is at its own risk. AboveNet does not
make, and hereby disclaims, any and all other express and implied
warranties, including, but not limited to, warranties of
merchantability, fitness for a particular purpose, non-infringement
and title, and any warranties arising from a course of dealing,
usage, or trade practice. AboveNet does not warrant that the
Services will be uninterrupted, error-free, or completely secure.
9.8 Disclaimer of Third Party Actions and Control. AboveNet does not and
cannot control the flow of data to or from the Network and other
portions of the Internet. Such flow depends in large part on the
performance of Internet services provided or controlled by third
parties. At times, actions or inactions caused by these third
parties can produce situations in which AboveNet customers'
connections to the Internet (or portions thereof) may be impaired or
disrupted. Although AboveNet will use commercially reasonable
efforts to take actions it
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deems appropriate to remedy and avoid such events, AboveNet cannot
guarantee that they will not occur. Accordingly, AboveNet disclaims
any and all liability resulting from or related to such events.
10. Insurance. Customer will keep in full force and effect during the term of
this Agreement: (i) business loss and interruption insurance in an amount
not less than that necessary to compensate Customer and its customers for
complete failure of Service; (ii) comprehensive general liability
insurance in an amount not less than one (1) million dollars per
occurrence for bodily injury and property damage; (ii) employer's
liability insurance in an amount not less than one (1) million dollars per
occurrence; and (iii) workers' compensation insurance in an amount not
less than that required by applicable law. Customer also agrees that it
will be solely responsible for ensuring that its agents (including
contractors and subcontractors) maintain other insurance at levels no less
than those required by applicable law and customary in Customer's and its
agents' industries. Prior to installation of any Customer Equipment in the
Co-location Space or otherwise as AboveNet may request, Customer will
furnish AboveNet with certificates of insurance which evidence the minimum
levels of insurance set forth above. Customer agrees that prior to the
installation of any Customer Equipment at AboveNet premises or the
Co-location Space, Customer will cause its insurance provider(s) to name
both AboveNet and the AboveNet landlord indicated on the applicable Order
Form as additional insured and notify AboveNet in writing of the effective
date of such coverage. Customer agrees that Customer and its agents and
representatives shall not pursue any claims against AboveNet for any
liability AboveNet may have under or relating to this Agreement unless and
until Customer or Customer's employee, as applicable, first makes claims
against Customer's insurance provider(s) and such insurance provider(s)
finally resolve(s) such claims. Any inability by Customer to furnish the
proof the insurance required under this Section 10 or failure to obtain
such insurance shall be a material breach of this Section 10 and of this
Agreement.
11. Limitations of Liability.
11.1 Personal Injury. Each Customer Representative and any other persons
visiting AboveNet facilities does so at his or her own risk and
AboveNet shall not be liable for any harm to such persons resulting
from any cause other than AboveNet's gross negligence or willful
misconduct resulting in personal injury to such persons during such
a visit.
11.2 Damage to Customer Business. Except as expressly set forth in
Section 9 including the limited remedy and other limitations set
forth under Section 9, in no event will AboveNet be liable to
Customer, any Customer Representative, or any third party for any
claims arising out of or related to Customer's business, Customer's
customers or clients, Customer Representative's activities at
AboveNet or otherwise, or for any lost revenue, lost profits,
replacement goods, loss of technology, rights or services,
incidental, punitive, indirect or consequential damages,
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loss of data, or interruption or loss of use of Service or of any
Customer's business, even if advised of the possibility of such
damages, whether under theory of contract, tort (including
negligence), strict liability or otherwise.
11.3 Damage to Customer Equipment. AboveNet assumes no liability for any
damage to, or loss of, any Customer Equipment resulting from any
cause other than AboveNet's gross negligence or willful misconduct.
To the extent AboveNet is liable for any damage to, or loss of, the
Customer Equipment for any reason, such liability will be limited
solely to the then-current value of the Customer Equipment and
further subject to the limitations set forth in this Section 11.3
and in Section 11.4 below. In no event will AboveNet be liable to
Customer, any Customer Representative, or any third party for any
claims arising out of or related to Customer Equipment for any lost
revenue, lost profits, replacement goods, loss of technology, rights
or services, incidental, punitive, indirect or consequential
damages, loss of data, or interruption or loss of use of any
Customer Equipment, even if advised of the possibility of such
damages, whether under theory of contract, tort (including
negligence), strict liability or otherwise.
11.4 Maximum Liability. Notwithstanding anything to the contrary in this
Agreement, AboveNet's maximum aggregate liability to Customer
related to or in connection with this Agreement will be limited to
the total amount paid by Customer to AboveNet hereunder for the
Twelve (12) month period prior to the event or events giving rise to
such liability.
12. Defense of third party claims and Indemnification.
12.1 Defense. Customer will defend AboveNet, its directors, officers,
employees, affiliates and customers (collectively, the "Covered
Entities") from and against any and all claims, actions or demands
brought by or against AboveNet and/or any of the Covered Entities
alleging: (a) with respect to the Customer's business: (i)
infringement or misappropriation of any intellectual property
rights; (ii) defamation, libel, slander, obscenity, pornography, or
violation of the rights of privacy or publicity; or (iii) spamming,
or any other offensive, harassing or illegal conduct or violation of
the Acceptable Use Guidelines or Anti-Spam Policy; (b) any damage or
destruction to the Co-location Space, the Network, AboveNet
premises, AboveNet Equipment or to any other AboveNet customer which
damage is caused by or otherwise results from acts or omissions by
Customer, Customer Representative(s) or Customer's designees; (c)
any personal injury or property damage to any Customer employee,
Customer Representative or other Customer designee arising out of
such individual's activities related to the Services, unless such
injury or property damage is caused solely by AboveNet's gross
negligence or willful misconduct; or (d) any other damage arising
from the Customer Equipment or Customer's business (collectively,
the "Covered Claims").
12.2 Indemnification. Customer hereby agrees to indemnify AboveNet and
each Covered Entity from and against all damages, costs, and fees
awarded in favor of third parties in each Covered Claim, and
Customer will indemnify and hold
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harmless AboveNet and each Covered Entity from and against any and
all claims, demands, liabilities, losses, damages, expenses and
costs (including reasonable attorneys fees) (collectively, "Losses")
suffered by AboveNet and each Covered Entity which Losses result
from or arise out of a Covered Claim.
12.3 Notification. Customer will provide AboveNet with prompt written
notice of each Covered Claim of which Customer becomes aware, and,
at AboveNet's sole option, AboveNet may elect to participate in the
defense and settlement of any Covered Claim, provided that such
participation shall not relieve Customer of any of its obligations
under this Section 12.
13. Reliance on Disclaimer, Liability Limitations and Indemnification
Obligations. Customer acknowledges that AboveNet has set its prices and
entered into this Agreement in reliance upon the limitations and
exclusions of liability, the disclaimers of warranties and damages and
Customer's indemnity obligations set forth herein, and that the same form
an essential basis of the bargain between the parties. The parties agree
that the limitations and exclusions of liability and disclaimers specified
in this Agreement will survive and apply even if this Agreement is found
to have failed of their essential purpose.
14. Confidential Information. Each party acknowledges that it will have access
to certain confidential information of the other party concerning the
other party's business, plans, customers, technology, and products,
including the terms and conditions of this Agreement ("Confidential
Information"). Confidential Information will include, but not be limited
to, each party's proprietary software and customer information. Each party
agrees that it will not use in any way, for its own account or the account
of any third party, except as expressly permitted by this Agreement, nor
disclose to any third party (except as required by law or to that party's
attorneys, accountants and other advisors as reasonably necessary), any of
the other party's Confidential Information and will take reasonable
precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information hereunder if such
information: (i) is known to the receiving party prior to receipt from the
disclosing party directly or indirectly from a source other than one
having an obligation of confidentiality to the disclosing party; (ii)
becomes known (independently of disclosure by the disclosing party) to the
receiving party directly or indirectly from a source other than one having
an obligation of confidentiality to the disclosing party; (iii) becomes
publicly known or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by the receiving party; (iv) is
independently developed by the receiving party; or (v) is required to be
released by law or regulation, provided that the receiving party provide
prompt written notice to the disclosing party of such impending release,
and the releasing party cooperate fully with the disclosing party to
minimize such release.
15. Term. This Agreement will be effective beginning on the Effective Date and
ending at the end of the last "Term" specified in any Order Form accepted
by AboveNet, unless terminated as provided in Section 16 below. Use of any
Service after the Term specified on the Order Form under which such
Service was provided will constitute Customer's
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acceptance of AboveNet's then current standard Agreement and the fee rates
then in effect, but be terminable by AboveNet upon notice.
16. Termination.
16.1 Nonpayment. After fifteen (15) days of non-payment from the due
date, or such longer period as AboveNet's Billing Terms & Conditions
may provide, AboveNet may disable Service. To re-enable Service,
AboveNet will require a reconnection fee. After thirty (30) days of
nonpayment from the AboveNet invoice due date, or such longer period
as AboveNet's Billing Terms & Conditions may provide, AboveNet may
terminate the Service permanently. Termination does not remove
Customer's obligations under this Agreement, including the
obligation to pay all fees for Service until termination or due for
a committed, initial Term.
16.2 Unacceptable Use; Bankruptcy. AboveNet may terminate this Agreement
upon written notice to Customer for violation of the Acceptable Use
Guidelines or Anti-Spam Policy or if Customer becomes the subject of
a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors or becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership, liquidation, or composition
for the benefit of creditors, if such petition or proceeding is not
dismissed within sixty (60) days of filing.
16.3 For Cause. Either party may terminate this Agreement if the other
party materially breaches any term or condition of this Agreement
and fails to cure such breach within thirty (30) days after receipt
of written notice of the same, except in the case of failure to pay
fees which failure is subject to Section 16.1 above or for failure
to comply with AboveNet's Acceptable Use Guidelines or Anti-SPAM
Policy as set forth in Section 16.2.
16.4 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of this Agreement in
accordance with its terms. However, expiration or termination will
not extinguish claims or liability (including, without limitation,
for payments due) arising prior to such expiration or termination.
16.5 Effect of Termination. Upon the effective date of expiration or
termination of this Agreement: (a) AboveNet will immediately cease
providing the Services; (b) any and all payment obligations of
Customer under this Agreement will become due immediately, including
but not limited to Recurring Service Fees through the end of the
term indicated on the Order Form adjusted for the net present value
of the prospective payments; (c) within thirty (30) days after such
expiration or termination, each party will return all Confidential
Information of the other party in its possession at the time of
expiration or termination and will not make or retain any copies of
such Confidential Information except as required to comply with any
applicable legal or accounting record keeping requirement; and (d)
Customer will remove from AboveNet's premises all Customer
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Equipment and any of its other property on AboveNet premises within
ten (10) days of AboveNet's request (and only after Customer
receives authorization from AboveNet as provided in Section 2.3) and
return the Co-location Space to AboveNet in the same condition as it
was prior to Customer's installation. If Customer does not remove
such property (or cannot remove such property because of payments
due to AboveNet) within such ten (10) day period, then AboveNet may
move any and all such property to storage and charge Customer for
the cost of such removal and storage, without being liable for
related damages. If Customer does not pay all amounts due to
AboveNet and remove such property from AboveNet premises or storage
within thirty (30) days of such AboveNet request, AboveNet may
liquidate the property in any reasonable manner, without being
liable for related damages.
16.6 Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 1.3, 1.4, 2 (until all
Customer Equipment is removed from the Co-location Space), 3, 4, 6,
8, 9.5-9.8, 10-13, 14 (for a period of three (3) years), 16.4-16.6,
and 17.
17. Miscellaneous Provisions.
17.1 Force Majeure. Except for the obligation to pay money, neither party
will be liable for any failure or delay in its performance under
this Agreement, or for credits under Section 9, due to any cause
beyond its reasonable control, including acts of war, acts of God,
earthquake, flood, embargo, riot, sabotage, labor shortage or
dispute, governmental act or failure of the Internet, provided that
the delayed party: (a) gives the other party prompt notice of such
cause, and (b) uses its reasonable commercial efforts to correct
promptly such failure or delay in performance.
17.2 No Lease. This Agreement is a services agreement and is not intended
to and will not constitute a lease of any real or personal property.
In particular, Customer acknowledges and agrees that Customer has
not been granted any real property interest in the Co-location Space
or other AboveNet premises, and Customer has no rights as a tenant
or otherwise under any real property or landlord/tenant laws,
regulations, or ordinances.
17.3 Marketing. Customer agrees that AboveNet may refer to Customer by
trade name and trademark, and may briefly describe Customer's
Business in AboveNet's marketing materials and web site. Customer
hereby grants AboveNet a limited license to use any Customer trade
names and trademarks solely in connection with the rights granted to
AboveNet pursuant to this Section 17.3. All goodwill associated with
Customer's trade name and trademarks will inure solely to Customer.
Customer may display the slogan "Powered by AboveNet" together with
the AboveNet logo, or any other AboveNet trademark or service mark
or logo, on Customer's web sites or marketing literature only after
obtaining AboveNet's written approval on a case-by-case basis, and
provided that Customer abide by the AboveNet trademark guidelines
and such other guidelines as
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AboveNet may provide Customer. All goodwill associated with
AboveNet's trade name, trademarks, slogans and logos will inure
solely to AboveNet.
17.4 Government Regulations. Customer will not export, re-export,
transfer, or make available, whether directly or indirectly, any
regulated item or information to anyone outside-the U.S. in
connection with this Agreement without first complying with all
export control laws and regulations which may be imposed by the U.S.
Government and any country or organization of nations within whose
jurisdiction Customer operates or does business.
17.5 Assignment. Neither party may assign its rights or delegate its
duties under this Agreement either in whole or in part without the
prior written consent of the other party, except to a party that
acquires substantially all of the assigning party's assets or a
majority of its stock as part of a corporate merger or acquisition.
Any attempted assignment or delegation without such consent will be
void. This Agreement will bind and inure to the benefit of each
party's successors and permitted assigns.
17.6 Notices. Any notice or communication required or permitted to be
given hereunder may be delivered personally, deposited with an
overnight courier, sent by confirmed facsimile, or mailed by
registered or certified mail, return receipt requested, postage
prepaid, in each case to the address of the receiving party first
indicated above, or at such other address as either party may
provide to the other by written notice. Such notice will be deemed
to have been given as of the date it is delivered, or five (5) days
after mailed or sent, whichever is earlier.
17.7 Relationship of Parties. AboveNet and Customer are independent
contractors and this Agreement will not establish any relationship
of partnership, joint venture, employment, franchise or agency
between AboveNet and Customer. Neither AboveNet nor Customer will
have the power to bind the other or incur obligations on the other's
behalf without the other's prior written consent, except as
otherwise expressly provided herein.
17.8 Choice of Law and Arbitration. This Agreement will be governed by
and construed in accordance with the laws of the State of
California, excluding its conflict of laws principles. Each party
agrees to submit any and all disputes concerning this Agreement, if
not resolved between the parties, to binding arbitration under one
(1) neutral, independent and impartial arbitrator in accordance with
the Commercial Rules of the American Arbitration Association
("AAA"); provided, however, the arbitrator may not vary, modify or
disregard any of the provisions contained in this Section 17.8. The
decision and any award resulting from such arbitration shall be
final and binding. The place of arbitration will be at AboveNet's
offices. The arbitrator is not empowered to award damages in excess
of compensatory damages and each party hereby irrevocably waives any
right to recover such damages with respect to any dispute resolved
by arbitration. Both parties shall equally share the fees of the
arbitrator. The language of arbitration will be English; provided,
however that an interpreter may be provided
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for any witness that requires an interpreter. The costs of such
interpretation will be borne by the party requesting the
interpreter. Any final decision or award from arbitration under this
Section 17.8 will be in writing and reasoned. The arbitrator may
award attorney's fees to the prevailing party as determined by the
arbitrator with wide discretion considering both (i) which party
bettered its position most by the outcome of the Arbitration, and
(ii) that the parties intended that all limitations on liability
would be enforced by the arbitrator. Except for attorney's fees as
the arbitrator may award as provided in the previous sentence, each
will bear their own costs and expenses that are reasonable and
necessary for participating in arbitration under this Section 17.8.
As part of any arbitration conducted under this Section 17.8, each
party may: (i) request from the other party documents and other
materials relevant to the dispute and likely to bear on the issues
in such dispute, (ii) conduct no more than five (5) oral depositions
each of which will be limited to a maximum of seven hours in
testimony, and (iii) propound to the other party no more than thirty
(30) written interrogatories, answers to which the other party will
give under oath. All the dispute resolution proceedings contemplated
in this Section 17.8 will be as confidential and private as
permitted by law. The parties will not disclose the existence,
content or results of any proceedings conducted in accordance with
this Section 17.8, and materials submitted in connection with such
proceedings will not be admissible in any other proceeding, provided
however, that this confidentiality provision will not prevent a
petition to vacate or enforce an arbitration award, and shall not
bar disclosures required by law. The parties agree that any decision
or award resulting from proceedings in accordance with this Section
17.8 shall have no preclusive effect in any other matter involving
third parties. All applicable statutes of limitation and defenses
based upon the passage of time will be tolled while the procedures
specified in this Section 17.8 are pending. The parties will take
such action, if any, required to effectuate such tolling. The
arbitration shall be governed by the United States Arbitration Act
and judgement upon the award rendered by the arbitrator may be
entered by any court having jurisdiction.
17.9 Changes Prior to Execution. Customer represents and warrants that it
made no changes to this Agreement prior to providing this Agreement
to AboveNet for its acceptance and execution, and that AboveNet
alone incorporated any and all changes negotiated between, and
accepted by, Customer and AboveNet into this Agreement or into an
addendum executed by both parties.
17.10 Entire Agreement. This Agreement, together with the Order Form and
AboveNet policies referred to in this Agreement represents the
complete agreement and understanding of the parties with respect to
the subject matter herein, and supersedes any other agreement or
understanding, written or oral. This Agreement may be modified only
through a written instrument signed by both parties. Both parties
represent and warrant that they have full corporate power and
authority to execute and deliver this Agreement and to perform their
obligations under this Agreement and that the person whose signature
appears above is duly authorized to enter into this Agreement on
behalf of the respective party. Should any terms of this Agreement
be declared void or unenforceable by any arbitrator
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or court of competent jurisdiction, such terms will be amended to
achieve as nearly as possible the same economic effect as the
original terms and the remainder of this Agreement will remain in
full force and effect. If a conflict arises between Customer's
purchase order terms and this Agreement, this Agreement shall take
precedence. In the case of international, federal, state or local
government orders, Customer's purchase order must contain the
following language: "Notwithstanding any provisions to the contrary
on the face of this purchase order, attachments to this purchase
order, or on the reverse side of this purchase order, this purchase
order is being used for administrative purposes only, and this
purchase order is placed under and subject solely to the terms and
conditions of the AboveNet Network Agreement executed between
Customer and AboveNet."
End of AboveNet Internet Services Agreement
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