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EXHIBIT 10.14
Exodus Communications, Inc.
Master Services Agreement
This Master Services Agreement (the "Agreement") between Exodus Communications,
Inc. ("Exodus") and HomeGrocer.com, Inc. ("Customer") is made effective as of
date indicated below the Customer signature on the initial Order Form submitted
by Customer and accepted by Exodus.
1. Overview.
1.1 General. This Agreement states the terms and conditions by which
Exodus will deliver and Customer will receive any or all of the services
provided by Exodus, including facilities, bandwidth, managed services and
professional services. If Customer purchases any equipment from Exodus (as
indicated in the Order Form(s) described below), the terms and conditions by
which Customer purchases and Exodus sells such equipment are stated in Addendum
A attached hereto. Only this Section 1.1 and Addendum A shall apply to the
purchase and sale of equipment. The specific services and/or products to be
provided hereunder are identified in the Order Form(s) submitted by Customer and
accepted by Exodus and described in detail in the Specification Sheets and
Statements of Work attached to each Order Form. Each Order Form, Specification
Sheet and Statement of Work submitted, accepted and executed by both parties is
hereby incorporated by reference into this Agreement. This Agreement is intended
to cover any and all Service(s) ordered by Customer and provided by Exodus. In
the event that any terms set forth herein apply specifically to a service not
ordered by Customer, such terms shall not apply to Customer.
1.2 Definitions.
(a) "Customer Area" means those portion(s) of the Internet Data
Center(s) made available to Customer for the placement of Customer Equipment
and/or Exodus Supplied Equipment and use of the Service(s).
(b) "Customer Equipment" means the Customer's computer hardware, not
including stored data, and other tangible equipment placed by Customer in the
Customer Area. The Customer Equipment shall be identified on Exodus' standard
customer equipment list completed and delivered by Customer to Exodus, as
amended in writing from time to time by Customer.
(c) "Customer Registration Form" means the list that contains the
names and contact information of individuals authorized by Customer to enter the
Internet Data Center(s) and Customer Area, as delivered by Customer to Exodus
and amended in writing from time to time by Customer.
(d) "Customer Technology" means Customer's proprietary technology,
including, without limitation, Customer's Internet operations design, content,
software tools, hardware designs, algorithms, software (in source and object
forms), user interface designs, architecture, class libraries, objects and
documentation (both printed and electronic), know-how, trade secrets and any
related intellectual property rights throughout the world (whether owned by
Customer or licensed to Customer from a third party) and also including any
derivatives, improvements, enhancements or extensions of Customer Technology.
(e) "Exodus Technology" means Exodus' proprietary technology,
including Service(s), software tools, hardware designs, algorithms, software (in
source and object forms), user interface designs, architecture, class libraries,
objects and documentation (both printed and electronic), network designs, know-
how, trade secrets and any related intellectual property rights throughout the
world (whether owned by Exodus or licensed to Exodus from a third party) and
also including any derivatives, improvements, enhancements or extensions of
Exodus Technology that are not uniquely applicable to Customer.
(f) "Initial Term" means the minimum term for which Exodus will
provide the Service(s) to Customer, as indicated on the Order Form(s). Except as
otherwise expressly provided in this Agreement, Exodus is obligated to provide
and Customer is obligated to pay for each Service through its Initial Term.
(g) "Internet Data Center(s)" means any of the facilities used by
Exodus to provide the Service(s).
(h) "Professional Services" means any non-standard professional or
consulting service provided by Exodus to Customer as more fully described in a
Statement of Work.
(i) "Exodus Supplied Equipment" means the computer hardware, software
and other tangible equipment and intangible computer code contained therein to
be provided by Exodus for use by Customer as set forth on the Order Form(s).
(j) "Representatives" mean the individuals identified in writing on
the Customer Registration Form and authorized by Customer to enter the Internet
Data Center(s) and the Customer Area.
(k) "Rules and Regulations" means the Exodus general rules and
regulations governing Customer's use of Service(s), including, but not limited
to, on line conduct, and the obligations of Customer and its Representatives in
the Internet Data Center(s), which have been provided to Customer in writing
prior to execution of this Agreement.
(l) "Service(s)" means the specific Internet Data Center service(s)
provided by Exodus as described on the Order Form(s).
(m) "Service Commencement Date" means the date Exodus will begin
providing the Service(s) to Customer, as indicated in a Notice of Service
Commencement delivered by Exodus to Customer.
(n) "Service Level Warranty" is described and defined in Section 5.2
below.
(o) "Specification Sheet" means the detailed description for each
Service, other than Professional Services, ordered by Customer that is attached
to an Order Form(s).
(p) "Statement of Work" means the detailed description(s) of the
Professional Services attached to (an) Order Form(s).
(r) "Work" means any tangible deliverable provided by Exodus to
Customer as described in the Statement of Work for any Professional Service.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
(a) General. By submitting an Order Form, Customer agrees to take and
pay for, and, by accepting the Order Form, Exodus agrees to provide, the
Service(s) during the Initial Term and for any period thereafter, as specified
in paragraph 2.2(b) below.
(b) Delivery of Supplemental Services. The purpose of this provision
is to enable Exodus to provide Customer with certain limited services and
equipment needed by Customer on a "one-off" or emergency basis ("Supplemental
Services") where such services are not included within the scope of the
Service(s) as described in the Specification Sheets and/or Statement of Work.
Supplemental Service may include, as an example, a request from Customer to
Exodus via telephone that Exodus immediately replace a problem Customer server
with an Exodus server for a temporary period of time. Exodus shall notify
Customer of the fees for any Supplemental Services requested by Customer and
obtain Customer's approval prior to providing such services. In the event Exodus
reasonably determines that Supplemental Services are required on an emergency
basis, after making reasonable attempts to contact Customer, Exodus may provide
such services without the consent of Customer, thereafter provide notice of the
services to Customer and bill Customer a reasonable fee for such services.
Customer agrees to pay Exodus the reasonable fees charged by Exodus for
Supplemental Services. Customer will be charged for Supplemental Services in the
invoice issued the month following delivery of the services. Exodus will use
commercially reasonable efforts to provide Supplemental Services, provided that
Exodus has no obligation to determine the need for or provide Supplemental
Services.All Supplemental Services provided pursuant to this paragraph 2.1(b)
are provided in a professional and workmanlike manner
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consistent with industry standards reasonably applicable to the performance
thereof. Otherwise, all Supplemental Services are provided on an "as-is" basis
and exclude warranties of any kind, whether express or implied.
2.2 Term.
(a) Term Commencement. The term for each Service will commence on the
Service Commencement Date indicated in the Notice of Service Commencement
delivered by Exodus to Customer when Exodus begins providing each Service to
Customer, and shall continue through the duration of the Initial Term as
specified on the Order Form.
(b) Continuation of Services After Initial Term. At the end of the
Initial Term for each ordered monthly recurring Service, Exodus will continue to
provide the Service, and Customer will continue to take and pay for the monthly
recurring Service, indefinitely and pursuant to the terms and conditions of this
Agreement, until either party notifies the other in writing that it has elected
to terminate the Service, in which case, the term will end for such Service
effective thirty (30) days after the receipt of such notice. Notwithstanding the
foregoing, Exodus may change or increase the prices it charges Customer for any
Service at any time after the Initial Term effective sixty (60) days after
providing written notice to Customer. This paragraph 2.2(b) does not apply to
Exodus Supplied Equipment which is only provided for the Initial Term.
3. Fees and payment terms.
3.1 Fees and Expenses. Customer will pay all fees due according to the
prices and terms listed in the Order Form(s). The prices listed in the Order
Form(s) will remain in effect during the Initial Term indicated in the Order
Form(s) and will continue thereafter, unless modified in accordance with Section
2.2. Customer also agrees to reimburse Exodus for actual out-of-pocket
reasonable expenses incurred in providing Professional Services to Customer.
3.2 Payment Terms. On the Service Commencement Date for each Service,
Customer will be billed an amount equal to all non-recurring charges indicated
in the Order Form and the monthly recurring charges for the first month of the
term. Monthly recurring charges for all other months will be billed in advance
of the provision of Service(s). All other charges for Service(s) received and
expenses incurred for Professional Services during a month (e.g., bandwidth
usage fees, travel expenses) will be billed at the end of the month in which the
Service(s) or Professional Services were provided. Payment for all fees is due
upon receipt of each Exodus invoice. All payments will be made in the United
States in U.S. dollars.
3.3 Late Payments. Any payment not received within thirty (30) days of the
date of the invoice 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 Customer is more than sixty (60) days delinquent in its payments,
Exodus may, upon written notice to Customer, modify the payment terms to require
full payment before the provision of all Service(s) and Exodus Supplied
Equipment or require other reasonable assurances to secure Customer's payment
obligations hereunder.
3.4 Taxes. All fees charged by Exodus for Service(s) are exclusive of all
taxes and similar fees now in force or enacted in the future imposed on the
transaction and/or the delivery of Service(s), all of which Customer will be
responsible for and will pay in full, except for taxes based on Exodus' net
income.
4. Confidential Information; Intellectual Property Ownership; License Grants.
4.1 Confidential Information.
(a) Nondisclosure of 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, and other information held in confidence by the other party
("Confidential Information"). Confidential Information will include all
information in tangible or intangible form that is marked or designated as
confidential or that, under the circumstances of its disclosure, should be
considered confidential. Confidential Information will also include, but not be
limited to, Exodus Technology, Customer Technology, and the terms and conditions
of this Agreement. 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,
or required to achieve the purposes of, 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, at least as stringent as it takes to
protect its own Confidential Information.
(b) Exceptions. 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; or (iv) is independently developed by
the receiving party without reference to the other party's Confidential
Information. The receiving party may disclose Confidential Information pursuant
to the requirements of a governmental agency or by operation of law, provided
that it gives the disclosing party reasonable prior written notice sufficient to
permit the disclosing party to contest such disclosure.
4.2 Intellectual Property.
(a) Ownership. Except for the rights expressly granted herein and the
assignment expressly made in paragraph 4.4(a), this Agreement does not transfer
from Exodus to Customer any Exodus Technology, and all right, title and interest
in and to Exodus Technology will remain solely with Exodus. Except for the
rights expressly granted herein, this Agreement does not transfer from Customer
to Exodus any Customer Technology, and all right, title and interest in and to
Customer Technology will remain solely with Customer. Exodus and Customer each
agrees that it will not, directly or indirectly, reverse engineer, decompile,
disassemble or otherwise attempt to derive source code or other trade secrets
from the other party.
(b) General Skills and Knowledge. Notwithstanding anything to the
contrary in this Agreement, Exodus will not be prohibited or enjoined at any
time from utilizing any skills or knowledge of a general nature acquired during
the course of providing the Services, including, without limitation, information
publicly known or available or that could reasonably be acquired in similar work
performed for another customer of Exodus.
4.3 License Grants.
(a) By Exodus. Exodus hereby grants to Client a nonexclusive,
royalty-free license, during the term of this Agreement, to use the Exodus
Technology solely for purposes of using the Service(s), Supplemental Services
and Professional Service(s). Customer shall have no right to use the Exodus
Technology for any purpose other than using the Service(s), Supplemental
Services or Professional Services.
(b) By Customer. Customer agrees that if, in the course of performing
the Service(s), it is necessary for Exodus to access Customer Equipment and use
Customer Technology, Exodus is hereby granted and shall have a nonexclusive,
royalty-free license, during the term of this Agreement, to use the Customer
Technology solely for the purposes of delivering the Service(s) to Customer.
Exodus shall have no right to use the Customer Technology for any purpose other
than providing the Service(s).
4.4 Professional Services; Assignments and License.
(a) Assignment of Work. Effective at the time Exodus receives full
and final payment for the Work, Exodus assigns to Customer all rights, title and
interest, including all intellectual property rights, in the Work, provided,
however, that such assignment does not include the Exodus Technology.
(b) License Grant. Commencing at the time Exodus receives full and
final payment for the Work, Exodus grants to Customer a non-exclusive, non-
transferable, royalty free, perpetual license to use the Exodus Technology
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incorporated into the Work solely in connection with the use of the Work as a
whole. To the extent that Customer or its employees or contractors participate
in the creation or development of Exodus Technology, Customer, on behalf of
itself and its employees and contractors, hereby assigns to Exodus all right,
title and interest, including all intellectual property rights in, the Exodus
Technology.
5. Exodus Representations and Warranties.
5.1 General.
(a) Authority and Performance of Exodus. Exodus represents and
warrants that (i) it has the legal right to enter into this Agreement and
perform its obligations hereunder,and (ii) the performance of its obligations
and delivery of the Service(s) to Customer will not violate any applicable U.S.
laws or regulations, including OSHA requirements, or cause a breach of any
agreements with any third parties. In the event of a breach the warranties set
forth in this paragraph 5.1(a), Customer's sole remedy is termination pursuant
to Section 10 of the Agreement.
(b) Year 2000 Performance Compliance. Exodus warrants that none of
the computer hardware and software systems and equipment incorporated into or
utilized in the delivery of the Service(s) contain any date dependent routines
or logic which will fail to operate correctly after December 31, 1999, by reason
of such date dependence; provided, however, that no representation or warranty
is made as to the adequacy of any Customer or third party service provider
hardware or software used in connection with the Service(s). Exodus agrees to
immediately notify Customer if it becomes aware that any third party's software
or hardware is not Year 2000 compliant. In the event of any breach of the
warranties under this paragraph 5.1(b), Customer's sole remedy is termination
pursuant to Section 10 of the Agreement.
5.2. Service Level Warranty. In the event that Customer experiences any of
the service performance issues defined in this Section 5.2, Exodus will, upon
Customer's request in accordance with paragraph 5.2(d) below, credit Customer's
account as described below (the "Service Level Warranty"). The Service Level
Warranty includes a 100% facility uptime guarantee for the Internet Data
Center(s), a 100% power availability guarantee for power provided to the
Customer Area, a 99.97% uptime guarantee for Exodus' U.S. Network (which means
that Exodus shall use all reasonable commercial efforts to ensure that the
Exodus Network is operating and available to Customer at least 99.97% of the
time in any calendar month), and a latency guarantee for monthly average round-
trip transmissions of 120 milliseconds or less between any two points within
Exodus' U.S. network. The Service Level Warranty shall not apply to any services
other than bandwidth and facility services, and, shall not apply to performance
issues (i) caused by factors outside of Exodus's reasonable control; (ii) that
resulted from any actions or inactions of Customer or any third parties (not
including affiliates of Exodus); or (iii) that resulted from Customer's
equipment and/or third party equipment (not within the sole control of Exodus).
(a) Service Warranty Definitions. For purposes of this Agreement, the
following definitions shall apply only to the Service(s) (not including
Professional Services).
(i) "Downtime" shall mean sustained packet loss in excess of
fifty percent (50%) within Exodus' U.S. network for fifteen (15) consecutive
minutes. Downtime shall not include any packet loss or network unavailability
during Exodus' scheduled maintenance of the Internet Data Centers, network and
Service(s), as described in the Rules and Regulations. The term "Downtime" shall
include without limitation any service interruption for fifteen (15) consecutive
minutes due to a power failure or environmental control failure due to action or
inaction by Exodus at an Internet Data Center.
(ii) "Excess Latency" shall mean transmission latency in excess
of one hundred twenty (120) milliseconds round trip time between any two points
within Exodus' U.S. network.
(iii) "Excess Packet Loss" shall mean packet loss in excess of
one percent (1%) between any two points within Exodus' U.S. network.
(iv) "Performance Problem" shall mean Excess Packet Loss and/or
Excess Latency and/or Facility Downtime.
(v) "Service Credit" shall mean an amount equal to the pro-
rata monthly recurring connectivity charges (i.e., all monthly recurring
bandwidth-related charges) for one (1) day of Service.
(b) Downtime Periods. In the event Customer experiences Downtime,
Customer shall be eligible to and shall receive from Exodus a Service Credit for
each Downtime period. Examples: If Customer experiences one Downtime period, it
shall be eligible to and shall receive one Service Credit. If Customer
experiences two Downtime periods, either from a single event or multiple events,
it shall be eligible to and shall receive two Service Credits. If Customer
experiences Facility Downtime, Customer shall be eligible to and shall receive
from Exodus a Facility Downtime Service Credit for each Facility Downtime
Period.
(c) Performance Problem; Packet Loss and Latency; Requests for
Service Credits. In the event that Exodus discovers or is notified by Customer
that Customer is experiencing a Performance Problem, Exodus will take all
actions necessary to determine the source of the Performance Problem. Both
parties will use reasonable efforts to inform one another of any Performance
Problem, and to notify one another that Customer may be eligible for Service
Credits as a result of the Performance Problem. Customer shall have fourteen
(14) business days from the date Customer discovers or is notified by Exodus
that Customer is eligible for Service Credits as a result of a particular
Performance Problem to request such Service Credits, or such Service Credits
shall be deemed waived; a request for Service Credits may be made via email.
(i) Time to Discover Source of Performance Problem;
Notification of Customer. If Exodus discovers or receives notice of a
Performance Problem, Exodus will, within 30 minutes, page the Customer and
advise of the Performance Problem provided that Customer has provided a pager
number for such use. Within two (2) hours of discovering or receiving notice of
the Performance Problem, Exodus will determine whether the source of the
Performance Problem is limited to the Customer Equipment and the Exodus
equipment connecting the Customer Equipment to the Exodus LAN. If Exodus
determines that the Customer Equipment and Exodus connection are not the source
of the Performance Problem, Exodus will determine the source of the Performance
Problem within an additional two (2) hour period. In any event, Exodus will
notify Customer of the source of the Performance Problem within sixty (60)
minutes of identifying the source.
(ii) Remedy of Packet Loss and Latency. If the source of the
Performance Problem is within the sole control of Exodus, Exodus will remedy the
Performance Problem within two (2) hours of determining the source of the
Performance Problem. If the source of and remedy to the Performance Problem
reside outside of the Exodus LAN or WAN, Exodus will use commercially reasonable
efforts to notify the party(ies) responsible for the source of the Performance
Problem and cooperate with it (them) to resolve such problem as soon as
possible.
(iii) Failure to Determine Source and/or Remedy. In the event
that Exodus (A) is unable to determine the source of the Performance Problem
within the time periods described in subsection (i) above and/or; (B) Exodus is
the sole source of the Performance Problem and is unable to remedy such
Performance Problem within the time period described in subsection (ii) above,
Exodus will deliver a Service Credit to Customer for each two (2) hour period in
excess of the time periods for identification and resolution described above.
(d) Remedies Shall Not Be Cumulative. A Service Credit shall be
issued in the Exodus invoice in the month following the Downtime or Performance
Problem, unless the Service Credit is due in Customer's final month of Service.
In such case, a refund for the dollar value of the Service Credit will be mailed
to Customer. Customer shall also be eligible to receive a pro-rata refund for
(i) Downtime periods and Performance Problems for which Customer does not
receive a Service Credit and (ii) any Service(s) Exodus does not deliver to
Customer for which Customer has paid.
(e) Termination Option for Chronic Problems. Customer may terminate
this Agreement for cause and without penalty by notifying Exodus within seven
(7) days following the end of a calendar month in the event either of the
following occurs: (i) Customer is entitled to more than seven (7) Service
Credits for Downtime or Performance Problems resulting from two (2) or more
nonconsecutive Downtime or Performance Problems events during the calendar
month; or (ii) Customer experiences more than four (4) consecutive hours of
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Downtime due to any single event Such termination will be effective upon receipt
of such notice by Exodus.
(f) The service level warranty set forth in this section 5.2 shall
only apply to the bandwidth and facilities Service(s) provided by exodus and,
does not apply to (i) any professional services; (ii)any supplemental services;
and (iii) any Service(s) that expressly exclude this service level warranty (as
stated AND INITIALED BY THE PARTIES on the order form OR IN THE SPECIFICATION
SHEETS for such Service(s)). Except with respect to willful misconduct or
negligence by Exodus, This Section 5.2 AND SECTION 10 states customer's sole and
exclusive remedies for any failure by Exodus to provide Service(s).
5.3 Service Performance Warranty. Exodus warrants that it will perform the
Service(s) in a manner consistent with industry standards reasonably applicable
to the performance thereof.
5.4 Selection of Exodus Supplied Equipment; Manufacturer Warranty.
Customer acknowledges that it has selected the Exodus Supplied Equipment. Except
with respect to any express warranties for Service(s) related to Exodus Supplied
Equipment, Customer acknowledges and agrees that its use and possession of the
Exodus Supplied Equipment by Customer shall be subject to and controlled by the
terms of any manufacturer's or, if appropriate, supplier's warranty. Customer
agrees to look solely to the manufacturer or, if appropriate, supplier with
respect to all mechanical, service and other claims, and the right to enforce
all warranties made by said manufacturer are hereby, to the extent Exodus has
the right, assigned to Customer.
5.5 No Other Warranty. Except for the express warranties set forth in this
section 5, the Service(s) are provided on an "as is" basis, and Customer's use
of the Service(s) is at its own risk. Exodus does not make, and hereby
disclaims, any and all other Express and/or implied warranties, including, but
not limited to, warranties of merchantability, fitness for a particular purpose,
noninfringement and title, and any warranties arising from a course of dealing,
usage, or trade practice. Except as expressly set forth herein, Exodus does not
warrant that the Service(s) will be uninterrupted, error-free, or completely
secure.
5.6 Disclaimer of Actions Caused by and/or Under the Control of Third
Parties. Exodus does not and cannot control the flow of data to or from Exodus'
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 of such third parties can impair or disrupt
customer's connections to the Internet (or portions thereof). Although Exodus
will use commercially reasonable efforts to take all actions it deems
appropriate to remedy and avoid such events, exodus cannot guarantee that such
events will not occur. Accordingly, Exodus disclaims any and all liability
resulting from or related to such events unless caused by the willful misconduct
or negligence of Exodus.
6. Customer Obligations.
6.1 Warranties of Customer.
(a) General. Customer represents and warrants that (i) it has the
legal right and authority, and will continue to own or maintain the legal right
and authority, during the term of this Agreement, to place and use any Customer
Equipment as contemplated under this Agreement; (ii) the performance of its
obligations and use of the Service(s) will not violate any applicable laws,
regulations or the Rules and Regulations, or cause a breach of any of Customer's
agreements with any third parties, or unreasonably interfere with other Exodus
customers' use of Exodus services (e.g., diverting power from another Customer's
equipment, turning off power, intentionally causing sprinkler system to go on)
and (iii) all equipment, materials and other tangible items placed by Customer
at Internet Data Centers will be used in compliance with all applicable
manufacturer specifications.
(b) Breach of Warranties. In the event of any material breach of any
of the foregoing warranties, in addition to any other remedies available at law
or in equity, Exodus will have the right, in its sole reasonable discretion, to
suspend immediately any related Service(s) if deemed reasonably necessary by
Exodus to prevent any harm to Exodus and its business. Exodus will provide
written notice prior to suspension and opportunity to cure if practicable
depending on the nature of the breach. Once cured, Exodus will promptly restore
the Service(s).
6.2 Compliance with Law and Rules and Regulations. Customer agrees that it
will use the Service(s) only for lawful purposes and in accordance with this
Agreement. Customer will comply at all times during the term of this Agreement
with all applicable laws and regulations and the Rules and Regulations, as
updated by Exodus from time to time. The Rules and Regulations are incorporated
herein and made a part hereof by this reference. Exodus may change the Rules and
Regulations upon fifteen (15) days' notice to Customer, which notice may be
provided by posting such new Rules and Regulations at the Exodus Web site
identified in the Rules and Regulations and notifying Customer by written
notice. Customer agrees that it has received, read and understands the current
version of the Rules and Regulations. The Rules and Regulations contain
restrictions on Customer's and Customer's users' online conduct (including
prohibitions against unsolicited commercial email) and contain financial
penalties for violations of such restrictions. Customer agrees to comply with
such restrictions and, in the event of a failure to comply, Customer agrees to
pay the reasonable financial penalties in accordance with the Rules and
Regulations. Customer acknowledges that Exodus exercises no control whatsoever
over the content of the information passing through Customer's site(s) and that
it is the sole responsibility of Customer to ensure that the information it and
its users transmit and receive complies with all applicable laws and regulations
and the Rules and Regulations.
6.3 Access and Security. Except with the advanced written consent of
Exodus, Customer's access to the Internet Data Centers will be limited solely to
the Representatives. Representatives may only access the Customer Area and are
prohibited from accessing other areas of the Internet Data Center(s) unless
accompanied by an authorized Exodus representative.
6.4 Restrictions on Use of Service(s). Customer shall not, without the
prior written consent of Exodus (which may be withheld in its sole discretion),
resell the Service(s) to any third parties or connect Customer Equipment
directly to anything other than the Exodus network, equipment and facilities.
6.5 Relocation of Customer Equipment at Exodus' Request. In the event that
it becomes necessary to relocate the Customer Equipment to another Customer Area
or Internet Data Center operated by Exodus, Customer will cooperate in good
faith with Exodus to facilitate such relocation, provided that such relocation
is based on reasonable business needs of Exodus (including the needs of other
Exodus customers), the expansion of the space requirements of Customer or
otherwise. Exodus shall be solely responsible for all costs and expenses
incurred by Exodus in connection with any such relocation and will use
commercially reasonable efforts, in cooperation with Customer, to minimize and
avoid any interruption to the Service(s). If such relocation is more than ten
(10) miles away from the initial Internet Data Center, Customer will have right
to immediately terminate this Agreement. Exodus agrees not to relocate Customer
Equipment without Customer's prior consent and at Customer's sole discretion.
6.6 Exodus Supplied Equipment.
(a) Delivery and Term. On or prior to the Service Commencement Date,
Exodus shall deliver to Customer, at the designated Customer Area, the Exodus
Supplied Equipment. Customer shall have the right to use the Exodus Supplied
Equipment for the Initial Term set forth in the Order Form and any additional
period agreed to in writing by Exodus. Customer shall not remove any Exodus
Supplied Equipment from the Customer Area(s) without the prior written consent
of Exodus.
(b) Title. The Exodus Supplied Equipment shall always remain the
personal property of Exodus. Customer shall have no right or interest in or to
the Exodus Supplied Equipment except as provided in this Agreement and the
applicable Order Form and shall hold the Exodus Supplied Equipment subject and
subordinate to the rights of Exodus. Customer agrees to execute UCC
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financing statements as and when requested by Exodus and hereby appoints Exodus
as its attorney-in-fact to execute such financing statements on behalf of
Customer. Customer will, at its own expense, keep the Exodus Supplied Equipment
free and clear from any liens or encumbrances of any kind (except any caused by
Exodus) and will indemnify and hold Exodus harmless from and against any loss or
expense caused by Customer's failure to do so. Each party shall give the other
immediate written notice of any attachment or judicial process affecting the
Exodus Supplied Equipment or Exodus' ownership. Customer will not remove, alter
or destroy any labels on the Exodus Supplied Equipment stating that it is the
property of Exodus and shall allow the inspection of the Exodus Supplied
Equipment at any time.
(c) Use, Maintenance and Repair. Customer will, at its own expense,
keep the Exodus Supplied Equipment in good repair, appearance and condition,
other than normal wear and tear, and, if not included in the Services, shall
obtain, pay for and keep in effect through the Initial Term a hardware and
software maintenance agreement with the manufacturer or other party acceptable
to Exodus. All parts furnished in connection with such repair and maintenance
shall be manufacturer authorized parts and shall immediately become components
of the Exodus Supplied Equipment and the property of Exodus. Customer shall use
the Exodus Supplied Equipment in compliance with the manufacturer's or
supplier's suggested guidelines.
(d) Upgrades and Additions. Customer may affix or install any
accessory, addition, upgrade, equipment or device on to the Exodus Supplied
Equipment (other than electronic data) ("Additions") provided that such
Additions (i) can be removed without causing material damage to the Exodus
Supplied Equipment; (ii) do not reduce the value of the Exodus Supplied
Equipment and (iii) are obtained from or approved in writing by Exodus and are
not subject to the interest of any third party other than Exodus. Any other
Additions may not be installed without Exodus' prior written consent. At the end
of the Initial Term, Customer shall remove any Additions which (i) were not
provided by Exodus and (ii) are readily removable without causing material
damage or impairment of the intended function, use, or value of the Exodus
Supplied Equipment, and restore the Exodus Supplied Equipment to its original
configuration. Any Additions, which are not so removable, will become the
property of Exodus (lien free).
7. Insurance.
7.1 Exodus Minimum Levels. Exodus agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers' compensation insurance in an amount not less
than that required by applicable law. Exodus agrees that it will ensure and be
solely responsible for ensuring that its contractors and subcontractors maintain
insurance coverage at levels no less than those required by applicable law and
customary in Exodus' and its agents' industries.
7.2 Customer Minimum Levels. In order to provide customers with physical
access to facilities operated by Exodus and equipment owned by third parties,
Exodus is required by its insurers to ensure that each Exodus customer maintains
adequate insurance coverage. Customer agrees to keep in full force and effect
during the term of this Agreement: (i) comprehensive general liability insurance
in an amount not less than $2 million per occurrence for bodily injury and
property damage and (ii) workers compensation insurance in an amount not less
than that required by applicable law. Customer agrees that it will ensure and be
solely responsible for ensuring that its agents (including contractors and
subcontractors) maintain insurance coverage at levels no less than those
required by applicable law and customary in Customer's and its agents'
industries.
7.3 Certificates of Insurance. Prior to installation of any Customer
Equipment in the Customer Area, Customer will deliver to Exodus certificates of
insurance which evidence the minimum levels of insurance set forth above.
8. Limitations of Liability.
8.1 Personal Injury. Each Representative and any other person visiting an
Internet Data Center does so at its own risk. Exodus assumes no liability
whatsoever for any harm to such persons resulting from any cause other than the
negligence or willful misconduct of exodus.
8.2 Damage to Customer Equipment. Exodus assumes no liability for any
damage to, or loss of, any Customer Equipment resulting from any cause other
than the negligence or willful misconduct of exodus. To the extent Exodus is
liable for any damage to, or loss of, Customer Equipment for any reason, such
liability will be limited solely to the then-current replacement value of the
Customer Equipment, excluding lost data , software and firmware.
8.3. Consequential Damages Waiver. Except for a breach of section 4.1
("Confidential Information") and except in connection with matters covered by
section 9.1 ("Indemnification") of this agreement, in no event will either party
be liable or responsible to the other for any type of incidental, punitive,
indirect or consequential damages, including, but not limited to, lost revenue,
lost profits, replacement goods, loss of technology, rights or services, loss of
data, or interruption or loss of use of service or equipment, even if advised of
the possibility of such damages, whether arising under theory of contract, tort
(including negligence), strict liability or otherwise.
8.4. Basis of the Bargain; Failure of Essential Purpose. The parties
acknowledge that Exodus has set its prices and entered into this Agreement in
reliance upon the limitations of liability and the disclaimers of warranties and
damages 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 found to have failed of their essential purpose.
9. Indemnification.
9.1. Indemnification. Each party (the "Indemnifying Party") will indemnify,
defend and hold the other party (the "Indemnified Party") harmless from and
against any and all costs, liabilities, losses, and expenses (including, but not
limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from
any claim, suit, action, or proceeding (each, an "Action") brought by any third
party against the other or its affiliates alleging (A)if Exodus is the
Indemnifying Party: the Exodus Technology the Service(s), the Professional
Services or the Work infringes any intellectual property right (but excluding
any claim to the extent the infringement was contributorily caused by Customer),
or involves the wrongful use of any trade secret or confidential or proprietary
information; (ii) personal injury or property damage caused by the negligence or
willful misconduct of Exodus, its Representatives or designees; and/or (iii) any
violation by Exodus of or failure of Exodus to comply with the Rules and
Regulations.
(B) if Customer is the Indemnifying Party: (i) Customer's use of the Exodus
Technology, the Service(s), the Professional Services or the Work infringes any
intellectual property right or involves the wrongful use of any trade secret or
confidential or proprietary information (but only to the extent that the claim
would not have arisen had Customer's use not occurred); (ii) personal injury or
property damage caused by the negligence or willful misconduct of Customer, its
Representatives or designees (not including Exodus); (iii) any violation by
Customer of or failure of Customer to comply with the Rules and Regulations;
and/or (iv) except for losses caused by the willful misconduct or negligence of
Exodus, Customer will indemnify, defend and hold Exodus, its affiliates and
customers harmless from and against any and all Losses resulting from or arising
out of any Action brought against Exodus, its affiliates or customers alleging
any damage or destruction to the Customer Area, the Internet Data Centers,
Exodus equipment or other customer equipment caused by Customer, its
Representative(s) or designees (not including Exodus).
9.2 Notice. Each party's indemnification obligations hereunder shall be
subject to (i) receiving prompt written notice of the existence of any Action;
(ii) being able to, at its option, control the defense of such Action; (iii)
permitting the indemnified party to participate in the defense of any Action;
and (iv) receiving full cooperation of the indemnified party in the defense
thereof.
10. Termination.
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10.1. Termination of Services For Convenience Following Initial Term. The
Service(s) may be terminated for convenience in accordance with the terms set
forth in paragraph 2.2(b) of this Agreement.
10.2. Termination For Cause. Either party may terminate this Agreement if:
(i) the other party breaches any material 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 must be
cured within five (5) days after receipt of written notice from Exodus; (ii) the
other party 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 (iii) the other party 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. Customer may also terminate this Agreement in
accordance with the terms set forth in paragraph 5.2(a)(f) ("Termination Option
For Chronic Problems") or paragraph 6.5 ("Relocation of Customer Equipment") of
this Agreement.
10.3 No Liability for Termination. Neither party will be liable to the
other for any termination or expiration of any Service or this Agreement in
accordance with its terms.
10.4. Effect of Termination. Upon the effective date of termination of
this Agreement:
(a) Exodus will immediately cease providing the Service(s);
(b) any and all payment obligations of Customer under this Agreement
for Service(s) provided through the date of termination will immediately become
due;
(c) within thirty (30) days of such termination, each party will
return all Confidential Information of the other party in its possession 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) within five (5) days of such termination Customer shall (i)
remove from the Internet Data Centers all Customer Equipment (excluding any
Exodus Supplied Equipment) and any other Customer property; (ii) deliver or make
available all Exodus Supplied Equipment to an authorized representative of
Exodus, and (iii) return the Customer Area to Exodus in the same condition as it
was on the Service Commencement Date for the Customer Area, normal wear and tear
excepted. If Customer does not remove the Customer Equipment and its other
property within such five-day period, Exodus will have the option to (i) move
any and all such property to secure storage and charge Customer for the cost of
such removal and storage, and/or (ii) upon fifteen (15) days' prior written
notice, liquidate the property in any reasonable manner.
10.5. Customer Equipment as Security. In the event that Customer fails to
pay Exodus all undisputed amounts owed Exodus under this Agreement when due,
Customer agrees that, upon delivery of written notice to Customer, Exodus may
(i) restrict Customer's physical access to the Customer Area and Equipment;
and/or (ii) take possession of any Customer Equipment and store it, at
Customer's expense, until taken in full or partial satisfaction of any lien or
judgment, all without being liable to prosecution or for damages.
10.6. Survival. The following provisions will survive any expiration or
termination of the Agreement: Sections 3, 4.1, 4.2, 4.4, 5.5, 6.6(d), 8, 9, 10
and 11 (excluding 11.3).
11. Miscellaneous Provisions.
11.1 Force Majeure. Except for the obligation to make payments, neither
party will be liable for any failure or delay in its performance under this
Agreement 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 (not resulting from the
actions or inactions of Exodus), provided that the delayed party: (a) gives the
other party prompt notice of such cause, and (b) uses its reasonable commercial
efforts to promptly correct such failure or delay in performance. If Exodus is
unable to provide Service(s) for a period of seven (7) consecutive days as a
result of a continuing force majeure event, Customer may cancel the Service(s)
immediately.
11.2 No Lease; Agreement Subordinate to Master Lease. This Agreement is a
services agreement and is not intended to and will not constitute a lease of any
real property. Customer acknowledges and agrees that (i) it has been granted
only a license to occupy the Customer Area and use the Internet Data Centers and
any equipment provided by Exodus in accordance with this Agreement; (ii)
Customer has not been granted any real property interest in the Customer Space
or Internet Data Centers; (iii) Customer has no rights as a tenant or otherwise
under any real property or landlord/tenant laws, regulations, or ordinances; and
(iv) this Agreement, to the extent it involves the use of space leased by
Exodus, shall be subordinate to any lease between Exodus and its landlord(s).
11.3 Marketing. Provided that prior written approval is obtained, each
party agrees that the other party may refer to the other by trade name and
trademark, and may briefly describe the other's business, in marketing materials
and on its web site. Notwithstanding the foregoing, Customer hereby consents to
Exodus's inclusion of Customer's name in a customer listing published in a
prospectus or annual report, provided Customer is not the sole customer listed.
Each party hereby grants the other party a license to use any tradenames and
trademarks solely in connection with the rights granted to the other in this
Section 11.3.
11.4 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.
11.5. Non-Solicitation. During the Term of this Agreement and continuing
through the first anniversary of the termination of this Agreement, Customer
agrees that it will not, and will ensure that its affiliates do not, directly
solicit or attempt to solicit for employment any persons employed by Exodus who
has provided Services to and interacted directly with Customer under this
Agreement or contracted by Exodus to provide Services to Customer. During the
Term of this Agreement and continuing through the first anniversary of the
termination of this Agreement, Exodus agrees that it will not, and will ensure
that its affiliates do not, directly solicit or attempt to solicit for
employment any persons employed by Customer who has received Services from
Exodus and interacted directly with Exodus under this Agreement.
11.6. Third Party Beneficiaries. Exodus and Customer agree that, except as
otherwise expressly provided in this Agreement, there shall be no third party
beneficiaries to this Agreement, including but not limited to the insurance
providers for either party or the customers of Customer.
11.7. Governing Law; Dispute Resolution. This Agreement is made under and
will be governed by and construed in accordance with the laws of the State of
California (except that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences, or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim, or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, shall finally be settled by arbitration in accordance with the
Arbitration Rules (and if Customer is a non-U.S. entity, the International
Arbitration Rules) of the American Arbitration Association ("AAA"). There will
be three (3) arbitrators (the "Arbitration Tribunal"), the first of which will
be appointed by the claimant in its notice of arbitration, the second of which
will be appointed by the respondent within thirty (30) days of the appointment
of the first arbitrator and the third of which will be jointly appointed by the
party-appointed arbitrators within thirty (30) days thereafter. The language of
the arbitration shall be English. The Arbitration Tribunal will not have the
authority to award punitive damages to either party. Each party shall bear its
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own expenses, but the parties will share equally the expenses of the Arbitration
Tribunal and the AAA. This Agreement will be enforceable, and any arbitration
award will be final, and judgment thereon may be entered in any court of
competent jurisdiction. The arbitration will be held in San Francisco,
California, USA. Notwithstanding the foregoing, claims for preliminary
injunctive relief, other pre-judgment remedies, and claims for Customer's
failure to pay for Service(s) in accordance with this Agreement may be brought
in a state or federal court in the United States with jurisdiction over the
subject matter and parties.
11.8. Severability; Waiver. In the event any provision of this Agreement
is held by a tribunal of competent jurisdiction to be contrary to the law, the
remaining provisions of this Agreement will remain in full force and effect. The
waiver of any breach or default of this Agreement will not constitute a waiver
of any subsequent breach or default, and will not act to amend or negate the
rights of the waiving party.
11.9. Assignment. Either party may assign this Agreement in whole as part
of a corporate reorganization, consolidation, merger, or sale of substantially
all of its assets. Customer may not otherwise assign its rights or delegate its
duties under this Agreement either in whole or in part without the prior written
consent of Exodus, and any attempted assignment or delegation without such
consent will be void. Exodus may assign this Agreement in part or delegate the
performance of certain Services to third parties, including Exodus' wholly owned
subsidiaries, provided Exodus controls the delivery of such Services to Customer
and remains responsible to Customer for the delivery of such Services. Exodus
agrees, however, not to assign the Service(s) to another Internet Service
Provider without the prior consent of Customer. This Agreement will bind and
inure to the benefit of each party's successors and permitted assigns.
11.10 Notice. Any notice or communication required or permitted to be
given hereunder may be delivered by hand, deposited with an overnight courier,
sent by email, confirmed facsimile, or mailed by registered or certified mail,
return receipt requested, postage prepaid, in each case to the address of the
receiving party as listed on the Order Form or at such other address as may
hereafter be furnished in writing by either party to the other party. Such
notice will be deemed to have been given as of the date it is delivered, mailed,
emailed, faxed or sent, whichever is earlier.
11.11. Relationship of Parties. Exodus and Customer are independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between Exodus and
Customer. Neither Exodus 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.
11.12. Entire Agreement; Counterparts; Originals. This Agreement, including
all documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and oral,
regarding such subject matter. 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. Once signed, any
reproduction of this Agreement made by reliable means (e.g., photocopy,
facsimile) is considered an original. This Agreement may be changed only by a
written document signed by authorized representatives of Exodus and Customer in
accordance with this Section 11.12. For purposes of this Agreement, the term
"written" means anything reduced to a tangible form by a party, including a
printed or hand written document, e-mail or other electronic format.
11.13 Interpretation of Conflicting Terms. In the event of a conflict
between or among the terms in this Agreement, the Order Form(s), the
Specification Sheet(s), the Statement(s) of Work, and any other document made a
part hereof, the documents shall control in the following order: the Order Form
with the latest date, the Statement of Work, Specification Sheets, the Agreement
and other documents.
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Authorized representatives of Customer and Exodus have read the foregoing and
all documents incorporated therein and agree and accept such terms effective as
of the date first above written.
CUSTOMER EXODUS COMMUNICATIONS, INC.
HOMEGROCER.COM, INC.
Signature: /s/ Rex L. Carter Signature: /s/ Susan Irvine
---------------------------- -------------------------
Print Name: Rex L. Carter Print Name: Susan Irvine
--------------------------- ------------------------
Title: SR. V.P Title: Manager, Contracts
---------------------------- -------------------------
Date: 6/30/00 Date: 7/5/00
---------------------------- -------------------------
This Agreement incorporates the following documents:
Order Form(s)
Specification Sheet(s)
Statement(s) Of Work (If Applicable)
Registration Form
Addendum A (Equipment Purchase Terms and Conditions)
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Addendum A
Equipment Purchase Terms and conditions
1. SHIPPING AND HANDLING. All equipment purchased by Customer (the
"Equipment") is provided FOB Santa Clara, California. Shipment will be made as
specified by Customer and Customer is solely responsible for all expenses in
connection with the delivery of the Equipment. The Equipment will be deemed
accepted by Customer after twenty four hours inspection.
2. PURCHASE PRICE AND TAXES. Customer shall pay to Exodus the
purchase price set forth in the applicable Order Form ("Purchase Price") for
each item of Equipment. Customer hereby grants and Exodus reserves a security
interest in the Equipment and the proceeds thereof as a security for its
obligations hereunder until payment of the full Purchase Price to Exodus. The
Purchase Price is due and payable prior to delivery of the Equipment. Customer
shall pay all taxes and other governmental charges assessed in connection with
the rental, use or possession of the Equipment including, without limitation,
any and all sales and/or use taxes and personal property taxes (other than taxes
on Exodus' net income).
3. TITLE. Exodus represents and warrants that it has good and
marketable title to each item of Equipment, free an clear of all liens, charges
and encumbrances whatsoever, and that Customer shall acquire title to the
Equipment upon full payment of the purchase price(s) set forth herein.
Notwithstanding the foregoing, Exodus and any licensor of rights to Exodus shall
retain title to and rights in the intellectual property (whether or not subject
to patent or copyright) and content contained in the materials supplied under
the terms of this Agreement.
4. SELECTION OF EQUIPMENT; MANUFACTURER WARRANTY. Customer
acknowledges that is has selected the Equipment and disclaims any statements
made by Exodus. Customer acknowledges and agrees that use and possession of the
Equipment by Customer shall be subject to and controlled by the terms of any
manufacturer's or, if appropriate, supplier's warranty, and Customer agrees to
look solely to the manufacturer or, if appropriate, supplier with respect to all
mechanical, service and other claims, and all applicable manufacturer and
supplier warranties and the right to enforce all warranties made by said
manufacturer and supplier are hereby, to the extent Exodus has the right,
assigned to Customer. THE FOREGOING WARRANTY TOGETHER WITH THE WARRANTY OF TITLE
IN SECTION 3 ABOVE IS THE EXCLUSIVE WARRANTY AND IS IN LIEU OF ANY ORAL
REPRESENTATION AND ALL OTHER WARRANTIES AND DAMAGES, WHETHER EXPRESSED, IMPLIED
OR STATUTORY. EXODUS HAS NOT MADE NOR DOES MAKE ANY OTHER WARRANTIES OF ANY
KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR OF NONINFRINGEMENT OF THIRD PARTY
RIGHTS AND AS TO EXODUS AND ITS ASSIGNEES, CUSTOMER PURCHASES THE EQUIPMENT "AS
IS".
5. LIMITATION OF LIABILITY. Exodus' entire liability for any damages
which may arise hereunder, for any cause whatsoever, and regardless of the form
of action, whether in contract or in tort, including Exodus' negligence, or
otherwise, shall be limited to the Purchase Price paid by Customer for the
Equipment. IN NO EVENT WILL EXODUS BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF BUSINESS OR PROSPECTIVE
BUSINESS OPPORTUNITIES, PROFITS, SAVINGS, INFORMATION, USE OR OTHER COMMERICAL
OR ECONOMIC LOSS, EVEN IF EXODUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
6. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement is made under
and will be governed by and construed in accordance with the laws of the State
of California (except that body of law controlling conflicts of law) and
specifically excluding from application to this Agreement that law known as the
United Nations Convention on the International Sale of Goods. The parties will
endeavor to settle amicably by mutual discussions any disputes, differences, or
claims whatsoever related to this Agreement. Failing such amicable settlement,
any controversy, claim, or dispute arising under or relating to this Agreement,
including the existence, validity, interpretation, performance, termination or
breach thereof, either party may bring suit in a court of competent
jurisdiction.
7. MISCELLANEOUS. The above terms and conditions are the only terms
and conditions upon which Exodus is willing to sell the Equipment and supersedes
all previous agreements, promises or representations, oral or written.
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