Registration of Securities of a Small-Business Issuer — Form 10-SB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10SB12G Registration of Securities of a Small-Business 84 323K
Issuer
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 21 66K
Liquidation or Succession
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 5 21K
4: EX-3.2 Articles of Incorporation/Organization or By-Laws 3 16K
5: EX-3.3 Articles of Incorporation/Organization or By-Laws 12 39K
6: EX-4.1 Instrument Defining the Rights of Security Holders 2 14K
7: EX-10.1 Material Contract 10 52K
16: EX-10.10 Material Contract 6 28K
17: EX-10.11 Material Contract 23 78K
18: EX-10.12 Material Contract 53 150K
19: EX-10.13 Material Contract 19 58K
20: EX-10.14 Material Contract 2 17K
21: EX-10.15 Material Contract 20 55K
22: EX-10.16 Material Contract 1 12K
23: EX-10.17 Material Contract 7 48K
24: EX-10.18 Material Contract 2 15K
25: EX-10.19 Material Contract 15 62K
8: EX-10.2 Material Contract 17 53K
26: EX-10.20 Material Contract 8± 42K
27: EX-10.21 Material Contract 10 35K
28: EX-10.22 Material Contract 5 32K
29: EX-10.23 Material Contract 5 33K
30: EX-10.24 Material Contract 5 34K
31: EX-10.25 Material Contract 5 20K
32: EX-10.26 Material Contract 3 21K
33: EX-10.27 Material Contract 17± 78K
34: EX-10.28 Material Contract 3 23K
35: EX-10.29 Material Contract 8 41K
9: EX-10.3 Material Contract 8 30K
36: EX-10.30 Material Contract 4 27K
37: EX-10.31 Material Contract 16 76K
10: EX-10.4 Material Contract 4 23K
11: EX-10.5 Material Contract 6± 33K
12: EX-10.6 Material Contract 10 40K
13: EX-10.7 Material Contract 13 51K
14: EX-10.8 Material Contract 8 24K
15: EX-10.9 Material Contract 2 17K
38: EX-21.1 Subsidiaries of the Registrant 1 10K
39: EX-27.1 Financial Data Schedule (Pre-XBRL) 1 14K
EX-10.27 — Material Contract
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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 ad an original, but all of which together
shall constitute one and the same instrument.
[Download Table]
Customer Signature: /S/ Chris McConn Customer ID#
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(print name): Chris McConn Contract No. C
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Title : V.P. Effective Date:
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Date: 3/15/99 AboveNet Signature
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Company Name: PhotoLoft.com (print name)
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Address:300 Orchard City Dr. Suite 142
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Campbell, CA 95008
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Phone: 408-364-8777
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Fax: 408-364-8778
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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.
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).
Rev. 2 4 1 Page I of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTIAL
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.
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
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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 Go-Location Security Procedures are located at
http://www.above.net In particular, you must establish a password with AboveNet
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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
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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 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.
Rev. 2.4 1 Page 2 of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTIAL
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 a[( 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
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http://www.above.net/html/anti-spam.html. If AboveNet is informed by government
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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, 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.
9.4 YEAR 200O. AboveNet hereby incorporates its Year 2000 Compliance
Disclosure found at http://www.above.netlhtml/y2k.html into this Agreement. If
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Customer experiences any Excess Packet Loss,
Rev. 2.4 1 Page 3 of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTTAL
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 CUSTOMERS
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 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
Rev. 2.4 1 Page 4 of 8 ABOVENET COMMUNICATIONS, INC CONFIDENTIAL
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, 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
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.
Rev. 2.4.1 Page 5 of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTIAL
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 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.L FOR 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 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
Rev. 2.4 1 Page 6 of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTIAL
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 act 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 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 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
Rev. 2.4 1 Page 7 of 8 ABOVENET COMMUNICATIONS, INC. CONFIDENTIAL
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 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 NO. I 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 represent 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 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
Rev. 2 4 1 Page 8 of 8 ABOVENET COMMUNICATIONS. INC. CONFIDENTIAL
50 WEST SAN FERNANDO STREET #1010 SAN JOSE CA 95113 TEL: 408-367-6666 FAX:
408-367-6688 HTTP:HWWW.ABOVE.NET
March 1, 1999
Christopher McConn
Photoloft.com
300 Orchard City Drive
ste. 142
Campbell, CA 95008
Dear Christopher,
it was a pleasure speaking with you, and discussing your requirements, and our
Internet Service Exchange. ABOVENET is pleased to present PHOTOLOFT.COM the
following QUOTATION OF SERVICE for your mission critical, secured, co-located
business server application. I believe that AboveNet is the best possible
choice for your connectivity solution for the following reasons:
SUPPORT AboveNet's entire support focus is MISSION CRITICAL
Co-location service.
BANDWIDTH AboveNet provides non-stop, non congestive GUARANTEED
BANDWIDTH.
MAINTAINABILITY AboveNet's pro-active, automated service reporting
and ALERTING SYSTEM.
The 1.5 Mbps bandwidth included with your space is based upon 5 minute
averages of your actual usage, then
subjected to 95" percentile adjustment. (Additional bandwidth beyond
the 1.5 Mbps is figured this way also.)
Here's how that works:
We sample your actual usage 5 minutes, we then average the total and
post the result as a 5 minute usage point on a
5 minute usage point on your usage graph. Over the month, we will
continue to plot the 5 minute averages, which
total about 8640 points plotted on the graph. We then take the top 5
percent of your usage (432 points) and throw it
out! Your usage is determined based upon the highest remaining usage
plotted. If your usage is at or lower than 5
Mbps AFTER we've taken off the top 5%, you will not receive any
additional billing. Any usage over the minimum
will be billed at the appropriate rate.
You are automatically placed on a burstable 1OOMbps link. You'll be
able to monitor your bandwidth usage to
understand exactly what your usage is. At the beginning of the
following month, you will get a bill for actual 95t'
percentile usage. If you go over your base of 1.5 Mbps, and wish to
stay on the burstable link, simply pay the bill.
If you want to remain at 1.5 Mbps, simply contact our customer service
department, pay your agreed upon base, and
VOLI will be capped at 1.5 Mbps. Also, AboveNet will only charge for
traffic one way.
This method of billing provides you with a number of advantages.
First, any usage bursts that are untypical of your
bandwidth requirements are riot charged to you. Second, this equates
to receiving your highest 36 hours of
bandwidth usage free each month. Third, like our network, our billing
is scaleable - the cost of entry is reduced and
your bill will only increase as actual bandwidth usage occurs.
AboveNet appreciates this opportunity to be of service to
Photoloft.com. We look forward to a long lasting,
mutually beneficial business relationship. Once you have read this
proposal, please contact me to discuss the
details.
Sincerely,
Todd Mayo 408-367-6621 tmayo@above.net
50 WEST SAN FERNANDO STREET #1010 SAN JOSE CA 95113 Q M
TEL: 408-367-6666 FAX: 408-367-6688 HTTP://WWW.ABOVE.NET
SUPPORT SERVICES
The following AboveNet service offerings are designed to cover commonly
requested support needs of our Network Operations Center (NOC). Customized
support plans are available on a case by case basis.
AUTOMATED PRO-ACTIVE SERVICE (APST") INCLUDED
Every 5 minutes your equipment will be pinged and probed (HTTP, FTP, SNTP, NNTP)
You will need to select who will be notified and at what intervals. A full
description of these and our escalation procedures can be reviewed on our web
site http://www.above.net/html/customer - services.html. At the time of install
your customer service representative will help you select the configuration that
best suits your requirements.
REMOTE HANDS LEVEL 1 INCLUDED
This service is provided at no additional cost, involves the most basic
activities of an AboveNet 24x7 on-duty staff performed with "eyes", "ears" and
"fingers", but without involvement of tools or equipment. Examples of Level I
services would include: pushing a button, switching a toggle, setting a dip
switch, power cycling (turning on and off) equipment, securing cabling to
connections, observing, describing or reporting on indicator lights or display
information on machines or consoles basic observation and reporting on the local
environment in AboveNet's Premises running single, built in diagnostics
equipment typing commands on a keyboard cable organization, ties or labeling
modifying basic cable layout, such as Ethernet connections labeling or/and
re-labeling equipment installation of newly or previously received equipment in
rack space.
REMOTE HANDS LEVEL 2 OPTIONAL $125/HOUR
Provided for a fee, this service involves all the service of level 1, plus
direct contact with equipment configuration, including hardware and software
interaction. Upon request, AboveNet will provide the Customer with a list of
AboveNet's 3rd party partners for advanced service requirement. Please contact
service@above.net for details. Examples of Level 2 services would include:
replacing hardware components with spares or upgrades adding memory upgrading
drive capacity by installation of new or additional disk drives install or
re-install legal software
REMOTE POWER CYCLE FOR REBOOT OPTIONAL $15/MONTH
From time to time many servers require reboot after a notification of a problem.
You can call and have the tech support team re-boot your server, or with a Power
Cycle Port, you can have Remote power reset activated with a Web based
interface. By using this feature, you will be able to reboot remotely. In
addition, if designated, the PPS will automatically reboot your system when a
malfunction is detected.
TAPE BACK UP OPTIONAL $100/MONTH
AboveNet can facilitate daily tape backup of your equipment, To take advantage
of this service, the equipment must have its own tape drive and be accompanied
by a set of tapes. Before installation of the server, configure the software to
back up files to be saved every day. When the server arrives, AboveNet
personnel will verify that backups are operating correctly. AboveNet personnel
will change the tape in your backup unit and retrieve archived tapes when
needed.
DNS ADMINISTRATION OPTIONAL $50/DOMAIN See: http://www.above.net/htmi/ip
and_dns.html Most customers administer their own DNS (Domain Name Service),
however we can administer this for a fee. As names are added or deleted, notify
NOC by E-mail. You will be responsible to notify InterNic of the transfer of
the account to AboveNet.
SECONDARY DNS SERVICE OPTIONAL $]O/DOMAIN
Customer must create name entry first before submitting to InterNic hostmaster.
Customer must "cc" the domain name registration/modification request to
"dns@above.net". Changes to DNS records will be handled by AboveNet as required.
Incorrectly registered domains will be deleted.
TELCO SERVICES AND REMOTE ACCESS OPTIONAL
AboveNet will, assist in co-ordination of the provisioning of telco services to
support your co-location remote access. Ordering of and payment for Telco
services connected to equipment owned by will be your responsibility.
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|---|
50 WEST SAN FERNANDO STREET #1010 SAN JOSE CA 95113
TEL: 408-367-6666 FAX: 408-367-6688 HTTP:HWWW.ABOVE.NET
MARCH 15,1998
QUOTATION OF SERVICE
FOR: PHOTOLOFT.COM
[Enlarge/Download Table]
SERVICE ACTIVATION CHARGES:
---------------------------------------------------
DESCRIPTION OF SERVICE UNITS COST OF SERVICE EXTENSION
Above Net Asymmetric Allocation of Packets (ASAPTM) lncl.
Bandwidth on Demand Feature Incl.
Automated Pro-Active service (APSTM) Incl.
Primary & Secondary DNS service 2 Incl.
IP Address 2 Incl.
Daily Tape Back-up 1 $100.00 $100.00
Remote Access through leased line 0 $250.00
Installation I ('@ Rack Cage) 1 $ 2,500.00 $2,500.00
TOTAL (ONE TIME) $2,600.00
MONTHLYSERVICE RATES- 100 MB S ETHERNET SEGMENT
-----------------------------------------------------
[Download Table]
DESCRIPTION OF SERVICE UNITS COST OF SERVICE EXTENSION
Remote Hands Level I incl.
1.5 Mbps of Bandwidth usage (95" Percentile) incl.
Additional bandwidth usage per Kbps f. 00-.90
Amps of Clean 120V AC Power TBD $ 20.00
Additional Power per Amp $ 20.00
Daily Tape Back Up 1 $100.00 $100.00
Remote Access through Leased Line 0 $ 50.00
Power Cycle for Remote Reboot 0 $ 15.00
Shelf Space 1 (3 Rack Cage) 1 $4,500.00 $4,500.00
TOTAL (MONTHLY)
$4,600.00
ADDITIONAL BANDWIDTH
1-2 Mbps $1.30 per Kbps
---------------------------
2-4 Mbps $1.20 per Kbps
---------------------------
4-10 Mbps $1.10 per Kbps
----------------------------
10-20 Mbps $1.00 per Kbps
-----------------------------
Over 20 Mbps$.95 per Kbps
-----------------------------
TOTAL AMOUNTS DUE UPON SIGNING:
-----------------------------------
TOTAL SERVICE ACTIVATION $2,600.00
FIRST MONTH'S SERVICE $4,600.00
LAST MONTH'S SERVICE $4,600.00
TOTAL: $11,800.00
TERM: 1 YEAR
SERVICE ORDER AUTHORIZED BY: Print Name Chris McConn Title V.P Engineering
------------ ---------------------
Company: PhotoLoft.com
Signature: s. Chris McConn Date: 3/15/99_____________________
----------------------------- -----------------------------------
(signature executes this Service Order) SERVICES AND PRICES ARE TO ABOVENET
SPECIFICATIONS AND SUBJECT TO CHANGE WITHOUT PRIOR NOTIFICATION. QUOTE VALID FOR
30 DAYS.
Quote prepared by: Todd Mayo Tel: 408-367-6621 Fax: 408-367-6688 E-mail:
tmayo@above.net
---------------
PAYMENT INFORMATION
--------------------
Charge Invoice Other
Credit Card # Expiration Date
------------------- ----------------
Name on Card visa Amex Mastercard
------------------- ------------------------------------------------------
Card Holder's Card
-------------------
Signature
Dates Referenced Herein
| Referenced-On Page |
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|---|
| |  |
| Filed on: | | 7/13/99 | | | | | | | None on these Dates |
| | 3/1/99 | | 9 |
| | 10/19/98 | | 4 |
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