These Open Edge Terms of Service (“Open Edge Terms of Service”) are between Edgio, Inc., its Affiliates and subsidiaries, (together, “Edgio”) and the other signatory to the applicable Order Form (“Service Provider”). The parties agree as follows:
1. Purpose, Scope and Services, Order Form. The Parties are working together to facilitate the expansion of Edgio’s global content delivery network and the rapid deployment of the Edgio Software by utilizing Service Provider’s telecommunications network and related data and communication service offerings in the Territory. As set forth in the Order Form, Edgio will provide or sell Equipment to Service Provider in order to establish a PoP at Service Provider Facility subject to and in accordance with these Open Edge Terms of Service. By executing an Order Form, Edgio agrees to provide Open Edge and Services to Service Provider, and Service Provider agrees to provide Colocation Services, IP Address Services, and Remote Hands Services to Edgio. Service Provider will provide Services in accordance with the Service Level Agreement.
A particular Order Form will become binding on the parties on the later date that such Order Form is signed by Service Provider and Edgio (the “Effective Date”).
2. Provisioning of Equipment. Edgio will make the Equipment available to Service Provider via the shipping company designated by Service Provider as soon as commercially feasible following the Effective Date (the date that Edgio provides the Equipment to the shipping company is the “Delivery Date”). If Service Provider is not purchasing the Equipment, Edgio shall at all times retain title to such Equipment and Service Provider will have no ownership or collateral interest in the Equipment and Service Provider shall, if requested by Edgio and at Edgio’s cost, return the Equipment in accordance with Edgio’s instructions. If Service Provider is purchasing the Equipment, it shall be free of all liens and encumbrances, or any defect affecting title, but is otherwise sold “as is”. Service Provider will be the importer of record and is responsible for shipping the Equipment to the Service Provider Facility, including payment of any import duties and taxes. For the avoidance of doubt, and only when Service Provider is purchasing Equipment from Edgio, title and risk of loss with regard to the Equipment shall pass from Edgio to Service Provider when Edgio provides the Equipment to the shipping company designated by Service Provider.Service Provider assumes all liability for any claims (including third party claims), liabilities, or obligations related to or arising from the ownership or use of any of the Equipment on and after the Delivery Date. Regardless of who owns the Equipment, Edgio will maintain exclusive responsibility for the installation, operation, control, maintenance and uninstallation of the Edgio Software on the Equipment. Once the Equipment is at the Service Provider Facility, any relocation of the Equipment is subject to Edgio’s prior written approval, which shall not be unreasonably withheld. Service Provider shall not unplug or reconfigure the Equipment without Edgio’s prior written approval.
3. Required Capacity, Service Fee. Service Provider agrees to provide Colocation Services as well as Connectivity Services to the Service Provider Network that is at least one hundred and twenty percent (120%) of the rated Content Delivery Capacity for the PoP (such number, the “Required Egress Capacity”). Commencing on the first day of the month following Edgio’s confirmation that Service Provider has provided the Required Egress Capacity at the PoP (the “Service Fee Start Date”), Edgio will pay to Service Provider a monthly service fee as set forth in the Order Form (“Service Fee”), if applicable.
4. Fees and Payments. Service Provider shall pay all invoices in full within forty-five (45) calendar days of the date of invoice. The Equipment sale and purchase, if applicable, contemplated under these Open Edge Terms of Service shall be complete upon Edgio’s receipt of the full Purchase Price from Service Provider. Service Provider’s obligation to pay the Purchase Price or the Implementation Fee shall be absolute and unconditional, irrespective of any defense or any rights of set-off of any kind, and Service Provider shall make all payments free of any deductions, diminution, or set-off. Any late payments will incur interest of 1.5% per month (or maximum rate allowable by law, if less than 1.5% per month) from the invoice date. Nothing in this section will be deemed to limit Edgio’s right to seek judicial intervention at any time regarding any such disputed amount.
Service Provider will invoice Edgio the Service Fee, if any, for the preceding month within 30 days of the end of each calendar month, calculated in accordance with the terms of the Order Form. Edgio will remit payment to Service Provider within forty-five (45) calendar days of receipt of a valid invoice.
5. Taxes. Service Provider is responsible for the import of the Equipment and Edgio Software and for the payment of all Taxes, duties, and fees related to such import. Service Provider is solely responsible for any and all fees, costs, expenses, assessments, or similar charges associated with interconnect or other regulatory charges for ingress or egress of Data into or out of the Territory. Edgio’s Fees are exclusive of all Taxes, levies, or duties imposed by taxing authorities. Service Provider is responsible for payment of all such Taxes, levies, or duties, except for taxes based solely on Edgio’s income. If Edgio has the legal obligation to pay or collect any such amounts for which Service Provider is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Edgio with a valid tax exemption certificate authorized by the appropriate taxing authority (along with an English translation, if applicable) covering such amount.
Each Party is responsible for: (i) personal property Taxes on property it owns, purchases, or leases; (ii) franchise and privilege Taxes on its business; (iii) Taxes based on its net income, except any withholding Tax that may be applicable; (iv) any third party imposed fees; and (v) taxes imposed on it according to applicable law. If Service Provider is required to withhold Taxes on payments to Edgio, Service Provider shall promptly deliver to Edgio an official receipt along with an English translation, if applicable, of any Taxes withheld or other documents necessary to enable Edgio to claim or recover a Tax credit, and Service Provider shall cooperate with Edgio in good faith to assist Edgio in claiming any available credits.
6. Security and Data Security. Both Parties agree to adhere to all applicable privacy laws. Service Provider will implement reasonable and appropriate industry-standard measures at the Service Provider Facility in order to secure the Equipment, and protect the Content and Edgio Software against accidental or unauthorized loss or access. In no event shall such measures be less than the same level of security Service Provider provides for its own equipment. Service Provider will use reasonable efforts to fix any identified security vulnerability. Service Provider will not access or alter the Content.If the Equipment is provided to Service Provider by Edgio, Service Provider shall pay Edgio for the full replacement cost of the Equipment if stolen, damaged or misplaced while at the Service Provider Facilities. Edgio may, upon reasonable notice to Service Provider, enter Service Provider Facilities and access Edgio-owned Equipment.
7. Term. The initial term of an Order Form will begin on the first day of the month following Edgio’s confirmation that Service Provider has provided the Required Egress Capacity at the PoP (the “PoP Activation Date”) and will continue for the period set forth in the Order Form (“Initial Term”). An Order Form will automatically renew for successive periods of one (1) year (each, a “Renewal Term”), unless either party notifies the other of its intent not to renew at least 90 days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable. However, no Order Form shall renew once five (5) years from the PoP Activation Date have passed, in which case the Order Form will terminate upon expiration of the then-applicable Initial Term or Renewal Term. If the Initial Term or any Renewal Term would otherwise expire prior to the end of a calendar month, such term will continue, uninterrupted, until the end of that calendar month. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
8. Termination, Non-Renewal. A party may terminate these Open Edge Terms of Service and all outstanding and effective Order Forms if the other party breaches any material term of these Open Edge Terms of Service and fails to cure such breach within the 30 days following the date of written notice identifying such breach. If the non-breaching party fails to terminate within a reasonable period following such 30-day period, then it will be deemed to have waived its termination right with respect to such uncured breach. In the event a Party terminates an Order Form in accordance with this Section 9, the non-defaulting Party’s obligations to pay any charges that are due to the breaching party shall immediately cease, except with respect to any charges due and payable for the period prior to such termination. Termination shall not prejudice or otherwise affect the rights or liabilities of the Parties with respect to activities prior to such termination. In the event of termination, Edgio will immediately remove the Edgio Software from the Equipment remotely. Service Provider shall provide reasonable cooperation, if necessary, to enable Edgio to remove the Edgio Software.
9. Modification of Terms of Service, Order Form. Edgio reserves the right to modify these Open Edge Terms of Service at any time, upon 60 days prior written notice to Service Provider. Such amendment will become effective at the commencement of the next Renewal Term after the expiration of the 60-day notice period. An Order Form may not be amended except by written agreement of the Parties.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE, ALL REPRESENTATIONS, WARRANTIES, OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED TERMS AS TO CONDITION, QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE OF THE OPEN EDGE SERVICES OR EQUIPMENT, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, WITHOUT LIMITING THE FOREGOING, NEITHER PARTY WARRANTS THAT ITS NETWORK WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR AS EXPRESSLY SET FORTH HEREING, THE EQUIPMENT IS BEING ACQUIRED AND ASSUMED BY SERVICE PROVIDER IN “AS IS, WHERE IS, WITH ALL FAULTS” CONDITION, WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM EDGIO.
11. Licenses and Permits. The performance of each Party’s obligations under these Open Edge Terms of Service is contingent upon the continued operation of Service Provider’s network and each Party obtaining and continuing in effect such approvals, consents, governmental authorizations, licenses and permits as may be required or reasonably deemed necessary by such Party for the performance by it hereunder and as may be satisfactory to it. Each Party shall, at its own expense, obtain and continue, and to have continued, such approvals, consents, governmental authorizations, licenses and permits.
12. Intellectual Property. Service Provider may not reverse engineer, decompile, disassemble, reproduce, copy, or otherwise translate or modify, in whole or in part, any Edgio Software, or attempt to do or direct any other person or entity to do, any of the foregoing. Neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, software, copyrights, service marks, trade names, patents, trade secrets or other form of intellectual property of the other Party or its Affiliates without the express prior written authorization of the other Party.
13. Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a Service Provider/vendor of the other solely in connection with the Services and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.
14. Confidentiality. Either Party may disclose (the “Disclosing Party”) to the other Party (the “Receiving Party”) Confidential Information of the Disclosing Party. Beginning on the Effective Date and continuing until the expiration of two (2) years following the termination of this Agreement, any non-public information, written, oral or in graphic machine-readable or electronic format with respect to this Agreement, the contents of this Agreement, or any information which is otherwise disclosed in connection herewith (“Confidential Information”) will be kept confidential and shall not be disclosed, in whole or in part, to any person other than Affiliates, officers, directors, employees, subcontractors, agents or representatives of a Party (collectively, “Representatives”) who need to know such Confidential Information for the purpose of negotiating, executing, and implementing this Agreement. Each Party agrees to inform its Representatives of the non-public nature of the Confidential Information and to direct such persons to treat such Confidential Information in accordance with the terms of this Section 14. The Receiving Party shall protect Confidential Information in the same manner as it protects its own confidential information, but in any case, using no less than a reasonable degree of care.
Nothing in this Section shall apply to information which: (i) is in or comes into the public domain (other than by breach of this Agreement or of any other duty); (ii) is or has already been independently generated by the Receiving Party; (iii) is lawfully received by the Receiving Party from a third party on an unrestricted basis; (iv) is in the possession of or is known by the Receiving Party prior to the date of this Agreement, to the extent that such Receiving Party is not bound by any existing obligation of confidentiality in respect of such information; (v) is Content; or (vi) is required to be disclosed under any applicable law, rules or regulation in the countries of the Parties.
15. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify and defend the other Party (the “Indemnified Party”) and its Affiliates, employees, officers and directors from any and all third party claims, costs and expenses (including interest, penalties, attorney’s fees and disbursements) arising out of the intentional misrepresentations of the Indemnifying Party or its Representatives including, but not limited to the Indemnifying Party’s Affiliates, or its (or its Affiliates’) employees, agents or sub-contractors. In addition, Edgio shall indemnify and defend Service Provider from any and all third party claims, costs and expenses (including interest, penalties, attorneys’ fees and disbursements) related to any third party claim that Edgio Software directly infringes an issued patent or other intellectual property right in the Territory. In addition, Service Provider shall indemnify, defend and hold harmless Edgio and its Affiliates, employees, officers and directors from any and all third party claims, costs and expenses (including interest, penalties, attorneys’ fees and disbursements) related in any way to Service Provider’s responsibilities and obligations under Sections 6 (Taxes) and 10 (Licenses and Permits).
The Indemnifying Party’s obligation to indemnify pursuant to this Section 15 is contingent upon: (a) the Indemnified Party provides prompt written notice of any claim, cost, or expense to the Indemnifying Party; (b) the Indemnified Party providing the Indemnifying Party with sole control and authority over the defense and/or settlement of such claim; and (c) the Indemnified Party cooperating with the Indemnifying Party (at the Indemnifying Party’s expense) in the defense and/or settlement of such claim upon the Indemnifying Party’s written request.
16. Limitation of Liability. Except for each Party’s obligations under Section 14 (Confidentiality), neither Party shall be liable to the other Party (whether on an indemnity basis or otherwise) for indirect damages, which includes loss of or damage to business, loss of revenue, loss of profit, replacement costs, loss of contracts, loss or liability under any other contract, loss of or damage to reputation, loss of software or data or loss of anticipated savings or for any indirect, general, consequential, exemplary, punitive or special loss or damage whatsoever and howsoever arising whether or not such Party is informed, knew, or should have known, of the possibility of such damages in advance. Neither Party shall be liable to the other Party for any damages resulting from any action taken by one Party at the direction or request of the other Party. For the avoidance of doubt, where one Party instructs the other Party to take any action with respect to the instructing Party’s equipment, facilities, or network, any costs or damages resulting from or arising out of such action shall be the responsibility of the instructing Party, provided the other Party acts reasonably and complies with the instructions provided by the instructing Party.
WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LIABILITY FOR ALL CLAIMS ARISING HEREUNDER, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE IMMEDIATELY PRECEDING SENTENCE DOES NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY, PAYMENT, or indemnification OBLIGATIONS, OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 5.
17. Notice. All notices, requests, waivers and other communications made pursuant to these Terms of Service or an Order Form (each, a “Notice”) must be in writing and will be conclusively deemed to have been duly given upon receipt: (i) when hand delivered to the other party; (ii) when sent by U.S. registered or first class mail (receipt requested and postage prepaid); (iii) when sent by a national or international delivery service (delivery confirmation requested, postage prepaid); or (iv) the next business day (according to recipients local time) when sent by electronic mail. Any Notice sent to a party must be sent to the authorized person for such party listed on the Order Form using the listed physical or electronic mailing address, and Edgio legal (EdgioLegal@edg.io) must be copied on any Notice sent with respect to Sections 10 (Disclaimer of Warranties) through 16 (Limitation of Liability), or 18 (Assignment, Successors) through 27 (Attorneys’ Fees) for such Notice to be valid. Either party may change or supplement the address given in the prior sentence by providing Notice of the new contact person and address in the manner set forth above.
18. Assignment, Successors. Service Provider may not assign or delegate, in whole or in part, by operation of law or otherwise, any right, interest or obligation under these Open Edge Terms of Service to any third party (including its Affiliates), without Edgio’s prior written consent. Such consent will not be unreasonably withheld, conditioned or delayed. Any purported assignment or delegation in violation of this section is null and void. Subject to the two immediately preceding sentences, these Terms of Service and the Operative Documents will be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of the parties (if applicable).
19. Governing Law, Venue. These Open Edge Terms of Service and the Operative Documents are to be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. All disputes and controversies arising out of or in connection with these Open Edge Terms of Service or the Operative Documents will be resolved exclusively in the state and federal courts located in the State of Delaware. Each party agrees to submit to the jurisdiction of such courts and agrees that venue will lie exclusively with such courts.
20. Severability. If any provision or portion of any provision of these Terms of Service or the Operative Documents is held to be invalid, illegal or unenforceable in any respect under any applicable law in any jurisdiction, such provision or portion will be enforced to the maximum extent permissible, and all other provisions shall remain in effect.
21. Entire Agreement. These Open Edge Terms of Service and the Order Form, along with any documents attached hereto or incorporated herein, constitute the entire agreement among the parties with respect to the subject matter hereof and no party shall be liable or bound to any other party in any manner by any warranties, representations, covenants or otherwise, except as specifically set forth in these Open Edge Terms of Service and the Order Form.
22. Conflicting Terms. In the event of conflict, then the controlling priority of the agreements will be in the following order: the Bill of Materials, the Order Form, the Service Level Agreement, the Service Provider Facility Requirements, the Remote Hands Services Requirements, and then these Open Edge Terms of Service.
23. Force Majeure. Neither party is responsible for any failure to perform its obligations under these Open Edge Terms of Service or the Operative Documents if such party is actually prevented from or delayed in performing (the “Prevented Party”) those obligations by an event of force majeure. In any such instance, the Prevented Party must immediately notify the other party giving full particulars of the event of force majeure and the reasons that such event prevents or delays that party from performing its obligations. The Prevented Party must then use commercially reasonable efforts to mitigate the effect of the event of force majeure upon its performance of its obligations. Upon the completion or mitigation of the event of force majeure, the Prevented Party must recommence its performance as soon as reasonably practicable. As used herein, “an event of force majeure” means an event or circumstance that is beyond the control of either party, occurs without the fault or negligence of the Prevented Party, and, through the exercise of reasonable diligence, the Prevented Party was unable to prevent such event or circumstance, including, but not limited to: (i) riot, war (whether or not declared), rebellion, revolution, acts of terrorism, acts of piracy, military insurrection, usurpation of governmental power, or other armed conflicts; (ii) contamination by radiation, nuclear fuel or waste, or other materials that create significant risk to human life; (iii) earthquake, flood, fire, tsunami, tornado or other physical natural disasters, but excluding general weather conditions, regardless of severity; (iv) strikes or industrial disputes at a national level; or (v) destruction or extensive damage of factories, colocation centers, or company headquarters.
24. Counterparts. The Order Form may be executed in two or more counterparts, including counterparts by electronic mail, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.
25. Survival. The provisions regarding preservation and ownership of intellectual property rights, confidential information, limitations of liability, indemnification, payments owed as of termination or expiration (including the accrual of interest on delinquent amounts), and Sections 18 (Assignment, Successors) through 27 (Attorneys’ Fees) will survive the expiration or termination of these Open Edge Terms of Service.
26. Relationship of the Parties. Nothing in these Open Edge Terms of Service or the Operative Documents is intended to, nor shall it be construed to, create any agency, partnership, or joint venture relationship between the parties.
27. Attorneys’ Fees. If, in any action at law or in equity (including arbitration), it is necessary to enforce or interpret any of the terms of these Open Edge Terms of Service, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief that such party may be entitled.
28. Certain Definitions.
“Affiliate” means any entity controlling or controlled by or under common control with a party, where “control” is defined as the ownership of more than 50% of the equity of other voting interests of such entity.
“Colocation Services” means the Service Provider’s provision of space for the installation of the Equipment at the Service Provider Facility as well as uninterrupted and sufficient protected cooling, power and other support.
“Connectivity Services” means Service Provider’s connection of the Equipment to its network past any firewalls.
“Content” or “Data” means all data, regardless of format or owner (including, but not limited to, content, websites, applications and the like), provided or identified to Edgio to be sent or received using Edgio’s Content Delivery Services, and content hosted, stored, or cached by Edgio.
“Open Edge Services” means the Edgio Software as well as Edgio’s configuration and traffic engineering provided to Service Provider to enable the delivery of Content at the PoP, in accordance with the terms herein.
“Equipment” means the servers and related cabling and routing equipment to be purchased by or provided to Service Provider from Edgio, as specifically identified in a bill of materials included in the Order Form.
“Implementation Fee” means the One-Time Fee that Service Provider will pay Edgio for the Equipment, if Edgio is providing (as opposed to selling) Equipment to Service Provider, as set forth in an Order Form. The Implementation Fee will be invoiced immediately following the Effective Date.
“IP Address Services” means Service Provider’s provision of IP addresses to Edgio for the Equipment.
“IP Transit Services” means information transmission services offered by Service Provider to its customers in relation to Internet connectivity and the access and/or exchange of Content.
“Edgio NOC” means Edgio’s 24x7x365 Network Operations Center.
“Edgio Software” means Edgio’s proprietary software being hosted on the Equipment, which is used to send and receive Content via Edgio’s Content Delivery Services.
“Maintenance Fee” means the Monthly Recurring Fee that Service Provider will pay Edgio for the Open Edge Services, if Edgio is providing (as opposed to selling) the Equipment to Service Provider, as set forth in an Order Form.
“Point(s) of Presence” or “PoP(s)” means the Equipment on which the Edgio Software is hosted in Service Provider Facility(ies), as configured by the Parties.
“Purchase Price” means the One-Time Fee that Service Provider will pay Edgio for the Equipment, if Service Provider is purchasing Equipment from Edgio, as set forth in an Order Form. The Purchase Price will be invoiced immediately following the Effective Date.
“Order Form” means an order form, fully executed by the parties, evidencing the Equipment or Services ordered.
“Service Level Agreement” means the service level agreement that defines the service levels by which Service Provider must provide Services to Edgio.
“Service Provider Facility(ies)” means the data center(s) controlled by Service Provider and identified in an Order Form, in which the Equipment will be housed. The Service Provider Facilities must meet the requirements set forth in the Service Provider Facility Requirements document.
“Service Provider NOC” means Service Provider’s Network Operations Center.
“Remote Hands Services” or “RHS” means those Remote Hands Services and provisioning services to be performed on the Equipment by Service Provider in accordance with the Remote Hands Services Requirements. Remote Hands Services shall exclude maintenance to, modification of or any other form of access to, use of or provisioning of the Edgio Software, which shall be the exclusive responsibility of Edgio.
“Services” means the different activities performed and the facilities provided by each Party to the other, to mutually cooperate for the enhancement of their respective services provided to their customers, pursuant to these Open Edge Terms of Service. Specifically, Edgio shall provide Open Edge Services to Service Provider as more specifically set forth herein. Service Provider shall provide Colocation Services, Connectivity Services and Remote Hands Services to Edgio as more specifically set forth herein.
“Territory” means the territory, as specifically identified in an Order Form, where Service Provider provides IP Transit services.
“Taxes” means any national, federal, state, local, municipal, regional, provincial or foreign tax, governmental duty, telecommunication charge or other charges of any kind imposed by any governmental or other taxing authority, including any interest, penalty, addition or other amount related thereto, whether disputed or not.