Form of Akamai Master Services Agreement

MASTER SERVICES AGREEMENT



BY AND BETWEEN



AKAMAI TECHNOLOGIES, INC.

201 BROADWAY

CAMBRIDGE, MASSACHUSETTS, U.S.A. 02139

PHONE: 617-250-3000

FAX: 617-250-3001



("AKAMAI")





PHONE:_______________

FAX:___________________



("CUSTOMER")

CUSTOMER CONTACT AKAMAI CONTACT



NAME:____________________________ NAME:____________________________

TITLE:_____________________________ TITLE:_____________________________

PHONE:____________________________ PHONE:____________________________

FAX:______________________________ FAX:______________________________

EMAIL:____________________________ EMAIL:____________________________



CUSTOMER CONTACT FOR AKAMAI CONTACT FOR NOTICES



NOTICES



NAME: ____________________________ CONTROLLER, AKAMAI TECHNOLOGIES, INC.

ADDRESS:__________________________ 201 BROADWAY

__________________________ CAMBRIDGE, MASSACHUSETTS, U.S.A. 02139

PHONE: __________________________ PHONE: 617-250-3000

FAX: __________________________ FAX: 617-250-3001



MASTER SERVICES AGREEMENT



This MASTER SERVICES AGREEMENT, consisting o f the terms and conditions set forth below and the attached schedules, each of which is incorporated into and made a part hereof by this reference (the "Agreement"), is entered into by and between AKAMAI TECHNOLOGIES, INC., a Delaware corporation ("Akamai " ), having its principal place of business as set forth on the cover page of this Agreement, and CUSTOMER, a ______ corporation ("Customer"), having its principal place of business as set forth on the cover page of this Agreement, effective as of date set forth in the attached FREEFLOW(SM) ORDER FORM (the "Effective Date").









TERMS AND CONDITIONS



1. SERVICES. Pursuant to the terms and subject to the conditions of this Agreement, Akamai agrees to provide to Customer during the Term (as defined in Section 10.1), the FREEFLOW(SM) services ordered by Customer and described on the attached SCHEDULE A: FREEFLOW(SM) ORDER FORM (the "Services").



2. AKAMAI NETWORK



2.1 NETWORK AVAILABILITY AND OPERATIONS. Akamai shall provi sion, maintain and operate on a twenty-four hour per day, seven days per week, 365 days per year basis, Akamai's geographically distributed network of proprietary web servers (the "Akamai Network"), all network software and peripherals, and all Internet c onnectivity, as necessary to perform the Services in accordance with this Agreement. Akamai shall also staff its Network Operating Center ("NOC") twenty-four hours per day, seven days per week, 365 days per year.



2.2 ACCESS TO AKAMAI NETWORK. Akamai sha ll deliver to Customer one copy of the Software (as defined in Section 4.1), together with all user IDs and passwords as necessary for Customer to access the Akamai Network and utilize the Services in accordance with this Agreement.



2.3 NETWORK SECURIT Y. Akamai shall keep in place network security as reasonably necessary to monitor and protect against unauthorized access to Customer Content (as defined in Section 3.1) while on or within the Akamai Network. Customer acknowledges, however, that the porti o n of the Akamai Network through which Customer Content will pass and the web servers on which Customer Content will be stored will not be segregated or in a separate physical location from web servers on which Akamai's other customers' content is or will be transmitted or stored.



2.4 CAPACITY AND RELIABILITY. Akamai shall maintain adequate capacity on the Akamai Network during the Term as necessary to meet Customer's committed network usage as set forth in the FREEFLOW(SM) ORDER FORM. The Akamai Network will remain distributed geographically and Akamai will keep in place numerous and distributed Internet network connections.



2.5 ADDITIONAL SERVICES. Akamai shall provide Customer with such installation, support, training or other additional services a s may be specified in the FREEFLOW(SM) ORDER FORM or as may be requested by Customer from time to time during the Term and set forth in a separate schedule or addendum agreed to and executed by both parties.







3. CUSTOMER RESPONSIBILITIES.



3.1 CUSTOMER CONTENT; ACCEPTABLE USE GUIDELINES. Customer is and shall be solely responsible for the creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, multimedia images, graphics, a u dio, video, text, data or other objects originating or transmitted from any web site owned or operated by Customer and routed to, passed through and/or stored on or within the Akamai Network or otherwise transmitted or routed using the Services ("Customer Content"). Customer agrees to comply with any "Acceptable Use Guidelines" or other restrictions that may be adopted and made available to Customer by Akamai from time to time during the Term.



3.2 TAGGING OF CONTENT. Without limiting the generality of S ection 3.1 above, Customer shall be responsible for utilizing the RENAME(SM) Software as provided in the Documentation therefore to tag/rename the uniform resource locator ("URL") of the Customer Content to route such Customer Content to the Akamai Networ k . In the event Customer becomes aware that any Customer Content infringes the intellectual property or other rights of a third party, Customer shall remove such Customer Content from Customer's origin server and/or remove the RENAME(SM) URL/tag from such Customer Content so that it will not be routed to and not pass through the Akamai Network.



3.3 MAINTAIN CUSTOMER WEB SITE(S). Customer shall be solely responsible for maintaining the availability of its web site(s), the connectivity of its web site(s) t o the Internet, and all Customer Content, IP addresses, domain names, hyperlinks, databases, applications and other resources as necessary for Customer to operate and maintain its web site(s) to meet Customer's business purposes and objectives.



4. SOFTWARE; RESTRICTIONS.



4.1 LICENSE OF AKAMAI SOFTWARE. Akamai grants Customer a limited, nontransferable and nonexclusive license to use, during the Term, the GeoFlow(SM) and RENAME(SM) software (collectively, the "Software"), together with all related d ocumentation (the "Documentation"), in object code form only, subject to the restrictions set forth below.



4.2 LICENSE RESTRICTIONS. Customer's use of the Software is limited as follows:



4.2.1 Customer shall use the RENAME(SM) software in accordance with the RENAME(SM) Documentation, solely for the purpose of renaming the URL of Customer Content;



4.2.2 Customer shall use the GeoFlow(SM) software for Customer's internal purposes only, solely in conjunction with analyzing the flow of Customer Content that is delivered using the Services.



4.2.3 Customer acknowledges that the GeoFlow(SM) software contains certain third party software elements, including without limitation software relating to the GeoFlow(SM) mapping functions, and Customer agrees with respect to such elements that Customer shall be prohibited from replicating or distributing such mapping images or otherwise using the same other than for Customer's internal business purposes.



4.2.4 Customer shall not, for itself, any affiliate of Custo mer or any third party: sell, license, assign, or transfer the Software or any Documentation; decompile, disassemble, or reverse engineer the Software; copy the Software or any Documentation, except that Customer may make one copy of the Software for back up purposes only (provided Customer reproduces on such copy all proprietary notices of Akamai or its suppliers); or





remove from the Software or any Documentation any language or designation indicating the confidential nature thereof or the proprietary rights of Akamai or its suppliers in such items.



4.3 ADDITIONAL CUSTOMER RESTRICTIONS. Customer shall not: (a) alter or duplicate any aspect of the Software or Documentation, except as expressly permitted under this Agreement; (b) assign, transfer, distri bute, or otherwise provide access to the Software or Services to any third party; (c) provide access to the Software to any third party or use the Software in connection with any third party content; or (d) export, re-export or permit any third party to e xport or re-export the Software or Documentation outside of the territorial limits of the country in which it was originally delivered without appropriate licenses and clearances.



5. INTELLECTUAL PROPERTY RIGHTS.



5.1 CUSTOMER CONTENT; LIMITED LICEN SE TO USE. As between Customer and Akamai, Customer shall own all right, title and interest in and to any Customer Content. During the term of this Agreement, Customer grants to Akamai a limited non-exclusive license to use the Customer Content solely for all reasonable and necessary purposes required or contemplated by this Agreement and for Akamai to perform the Services as contemplated hereunder. Akamai shall not assign, transfer, sell, license, sublicense or grant any or its rights to the Customer Cont e nt to any other person or entity. Akamai acknowledges that the Customer Content constitutes proprietary information and/or trade secrets of Customer or its providers and that the Customer Content is or may be protected by U.S. copyright, trade secret and s imilar laws and certain international treaty provisions. This Agreement does not transfer or convey to Akamai or any third party any right, title or interest in or to the Customer Content or any associated intellectual property rights, but only a limited right of use revocable in accordance with the terms of this Agreement.



5.2 SOFTWARE, DOCUMENTATION AND SERVICES. As between Customer and Akamai, Akamai shall own all right, title and interest in and to the Software, Documentation and Services. Customer acknowledges that the Software, Documentation and Services constitute p roprietary information and trade secrets which are the sole and exclusive property of Akamai or its licensors and that the Software and Documentation are protected by U.S. copyright, trade secret and similar laws and certain international treaty provision s . This Agreement does not transfer or convey to Customer or any third party any right, title or interest in or to the Software, Documentation or Services or any associated intellectual property rights, but only a limited right of use revocable in accordan ce with the terms of this Agreement.



6. PUBLICITY; TRADEMARKS.



6.1 PUBLICITY. Akamai shall be permitted to identify Customer as a customer, to use Customer's name in connection with proposals to prospective customers, to hyperlink from Akamai's web site to Customer's home page, to display Customer's logo on the Akamai web site, and to otherwise refer to Customer in print or electronic form for marketing or reference purposes. Customer agrees to serve as a reference in Akamai's proposals for contact by prospective Akamai customers and analysts. On or about the Effective Date, the parties agree to issue a joint press release announcing Customer's adoption of FreeFlow Services. The press release shall be subject to the approval of each party,





which approval shall not be unreasonably withheld or delayed.



6.2 MARKS; USAGE RESTRICTIONS.



6.2.1 In addition to the rights granted in Section 6.1, each party may display or refer to the other party's proprietary indicia, trademarks, service marks, trade na mes, logos, symbols and/or brand names (collectively "Marks") upon the advance written approval of that party, which approval shall not be unreasonably withheld. Neither party may remove, destroy or alter the other party's Marks. Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, trade names or other proprietary indicia confusingly simila r to the Marks. All use of a party's Marks shall be subject to such party's logo and trademark usage guide, as provided to the other party and as the same may be updated from time to time.



6.2.2 All Marks appearing on or incorporated in the Customer Conte nt are and shall remain, as between Akamai and Customer, the exclusive property of Customer or its providers. All Marks appearing on or incorporated in the Software, Documentation or Services are and shall remain, as between Akamai and Customer, the exclu s ive property of Akamai or its suppliers. Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of t he parties.



7. FEES; PRICING AND PAYMENT TERMS.



7.1 FEES; PAYMENT TERMS. Akamai's current fees for the Services (including license fees, installation charges, service usage fees and other fees) are set forth in the attached FREEFLOW(SM) ORDER FORM. Akamai reserves the right to amend the fees payable hereunder at any time during the Term upon sixty-(60) days' prior notice to Customer. All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties o r similar taxes that may be assessed by any jurisdiction. Amounts due hereunder are payable upon receipt of invoice. Customer agrees to pay a late charge of two percent (2%) per month or the maximum lawful rate, whichever is less, for all amounts not paid within thirty (30) days of receipt of invoice.



7.2 TAXES. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of Akamai) which are imposed by or under the authority of any government or any political subdivision thereof on the fees for any of the Services provided by Akamai under this Agreement shall be borne by Customer and shall not be considered a part of, a deduction from or an offset against such fees.



7.3 ACCURATE RECORDS; RIGHT TO AUDIT. Akamai shall maintain complete and accurate records and log files to support and document the usage fees charged to Customer in connection with this Agreement. Akamai shall, upon written request from Cus tomer, provide access to such records during regular business hours at Akamai's convenience, to an independent auditor(s) chosen by Customer for the purposes of audit. Customer's right to conduct such audits shall be limited to twice in any one calendar y ear.



8. REPRESENTATIONS AND WARRANTIES.



8.1 AKAMAI'S REPRESENTATIONS AND WARRANTIES. Akamai represents and warrants to Customer as follows:



8.1.1 Akamai and its licensors own or possess the necessary rights, title and licenses in and to the Softw are and Services necessary to perform the Services hereunder. Akamai has the right to enter into this Agreement and to perform its obligations hereunder.



8.1.2 Akamai has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.



8.1.3 Akamai shall meet or exceed the network availability, capacity and operations levels as set forth in Sec tion 2 above; provided that Customer's sole remedy for the breach of this provision by Akamai shall be the termination rights set forth in Section 10.2 below.



8.1.4 YEAR 2000 READINESS WARRANTY. Akamai warrants that the Software will be Year 2000 Ready. "Year 2000 Ready" means the ability to: (1) accept input and provide output of data involving dates correctly and without ambiguity as to the twentieth or twenty-first centuries; (ii) manage, store, sort, perform calculations, and otherwise process data i n volving dates before, during, and after January 1, 2000 without malfunction, abends or aborts; and (iii) correctly process leap years including the year 2000. The foregoing warranty is subject to the condition that all other products (e.g., hardware, soft w are, and firmware) which interface with the Services or are used with the Software (including any Customer Content or other elements) properly exchange date data with the Services and/or Software, as the case may be; provided, however, that Akamai covenan t s that it will undertake to obtain a Year 2000 readiness warranty from all hardware vendors, third party software licensors and Internet connectivity providers. In the event Akamai becomes aware that the Software is not Year 2000 Ready, Akamai shall immed i ately notify Customer and promptly correct the Software to eliminate such problem. If Akamai fails to correct any portion of the Software that does not meet the foregoing warranty within a reasonable period of time, Customer shall have the right to immedi ately terminate this Agreement.



8.1.5 WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 8.1, AKAMAI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.



8.2 CUSTOMER'S REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to Akamai as follows:



8.2.1 Customer has the right to enter into this Agreement and to perform its obligations hereunder.



8.2.2 Customer owns and shall own all right, title, and interest in the Customer Content, or possesses or shall possess all legally valid rights in the Customer Content necessary ...